MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                        Sep 22 2015, 9:35 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Craig Persinger                                          Gregory F. Zoeller
Marion, Indiana                                          Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven Cole,                                             September 22, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1501-CR-24
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana J.
Appellee-Plaintiff.                                      Kenworthy, Judge
                                                         Trial Court Cause No.
                                                         27D02-1406-FD-271



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015   Page 1 of 6
[1]   Steven Cole (“Cole”) pleaded guilty to battery1 as a Class A misdemeanor and

      two counts of invasion of privacy,2 each as a Class D felony.3 The battery and

      first invasion of privacy sentences were to be served concurrently but

      consecutive to the second invasion of privacy sentence, for an aggregate term of

      six years executed. Cole appeals and raises the issue of whether his consecutive

      sentences constitute unlawful double enhancement due to the trial court’s use of

      the same prior unrelated conviction of invasion of privacy. Specifically, he has

      raised for our review the issue of whether his consecutive sentences for invasion

      of privacy constitute unlawful double enhancement.


                                      Facts and Procedural History
[2]   On June 25, 2014, Cole was subject to an order prohibiting him from having

      any contact with Mischa Mantz (“Mantz”).4 Despite the order, Cole knowingly

      contacted Mantz and went to her home on that date. Several days later, on

      June 28, 2014, Cole sent his minor son, C.C., and uncle, Oakley Oakerson,

      (“Oakerson”) to Mantz’s home to tell her that Cole was in the hospital, and she

      needed to go with C.C. and Oakerson to see Cole. When Mantz refused, Cole

      directed C.C. to return to her home later in the day and inform her that Cole




      1
          See Ind. Code § 35-42-2-1(a)(1)(A).
      2
          See Ind. Code 35-46-1-15.1(12).
      3
        We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Cole
      committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his
      crimes.
      4
          The no contact order was issued under cause number 27D02-1403-FD-12.


      Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015              Page 2 of 6
      was going to drive his truck into a tree if she did not go to see him. Also, on the

      same date, Cole was involved in a physical altercation with Oakerson. 5


[3]   On June 30, 2014, Cole was charged with battery resulting in bodily injury as a

      Class A misdemeanor and one count of invasion of privacy as a Class D felony

      for the offenses that took place on June 28, 2014. The invasion of privacy

      charge was enhanced to a felony due to Cole’s prior invasion of privacy

      conviction.6 On July 2, 2014, the State amended the information to charge

      Cole with a second count of invasion of privacy for the offense that occurred on

      June 25, 2014. The second invasion of privacy charge was enhanced to a Class

      D felony due to the same prior conviction as the first invasion of privacy

      charge.


[4]   Cole waived his right to a trial by jury and pleaded guilty to all three charges on

      November 28, 2014. At the sentencing hearing on December 22, 2014, the trial

      court stated that “between June 25th and June 28th, Mr. Cole had ample

      opportunity to confine his behavior to the restrictions of the law, but he chose

      not to do so.” Tr. at 58-59. Consequently, the trial court found that the

      invasion of privacy offenses that occurred on June 25, 2014 and June 28, 2014

      were “not a single course of criminal conduct.” Id. The trial court then




      5
       Cole was arrested and pleaded guilty to battery resulting in bodily injury for injuries he inflicted upon his
      uncle Oakerson under this cause number. Appellant’s App. at 44-47. Cole raises no challenge to his battery
      conviction or sentence.
      6
       Cole was convicted of invasion of privacy on February 14, 2012 in the Huntington County Superior Court 1
      under cause number 35D01-1108-FD-162.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015                Page 3 of 6
      proceeded to impose a fully executed sentence of one year for the battery

      conviction and three years for each of the invasion of privacy convictions. The

      battery and first invasion of privacy sentences were to be served concurrent with

      each other but consecutive to the second invasion of privacy sentence, for an

      aggregate term of six years executed. Cole now appeals.


                                     Discussion and Decision
[5]   Sentencing decisions fall within the sound discretion of the trial court and are

      only reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E. 2d 218 (Ind. 2007). “An

      abuse of discretion occurs if the decision is clearly against the logic and effect of

      the facts and circumstances before the court, or the reasonable, probable, and

      actual deductions to be drawn therefrom.” Id. at 490. A trial court may abuse

      its discretion by (1) failing to enter a sentencing statement or (2) entering

      findings of aggravating and mitigating factors that are unsupported by the

      record, omitting facts that were advanced for consideration and clearly

      supported by the record, or including reasons that are improper as a matter of

      law. Id. at 490-91.


[6]   Indiana courts have wrestled with the issue of double enhancements and under

      which circumstances trial courts may impose more severe sentences. See, e.g.,

      Sweatt v. State, 887 N.E.2d 81, 93 (Ind. 2008); Stokes v. State, 947 N.E.2d 1033,

      1037 (Ind. Ct. App. 2011). The general rule regarding multiple enhancement

      sentences is that the trial court cannot impose a “double enhancement ‘absent


      Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015   Page 4 of 6
      explicit legislative direction.’” Nicoson v. State, 928 N.E.2d 660, 663 (Ind. 2010)

      (citation omitted). Consequently, “the crux of these cases revolves around

      what, if any, legislative direction we are given.” Id.


[7]   “There are three types of statutes authorizing enhanced sentences for recidivist

      offenders: the general habitual offender statute; specialized habitual offender

      statutes; and progressive-penalty statutes.” Dye v. State, 972 N.E.2d 853, 857

      (Ind. 2012), aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). The invasion of privacy

      statute is a progressive-penalty statute, which elevates the level of an offense

      with a correspondingly enhanced sentence if the defendant previously has been

      convicted of invasion of privacy. Id.


[8]   Here, the trial court had explicit legislative direction permitting the

      enhancements of each of Cole’s invasion of privacy charges. Ind. Code § 35-46-

      1-15.1(12) (“[T]he offense is a Class D felony if the person has a prior unrelated

      conviction for an offense under this section.”). Moreover, it did not violate the

      Indiana Constitution’s Double Jeopardy Clause when the trial court used the

      same prior invasion of privacy conviction to enhance the two invasion of

      privacy convictions and ordered that they be served consecutively. “The

      Double Jeopardy Clause does not protect a defendant from being convicted of

      multiple counts of the same offense against the same victim.” Minton v. State,

      802 N.E.2d 929, 937-38 (Ind. Ct. App. 2004).


[9]   Additionally, serving consecutive terms for two separate offenses “is not within

      the category of rules precluding the enhancement of each offense based on the


      Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015   Page 5 of 6
       very same behavior.” Sistrunk v. State, No. 49S05-1410-CR-654, 2015 WL

       4597571, at *3 (Ind. July 30, 2015). Cole received two convictions under the

       same statute for two separate and distinct acts. Each invasion of privacy

       offense occurred after Cole’s 2012 conviction, therefore elevating them to

       felonies. We conclude that the trial court acted properly when it enhanced each

       invasion of privacy offense with the prior conviction.


[10]   “Furthermore, with a few exceptions, it is within the trial court's discretion

       whether to order sentences be served concurrently or consecutively.” Myers v.

       State, 27 N.E.3d 1069, 1082 (Ind. 2015). Cole has made no arguments that any

       of the exceptions apply to him or that the trial court has otherwise abused its

       discretion in its sentencing decision. We, therefore, conclude that Cole

       committed two crimes for which he can be punished separately through

       consecutive sentences for an aggregate term of six years executed. The trial

       court did not abuse its discretion in sentencing Cole.


[11]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015   Page 6 of 6
