MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                   Dec 30 2016, 7:40 am

court except for the purpose of establishing                     CLERK
                                                             Indiana Supreme Court
the defense of res judicata, collateral                         Court of Appeals
                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Leanna Weissmann                                        Gregory F. Zoeller
Lawrenceburg, Indiana                                   Attorney General of Indiana

                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert A. Davis,                                        December 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        16A04-1609-CR-2053
        v.                                              Appeal from the Decatur Superior
                                                        Court
State of Indiana,                                       The Honorable Matthew D.
Appellee-Plaintiff.                                     Bailey, Judge
                                                        Trial Court Cause No.
                                                        16D01-1603-F3-207



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 1 of 10
[1]   In an open plea, Robert A. Davis pled guilty as charged to Level 3 felony

      aggravated battery (Count 1), Level 5 felony criminal confinement (Count 2),

      Level 5 felony battery (Count 3), and Level 6 felony strangulation (Count 4).

      The trial court entered judgments of conviction and sentences only on Counts

      1, 2, and 3. Davis received an aggregate sentence of fifteen years with six

      months suspended to probation and the remainder executed. Davis presents

      three issues on appeal:

              1. Does the abstract of judgment require correction?


              2. Do Davis’s multiple convictions violate our state prohibitions
              against double jeopardy?


              3. Is Davis’s sentence inappropriate in light of his character and
              the nature of the offenses?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On March 16, 2016, Davis’s girlfriend, J.P., became angry over his use of

      methamphetamine that morning and indicated that she was leaving him. Davis

      refused to give J.P. her cellphone, so she left the home on foot. Davis chased

      her into a neighbor’s driveway as J.P. screamed. He caught up with her and

      slammed her to the ground. Davis then got on top of J.P. and strangled her

      with his hands until she lost consciousness and urinated herself. Thereafter,

      Davis dragged J.P. by the feet across an alley and up a hill to a grassy area


      Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 2 of 10
      behind a house. J.P. eventually regained consciousness and stood up, though

      she did not have her bearings yet. Davis then walked up to her and head butted

      her in the face.


[4]   Neighbors witnessed the incident and called 911. Officer Chris Bridges with the

      Greensburg Police Department arrived right after J.P. was head butted. J.P.

      was visibly shaken and wiping blood from her face. Officer Bridges observed a

      number of injuries to J.P. during his investigation: bloody nose and mouth;

      swelling and bruising to the bridge of her nose; abrasions to her lip, wrist, and

      hands; swollen raised knots on the top of her head; and bruising around her

      neck/collar bone area. Additionally, J.P. complained of pain with respect to

      her nose, head, and throat. J.P. also had an altered voice after the attack.


[5]   Davis was hostile and angry upon his arrest. He stated several times to Officer

      Bridges that he never touched J.P. Upon being processed in the jail, however,

      Davis indicated that he hit her in the face with the palm of his hand.


[6]   On March 17, 2016, the State charged Davis with Counts 1 through 4 as set out

      above. Without the benefit of a plea agreement, Davis pled guilty as charged

      on July 13, 2016, and the trial court took the pleas under advisement. At the

      sentencing hearing on August 10, 2016, the trial court accepted Davis’s guilty

      plea as to each charge. Davis and the State agreed that Count 4 (strangulation)

      should be merged with Count 1 (aggravated battery) to alleviate double

      jeopardy concerns. Accordingly, the trial court entered judgments of conviction

      and sentences on only Counts 1, 2, and 3. The court sentenced Davis to fifteen


      Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 3 of 10
      years with all but six months executed on Count 1 and five years executed on

      both Counts 2 and 3. The sentences were ordered to be served concurrently.

      Davis now appeals.


                                          Discussion & Decision


                                         1. Abstract of Judgment


[7]   Davis argues that his abstract of judgment needs to be amended to clarify that

      he does not have a conviction for strangulation. Contrary to Davis’s assertion,

      we do not find that the record lacks clarity regarding Count 4.


