      MEMORANDUM DECISION
                                                                                       FILED
      Pursuant to Ind. Appellate Rule 65(D),                                      Mar 17 2016, 8:01 am

      this Memorandum Decision shall not be                                            CLERK
                                                                                   Indiana Supreme Court
      regarded as precedent or cited before any                                       Court of Appeals
                                                                                        and Tax Court
      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
      Kristina J. Jacobucci                                    Gregory F. Zoeller
      Newby, Lewis, Kaminski & Jones                           Attorney General of Indiana
      LaPorte, Indiana                                         Karl Scharnberg
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Emily J. Karnes,                                         March 17, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               46A04-1506-CR-554
              v.                                               Appeal from the LaPorte Circuit
                                                               Court
      State of Indiana,                                        The Honorable Thomas J.
      Appellee-Plaintiff.                                      Alevizos, Judge
                                                               Trial Court Cause No.
                                                               46C01-1309-FB-292



      Mathias, Judge.


[1]   Emily Karnes pleaded guilty in LaPorte Circuit Court to Class B felony

      robbery. Karnes appeals and argues that the trial court abused its discretion


      Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016                 Page 1 of 9
      when it ordered her sentence to be served consecutively to sentences previously

      imposed in two other counties. Concluding that the trial court improperly

      imposed a consecutive sentence without clearly articulating the existence of an

      aggravating circumstance to support the imposition of such a sentence, we

      reverse and remand.


                                      Facts and Procedural History

[2]   In 2013, Karnes committed a string of robberies to obtain money to fund her

      heroin addiction. The first of these occurred on August 17 of that year, when

      Karnes went inside a check-cashing and payday loan establishment in LaPorte

      County, Indiana, and requested an employment application. When the

      manager went to retrieve the application, Karnes pulled out a gun, pointed it at

      the manager’s face, and demanded money. Karnes stated that if she was given

      all the money, she would not hurt anyone. The manager complied and gave

      Karnes $1,163. Karnes then put the gun away and fled. On August 26, Karnes

      committed another robbery in Hendricks County. On that same day, she

      committed yet another robbery in Tippecanoe County.1

[3]   The instant appeal involves the LaPorte County robbery described above, the

      first in the string of robberies Karnes committed. On September 6, 2013, the

      State filed an information in LaPorte County charging Karnes with Class B

      felony robbery while armed with a deadly weapon. While these charges were



      1
        The transcript indicates that Karnes committed other crimes in Michigan and Kentucky as a part of her
      crime spree. She was eventually located and arrested in Alabama with her boyfriend.

      Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016            Page 2 of 9
      pending, Karnes pleaded guilty to Class B felony robbery in Hendricks County

      and was sentenced on February 24, 2014, to nine years executed and three years

      suspended to probation. On December 5, 2014, Karnes pleaded guilty in

      Tippecanoe County to Class B felony robbery and was given a similar sentence:

      nine years executed and three years suspended to probation. The trial court in

      Tippecanoe County ordered the sentence in that case to be served consecutive

      to the sentence imposed in Hendricks County.


[4]   In LaPorte County, Karnes pleaded guilty as charged and was sentenced on

      April 17, 2015. The trial court found two mitigating factors:


              1. Defendant has no history of delinquent or criminal activity
              and has led a law-abiding life for a substantial period before the
              commission of the crime.

              2. Defendant’s current character and attitudes indicate that she is
              unlikely to commit another crime.


      Appellant’s App. p. 55.


[5]   The trial court stated several times during the sentencing hearing that it found

      no aggravating circumstances. See Tr. p. 66 (“I think there’s a lot of mitigators

      and not any aggravators.”); Tr. p. 68 (“What about aggravators? I don’t see

      any. Do you?”); Tr. p. 73 (“I’m sentencing her as a first-time offender with

      some mitigators and no aggravators.”); Tr. p. 74 (“I do not find any

      aggravators.”). The court also explicitly found in its sentencing order that “The

      Court finds no aggravating factors.” Appellant’s App. p. 55.



      Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016   Page 3 of 9
[6]   The trial court sentenced Karnes to the minimum sentence of six years with no

      portion of the sentence suspended. Despite Karnes’s request to order her

      sentence to be served concurrently with the sentences imposed in Hendricks

      and Tippecanoe counties, the trial court ordered Karnes’s sentence in the

      instant case to be “consecutive to any sentences received under Cause Numbers

      79D01-1308-FB-023 [the Tippecanoe County case] and 32D03-1308-FB-061

      [the Hendricks County case].” Appellant’s App. p. 56. Karnes now appeals.2


                                         Discussion and Decision

[7]   Karnes claims that the trial court abused its discretion by ordering her sentence

      to be served consecutively to the previously imposed sentences where the trial

      court also explicitly found no aggravating factors.


[8]   Sentencing decisions are generally left to the sound discretion of the trial court,

      and we review the trial court’s decision only for an abuse of this discretion.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. An abuse of discretion occurs if the decision is clearly against the logic and

      effect of the facts and circumstances before the trial court or if the court

      misstates or misinterprets the law. Wilson v. State, 973 N.E.2d 1211, 1213-14

      (Ind. Ct. App. 2012).




      2
        Karnes filed a verified motion to file belated notice of appeal on May 27, 2015, which the trial court
      granted on that same day. Karnes filed her belated notice of appeal on June 5, 2015, and this appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016              Page 4 of 9
[9]    Consecutive sentences are governed by Indiana Code section 35-50-1-2(c),

       which states in relevant part:

                  Except as provided in subsection (e) or (f)[3] the court shall
                  determine whether terms of imprisonment shall be served
                  concurrently or consecutively. The court may consider the:

                       (1) aggravating circumstances in IC 35-38-1-7.1(a); and
                       (2) mitigating circumstances in IC 35-38-1-7.1(b);

                  in making a determination under this subsection. The court may
                  order terms of imprisonment to be served consecutively even if
                  the sentences are not imposed at the same time. . . .


       (emphasis added).4


[10]   Although this statute provides that aggravating and mitigating circumstances

       “may” be a consideration in imposing concurrent or consecutive sentences,

       Indiana’s case law has developed to make the finding of an aggravating

       circumstance a requirement before a consecutive sentence may be imposed.

       Smylie v. State, 823 N.E.2d 679, 686 n.8 (Ind. 2005).




       3
           Neither of these subsections are applicable in the present case.
       4
           Indiana Code section 35-50-1-2(c) further provides:
                However, except for crimes of violence, the total of the consecutive terms of imprisonment,
                exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10 (before its repeal) to
                which the defendant is sentenced for felony convictions arising out of an episode of criminal
                conduct shall not exceed the period described in subsection (d).
       Here, Karnes makes no claim that her robberies constituted an episode of criminal conduct. Even if she did,
       robbery as a Class A or B felony is a crime of violence pursuant to Indiana Code section 35-50-1-2(a)(12).
       Therefore, the episode-of-criminal-conduct provision does not apply.

       Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016                Page 5 of 9
[11]   The trial court here ordered Karnes’s sentence in the instant case to be served

       consecutively to the sentences previously imposed in the other two counties.

       However, as noted above, the trial court explicitly found no aggravating

       circumstances. Karnes therefore argues with some force that the trial court

       erred in ordering her sentence to be served consecutively.


[12]   The State argues that the trial court effectively found an aggravating factor

       when it discussed the issue of consecutive and concurrent sentences with

       Karnes’s trial counsel in the following colloquy:


