MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Mar 15 2016, 10:22 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
Timothy P. Broden                                       Gregory F. Zoeller
Lafayette, Indiana                                      Attorney General of Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Miguel Garcia,                                          March 15, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1507-CR-944
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D02-1411-F3-2



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016         Page 1 of 9
                                       Statement of the Case
[1]   Miguel Garcia appeals the trial court’s sentencing order. He raises two issues,

      namely:

               1. Whether the trial court abused its discretion in imposing
                  consecutive sentences.


               2. Whether the advisory sentence imposed for Count II is
                  inappropriate.


      Because we find the first issue dispositive, we do not address the second
      issue.


[2]   We reverse and remand with instructions.

                                 Facts and Procedural History
[3]   On November 12, 2014, the State filed an information charging Garcia with ten

      counts relating to the armed robberies of a Speedway gas station and a Village

      Pantry convenience store in Lafayette on November 1 and November 5, 2014,

      respectively. On November 1, Garcia and Jacob Lumbley took cigarettes,

      money, and the store clerk’s cellular telephone from the Speedway gas station

      while Lumbly was armed with a handgun. On November 5, Garcia, Lumbley,

      and Tiffany Mounts took money and merchandise from the Village Pantry store

      while Lumbley was armed with a shotgun and Garcia was armed with a knife.

      During the course of the Village Pantry robbery, the robbers ordered the store

      clerks to lay on the floor until the robbers left.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016   Page 2 of 9
[4]   On May 19, 2015, Garcia and the State entered into a plea agreement under

      which Garcia pleaded guilty to the following charges: Count II, robbery as a

      Level 3 felony, relating to the November 1 offense; Count VI, robbery as a

      Level 3 felony, relating to the November 5 offense; and Count VII, criminal

      confinement as a Level 3 felony, relating to the November 5 offense. In

      exchange, the State dismissed the remaining counts.


[5]   Following a sentencing hearing on June 19, the trial court found the following

      aggravating factors: “the seriousness of the offense; offenses committed within

      five months of entering community; his criminal history; there were 3 victims;

      character of Defendant; and he has been disciplined while incarcerated.”

      Appellant’s App. at 13. The court also found the following mitigating factors:

              the Defendant pled guilty; he participated in rehabilitative
              programs while in custody at the County jail; he has shown
              remorse for his victims; he has drug and alcohol problems and
              was under the influence of Spice at the time of the commission of
              the offenses; he has had a somewhat good employment history;
              and his difficult childhood.


      Id. The trial court then found that “the aggravating factors and the mitigating

      factors balance.” Id.


[6]   The trial court imposed the nine year advisory sentence upon Garcia for both

      the Count II and Count VI robbery convictions, with each sentence having

      eight years executed and one year suspended on supervised probation. The

      court reduced the Count VII criminal confinement conviction to a Level 6

      felony and sentenced Garcia to two and one-half years executed on that count.
      Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016   Page 3 of 9
      The trial court ordered that the sentences on Counts VI and VII be served

      concurrent with one another, but consecutive to the sentence on Count II, for

      an aggregate sentence of eighteen years, with sixteen years executed in the

      Department of Correction and two years suspended to probation. This appeal

      ensued.


                                        Discussion and Decision
[7]   Garcia argues that the trial court abused its discretion in imposing consecutive

      sentences. We review a trial court’s decision to impose consecutive sentences

      for an abuse of discretion. See, e.g., Quiroz v. State, 885 N.E.2d 740, 741 (Ind.

      Ct. App. 2008), trans. denied. 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation

      omitted), trans. denied.


[8]   Sentencing determinations often involve a two-step process: first, the trial court

      may “consider aggravators and mitigators in determining the sentence for each

      underlying offense,”1 and then the trial court may “independently consider

      aggravators and mitigators in determining whether to impose concurrent or



      1
         We note that, under the advisory sentencing scheme that replaced the presumptive sentencing scheme in
      2005, the trial court “no longer has an obligation to weigh aggravating and mitigating factors against each
      other when imposing a sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). However, neither is
      the trial court prohibited from identifying facts in aggravation or mitigation. Id. And, if the trial court does
      find the existence of such factors, “then the trial court is required to give ‘a statement of the court’s reasons
      for selecting the sentence that it imposes.’” Id. (quoting Ind. Code § 35-38-1-3).

      Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016                    Page 4 of 9
      consecutive sentences[,]” pursuant to Indiana Code Section 35-50-1-2 (2015).

      Frentz v. State, 875 N.E.2d 453, 472 (Ind. Ct. App. 2008), trans. denied. In order

      to impose consecutive sentences, the trial court must find at least one

      aggravating circumstance. Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2002).

      But, when a “trial court finds [the aggravating and mitigating] circumstances to

      be in balance, ‘there is no basis upon which to impose consecutive sentences.’”