[8]   Our Supreme Court has made clear that “a merged offense for which a

      defendant is found guilty, but on which there is neither a judgment nor a

      sentence, is ‘unproblematic’ as far as double jeopardy is concerned.” Green v.

      State, 856 N.E.2d 703, 704 (Ind. 2006). In other words, “a defendant’s

      constitutional rights are violated when a court enters judgment twice for the

      same offense, but not when a defendant is simply found guilty of a particular

      count.” Id.


[9]   In this case, the record indicates that a formal judgment of conviction was

      entered for Counts 1, 2, and 3. With respect to Count 4, the judgment of

      conviction and sentencing order expressly states that the trial court merged

      Count 4 into Count 1 and did not enter judgment of conviction on Count 4.

      Similarly, the abstract of judgment demonstrates that Count 4 was merged,

      rather than reduced to judgment, and that Davis was never sentenced for that


      Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 4 of 10
       count. See id. (finding no reason to order vacation of a guilty plea to a lesser-

       included offense where judgment was only entered on the greater offense).

       Accordingly, we find no error in this regard.


                                               Double Jeopardy


[10]   Next, Davis argues that his three convictions following one domestic dispute

       violate the double jeopardy clause of the Indiana Constitution, article 1, § 14.

       He contends all but one of the convictions must be vacated.


[11]   In Richardson v. State, our Supreme Court established a two-part test for

       analyzing double jeopardy claims under the Indiana Constitution and

       concluded that two or more offenses are the “same offense” for double jeopardy

       purposes “if, with respect to either the statutory elements of the challenged

       crimes or the actual evidence used to convict, the essential elements of one

       challenged offense also establish the essential elements of another challenged

       offense.” 717 N.E.2d 32, 49 (Ind. 1999). To find a double jeopardy violation

       under the actual evidence test, upon which Davis relies, we must conclude there

       is a reasonable possibility that the evidentiary facts used by the factfinder to

       establish the essential elements of one offense may also have been used to

       establish the essential elements of a second challenged offense. Kunberger v.

       State, 46 N.E.3d 966, 970 (Ind. Ct. App. 2015). Our Supreme Court has

       indicated that a “reasonable possibility” requires “substantially more than a

       logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008).




       Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 5 of 10
[12]   Davis pled guilty to aggravated battery, criminal confinement, and battery

       without the benefit of a plea agreement. When a defendant pleads guilty, he

       generally waives his right to challenge his convictions on double jeopardy

       grounds. See Kunberger, 971 N.E.3d at 971 (citing Mapp v. State, 770 N.E.2d

       332, 334 (Ind. 2002)). This court has repeatedly recognized, however, that

       when a defendant pleads guilty without the benefit of a plea agreement there is

       no waiver. See id.; Wharton v. State, 42 N.E.3d 539, 540-41 (Ind. Ct. App.

       2015); Graham v. State, 903 N.E.2d 538, 541 (Ind. Ct. App. 2009); McElroy v.

       State, 864 N.E.2d 392, 396 (Ind. Ct. App. 2007), trans. denied. Accordingly, we

       turn to the merits of Davis’s double jeopardy claim.


[13]   Davis complains that the State failed to parse the evidence in the charging

       information and the probable cause affidavit to establish separate and distinct

       offenses. Additionally, he argues that the injuries J.P. sustained while being

       choked could have been used to establish the injuries alleged in each count.

       Davis summarizes his double jeopardy argument in his reply brief as follows:

               The problem is that this Court cannot tell from the Record which
               actions support [Davis’s] various crimes. The information lacks
               specificity concerning which act relates to which crime.
               Furthermore, the crimes all involve injuries but the specific injury
               is not related to the charged crime, leaving a real possibility that
               the same facts support multiple convictions.


       Appellant’s Reply Brief at 5.




       Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 6 of 10
[14]   Of course the facts are not laid out with the specificity that they would be had

       the matter proceeded to trial. Davis pled guilty and did not raise these double

       jeopardy claims below (even though double jeopardy was addressed with

       respect to Count 4). The record is, therefore, understandably slim. Regardless,

       a review of the probable cause affidavit, which the trial court took judicial

       notice of at the plea hearing, reveals that the offenses could have been

       established by separate and distinct facts if the case had gone to trial.