               THE COURT: The other question I have is: In Hendricks
               County they took the time she had up to the sentencing date. The
               Tippecanoe County Court is silent. Did they not give her —
               MR. PAYNE: It was consecutive, Judge. So she wouldn’t get
               credit on the second case.
               THE COURT: All right. So the question is: As far as the DOC
               knows, she wasn’t given any credit time since the sentencing in
               Hendricks County?
               MR. PAYNE: Exactly.
               THE COURT: So we can use all that time towards this.
               MR. PAYNE: No, because she’s serving a sentence out of
               Tippecanoe right now.
               THE COURT: Well, and that’s my point. The CCS says that
               she has all this credit time. She’s not. So she doesn’t have any
               credit time.
               MR. PAYNE: Well, if we sentence concurrently, absolutely she
               should have credit time. That’s what I’m asking —
               THE COURT: I’m not going to sentence concurrently.
               MR. PAYNE: I’m asking the Court to make its own
               independent judgment as to what this crime is punishable by.
       Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016   Page 6 of 9
               THE COURT: Right.
               MR. PAYNE: What should she get? Sentence her to that
               amount concurrent to what she’s received anywhere else.
               THE COURT: No. It’s clear that the other courts wanted their
               sentences to be consecutive to anything else she has. This is the
               first one and she’s going to get this sentence and —
               MR. PAYNE: Judge, we structured this plea to give the Court
               tremendous discretion.
               THE COURT: I agree.
               MR. PAYNE: For example, Judge, the Court could sentence
               her to, say, 14 years concurrent such that she would have an
               extra two years in addition to —
               THE COURT: I’m not going to sentence her concurrent to anything
               else. This was her first crime. It was independent of the other crimes. I’m
               not going to sentence her to anything concurrent to anything else.
               MR. PAYNE: That’s within the Court’s discretion.

               THE COURT: I understand that. So let’s get that part out. Other
               than that, I think there’s a lot of mitigators and not any
               aggravators; but I want you to tell me what you think the
               mitigators are and the State tell me what they think the
               aggravators are before we get there.


       Tr. pp. 64-66 (emphases added). The State argues that this exchange indicates

       that the trial court did find the fact that this was a separate crime as an

       aggravating factor. We disagree.


[13]   Although the trial court noted that this was an independent crime, it did not

       find that to be an aggravating factor. Instead, after this colloquy, the trial court

       specifically and repeatedly stated that it found no aggravating factors, and even

       noted the lack of aggravating factors in its written sentencing order.

       Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016   Page 7 of 9
[14]   We acknowledge that our supreme court has held that “criminal activity that

       occurs subsequent to the offense for which one is being sentenced is a proper

       sentencing consideration.” Sauerheber v. State, 698 N.E.2d 796, 806 (Ind. 1998)

       (citing Hoage v. State, 479 N.E.2d 1362, 1366 (Ind. Ct. App. 1985)); see also

       Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003). Furthermore, the

       existence of multiple crimes or victims constitutes a valid aggravating

       circumstance that may justify the imposition of consecutive sentences. See

       O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001)). Thus, had the trial court

       actually found Karnes’s convictions for subsequent crimes to be an aggravating

       factor, the imposition of a consecutive sentence would not have been an abuse

       of discretion. However, here, the trial court did not find the subsequent crimes

       and convictions to be aggravating factors and instead explicitly stated that there

       were no aggravating factors.


[15]   We therefore conclude that the trial court was required to specifically identify

       an aggravating factor before it could properly impose a consecutive sentence.

       Where, as here, the trial court specifically finds no aggravating factors, the

       imposition of a consecutive sentence is improper. See Brown v. State, 442 N.E.2d

       1109, 1118 (Ind. 1982) (holding that where trial court specifically found no

       aggravating or mitigating factors, imposition of consecutive sentences was

       improper); see also Lewis v. State, 755 N.E.2d 1116, 1127 (Ind. Ct. App. 2001)

       (holding that trial court erred in imposing consecutive sentences where the

       court failed to articulate any reason for imposing consecutive sentences).




       Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016   Page 8 of 9
                                                  Conclusion

[16]   We conclude that the trial court abused its discretion when it ordered Karnes’s

       six-year sentence to be served consecutively to the sentences previously imposed

       in the other counties because the trial court failed to specifically identify an

       aggravating factor that would support the imposition of a consecutive sentence

       and instead specifically and repeatedly found that there were no such

       aggravating factors. We therefore reverse the trial court’s sentencing order and

       remand with instructions that the trial court enter an amended sentencing order

       directing that Karnes’s six-year sentence be served concurrently with the

       sentences imposed in the other two counties. See Brown, 442 N.E.2d at 1118

       (reversing and remanding with instructions to impose concurrent sentences

       where trial court found no aggravating factors to justify imposition of

       consecutive sentences).


[17]   Reversed and remanded with instructions.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A04-1506-CR-554 | March 17, 2016   Page 9 of 9