      Wentz v. State, 766 N.E.2d 351, 359 (Ind. 2002) (quoting Marcum, 725 N.E.2d at

      864). Thus, a trial court may find that the aggravating and mitigating factors

      balance for purposes of the length of a sentence and then find an additional,

      free-standing aggravator justifying the imposition of consecutive sentences, e.g.,

      Lopez v. State, 869 N.E.2d 1254, 1258 (Ind. Ct. App. 2007), trans. denied, or find

      that one of the same aggravators used in determining the length of the sentence

      justifies imposing consecutive sentences, Frentz, 875 N.E.2d at 472.


[9]   Moreover, “our supreme court has ‘emphasized that[,] before a trial court can

      impose a consecutive sentence, it must articulate, explain, and evaluate the

      aggravating circumstances that support the sentence.’” Lewis v. State, 31 N.E.2d

      539, 543 (Ind. Ct. App. 2015) (quoting Monroe v. State, 886 N.E.2d 578, 580

      (Ind. 2008)); see also Gross, 22 N.E.3d at 869. Thus, a trial court may abuse its

      discretion when it fails to state reasonably detailed reasons for imposing a

      particular sentence. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007).

      “Under those circumstances, remand for resentencing may be appropriate if we

      cannot say with confidence that the trial court would have imposed the same




      Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016   Page 5 of 9
       sentence had it properly considered reasons that enjoy support in the record.”

       Id. at 491.


[10]   Here, the trial court explicitly found that the mitigating and aggravating factors

       balanced, and it imposed the advisory sentences. But, unlike in Lopez and

       Frentz, the trial court did not proceed to the second step of the sentencing

       determination, namely, identifying the aggravating factor(s) to justify the

       imposition of consecutive sentences. Lopez, 869 N.E.2d at 1258; Frentz, 875

       N.E.2d at 472. Rather the trial court simply imposed consecutive sentences

       without stating any reason therefor. Such a statement is required. Gross, 22

       N.E.3d at 869. The trial court abused its discretion in imposing consecutive

       sentences without stating that the sentences were justified by one or more

       aggravators. Id.; Marcum, 725 N.E.2d at 864.


[11]   Accordingly, Garcia contends that a remand for the imposition of concurrent

       sentences is necessary, citing Feeney v. State, 874 N.E.2d 382, 384-85 (Ind. Ct.

       App. 2007). Brief of Appellant at 5. In Feeney we noted that, “Indiana’s

       appellate courts have consistently held that when the trial court finds the

       aggravating and mitigating circumstances to be in balance, ‘there is no basis on

       which to impose consecutive terms.’” Id. at 384 (citing Wentz v. State, 766

       N.E.2d 351, 359 (Ind. 2002)). And we said that in such cases, “Ordinarily,

       such an order would require remand for imposition of concurrent sentences.”

       Id. at 384-85. The State counters in a footnote, without citation to authority,

       that “[e]ven if the trial court erred by failing to make findings relevant to



       Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016   Page 6 of 9
       consecutive sentences, the remedy would be remand for resentencing, not the

       imposition of concurrent sentences.” Appellee’s Br. at 10 n.1.


[12]   In Windhorst v. State, 868 N.E.2d 504 (Ind. 2007), our supreme court noted that


               we have long held that where the trial court erred in sentencing a
               defendant, there are several options for the appellate court.
               “Without a trial court sentencing order that meets the
               requirements of the law,” we have the option to remand to the
               trial court for a clarification or new sentencing determination.


       Id. at 507 (quoting Brown v. State, 783 N.E.2d 1121, 1129 (Ind. 2003)). Thus,

       we may reverse and remand with instructions for the trial court to impose

       concurrent sentences or with instructions for the trial court to enter a new

       sentencing determination. Or we may exercise our constitutional authority

       under Appellate Rule 7(B) to review and revise the sentence. Id. Here, we

       conclude that, rather than enter a remand order for imposition of concurrent

       sentences, we should remand with instructions for the trial court to reconsider

       its order of consecutive sentences of eighteen years for the robbery convictions.

       On remand the trial court may either enter concurrent sentences for the robbery

       convictions or impose the same consecutive sentences, if the court supports its

       sentence with appropriate findings. See White v. State, 847 N.E.2d 1043, 1047

       (Ind. Ct. App. 2006).


[13]   Having reversed and remanded for resentencing, there is no need for us to

       address Garcia’s argument under Appellate Rule 7(B) that his sentence is

       inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016   Page 7 of 9
[14]   Reversed and remanded with instructions.


       May, J., concurs.

       Riley, J., concurs and dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016   Page 8 of 9
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Miguel Garcia,                                          Court of Appeals Case No.
                                                               79A02-1507-CR-944
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge concurring in part and dissenting in part


[15]   While I concur with the majority’s decision to reverse the trial court’s

       sentencing order, I would remand with instruction to impose concurrent

       sentences.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1507-CR-944| March 15, 2016   Page 9 of 9