       Specifically, Davis committed aggravated battery when he slammed J.P. to the

       ground and strangled her to the point of unconsciousness and loss of bladder

       control. He then criminally confined her by dragging her by the feet across an

       alley and up a hill. Once J.P. came to and rose to her feet, Davis committed

       battery by head butting her. J.P. sustained injuries during each phase of the

       attack, including injuries to her neck, head, face, hands, and wrist.


[15]   “To find a double jeopardy violation, we must conclude there is a ‘reasonable

       possibility’ the facts used to establish the essential elements of one offense may

       also have been used to establish the essential elements of a second offense.”

       Kunberger, 971 N.E.3d at 971. Because this requires substantially more than a

       logical possibility, we cannot conclude Davis’s convictions violate double

       jeopardy. See id.


                                                    Sentence


[16]   Finally, Davis contends that his fifteen-year sentence, with six months

       suspended, is inappropriate in light of his character and the nature of the


       Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 7 of 10
       offenses. Pursuant to Ind. Appellate Rule 7, we may revise a sentence “if, after

       due consideration of the trial court’s decision, the Court finds that the sentence

       is inappropriate in light of the nature of the offense and the character of the

       offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

       Our review in this regard is “very deferential” to the trial court. See Conley v.

       State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[17]   “The principal role of such review is to attempt to leaven the outliers.”

       Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is not our goal in this

       endeavor to achieve the perceived “correct” sentence in each case. Knapp v.

       State, 9 N.E.3d 1274, 1292 (Ind. 2014). Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Davis bears

       the burden of persuading us that his sentence is inappropriate. See Conley, 972

       N.E.2d at 876.


[18]   Davis was convicted of one Level 3 felony and two Level 5 felonies. The

       sentencing range for a Level 3 felony is between three and sixteen years, with

       an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). The range for a

       Level 5 felony is between one and six years, with an advisory sentence of three

       Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 8 of 10
       years. I.C. § 35-50-2-6(b). Thus, applying the consecutive sentencing statute,

       Davis faced a maximum aggregate sentence of twenty-three years in prison.1

       He received a fifteen-year sentence, with six months of the sentence suspended

       to probation.


[19]   With respect to the nature of the offense, Davis argues that the State failed to

       present medical documentation to demonstrate that J.P.’s injuries were far

       worse than those normally sustained by a victim of an aggravated battery. Such

       documentary evidence is not required. The extreme brutality of the protracted

       attack in this case is evident and clearly supportive of an aggravated sentence.


[20]   Turning to his character, Davis asserts that his criminal history is minimal (two

       misdemeanors) and largely influenced by his untreated addiction to drugs.

       Neither his long history of drug abuse nor his drug-related criminal behavior is

       evidence of Davis’s good character. For well over a decade, Davis has used

       illegal substances, including heroin, cocaine, and methamphetamine. Despite

       convictions related to his drug abuse, he has continued to use and has not

       sought treatment. In fact, he shot up with methamphetamine on the morning

       of the instant attack. The record indicates that Davis has been granted leniency




       1
        Under I.C. § 35-50-1-2, the consecutive sentencing statute, aggravated battery constitutes a crime of
       violence but battery as a Level 5 felony does not. Accordingly, the total of consecutive terms of
       imprisonment for Counts 2 and 3 could not exceed seven years. I.C. § 35-50-1-2 (d)(2). In turn, this seven
       years could be run consecutive to the sixteen-year maximum for Count 1, for a total of twenty-three years.

       Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016         Page 9 of 10
       in the past to no avail. He violated probation in 2010 and 2011 and was on

       pretrial release in another case at the time he attacked J.P.


[21]   Neither the nature of the offenses nor Davis’s character warrants a reduction of

       his sentence. Accordingly, his aggregate, partially-suspended fifteen-year

       sentence is not inappropriate, and we reject Davis’s request to revise his

       sentence to only three years.


[22]   Judgment affirmed.


[23]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 16A04-1609-CR-2053 | December 30, 2016   Page 10 of 10
