MEMORANDUM DECISION
                                                              Mar 30 2015, 9:03 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Gregory L. Fumarolo                                      Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Darrell Dewayne Carter,                                 March 30, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1403-CR-108
        v.                                              Appeal from the
                                                        Allen Superior Court
State of Indiana,                                       The Honorable Frances C. Gull,
                                                        Judge
Appellee-Plaintiff.
                                                        Cause No. 02D04-1305-FA-19




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 1 of 24
[1]   Following a jury trial, Darrell Dewayne Carter was convicted of Class A felony

      burglary,1 Class C felony disarming a law enforcement officer,2 and Class A

      misdemeanor resisting law enforcement.3 After the jury reconvened, Carter was

      found to be a habitual offender.4 The trial court sentenced Carter to an

      aggregate sentence of eighty-nine years executed with the Indiana Department

      of Correction. Carter appeals his convictions and sentence, raising the

      following issues:

                 I. Whether the State presented sufficient evidence to support Carter’s
                 convictions for burglary and disarming a law enforcement officer;
                 II. Whether the trial court erred in refusing Carter’s request to give a
                 lesser-included-offense jury instruction for burglary as a Class C
                 felony;
                 III. Whether the trial court abused its discretion by allowing the State
                 to proceed with a habitual offender enhancement, which Carter claims
                 was belatedly filed; and
                 IV. Whether his eighty-nine year sentence is inappropriate in light of
                 the nature of the offense and the character of the offender.
[2]   We affirm in part, reverse in part, and remand with instructions.




      1
          See Ind. Code § 35-43-2-1(2).
      2
          See Ind. Code § 35-44.1-3-2.
      3
          See Ind. Code § 35-44.1-3-1.
      4
       See Ind. Code § 35-50-2-8. We note that, effective July 1, 2014, these statutes were amended; however,
      because Carter committed the offenses in 2013, we apply the statutes in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015            Page 2 of 24
                                    Facts and Procedural History
[3]   On May 3, 2013, Captain William Corn, with the Fort Wayne Police

      Department (“FWPD”), responded to a burglar alarm at the Botanical Garden

      Conservatory (“Conservatory”) in Fort Wayne, Indiana. FWPD Detective

      Brent Roddy also responded to the alarm. Once at the Conservatory, Captain

      Corn, who was in uniform, and Detective Roddy, who was in plain clothes

      with a badge on his belt, checked the outside of the building, but found no signs

      of forced entry. Robert Anspach, a Conservatory employee, arrived at the

      scene and escorted the officers inside the building to check for an intruder.

      Anspach told the officers that no one was supposed to be in the building. Upon

      entering the Magnolia Room, the men heard a metallic banging sound, which

      Anspach said was not normal. Anspach and Captain Corn continued through

      the Conservatory, and Detective Roddy maintained his watch in the Magnolia

      Room, which was a common exit for the building.


[4]   Soon thereafter, Detective Roddy heard someone coming, and when Carter

      entered the room, Detective Roddy had his firearm in a “low ready” position.

      Tr. at 191.5 Carter did not have permission to be inside the Conservatory.

      When Detective Roddy saw that it was not Captain Corn, he raised his service

      firearm to a “high ready” position and “[g]ave [Carter] very loud verbal




      5
       The record before us contains volumes of three separate proceedings. We will cite to the trial transcript as
      “Tr.,” the habitual offender hearing transcript as “Supp. Tr.,” and the sentencing hearing transcript as “Sent.
      Tr.”

      Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015                Page 3 of 24
      commands, stop, police, get on the ground.” Id. at 192. The men were about

      twenty to thirty feet away from each other. Id. at 218. Carter, moving toward

      Detective Roddy, “closed the distance faster than [Detective Roddy] could

      react, [Carter] then latched on top of [Detective Roddy’s] service weapon.” Id.

      at 192. In the struggle, the magazine was released from Detective Roddy’s gun

      and fell to the floor. Detective Roddy continued to give Carter “verbal

      commands to get away from me, let go of my gun, get on the ground.” Id. at

      193.


[5]   Captain Corn, upon hearing Detective Roddy shout “Police! Get on the

      ground. Get on the ground,” ran back to the Magnolia Room to help. Id. at

      119-20, 193. The Magnolia Room was well lit, and Captain Corn could see

      Carter struggling with Detective Roddy. He could also see Detective Roddy’s

      gun magazine on the floor. Detective Roddy had a grip on his pistol, and

      Carter, who was holding the barrel as it pointed in his direction, still had both

      of his hands on Detective Roddy’s gun. Id. at 120.


[6]   Captain Corn “moved in and gave a front kick to [] Carter. And that was

      enough that [Carter] disengaged and backed off a little bit.” Id. at 121. Captain

      Corn “tried to direct [Carter] to the ground, . . . [but Carter] just stood there

      looking about.” Id. At some point, Captain Corn holstered his gun, “moved

      in,” grabbed Carter by his lapels, “[t]ried to pull him down, and put some knee

      strikes on him.” Id. Carter, who was eighty to one hundred pounds heavier

      than Captain Corn, did not budge.” Id. at 121-22. Captain Corn could not



      Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 4 of 24
      maintain his grip, and Carter “just turned” around and “went through the

      door.” Id. at 121.


[7]   Captain Corn and Detective Roddy pursued Carter outside the Conservatory,

      but temporarily lost sight of him when Carter jumped over a fence and

      attempted to hide in some underbrush. As Captain Corn was getting ready to

      go over the fence, he noticed that “the end of [his] left hand, his ring finger[,]

      was just dangling.” Id. at 122. Upon being discovered in the underbrush,

      Carter climbed onto the roof of a covered walkway next to the Conservatory

      and then jumped nearly forty-five feet down into a drainage ditch. Carter was

      apprehended by other officers who had responded to the scene. Captain Corn

      was transported to a nearby hospital where he learned that the tendon had

      detached at the last joint of his finger, causing a condition called “[h]ammer

      finger.” Id. at 125. Detective Roddy, who had remained at the scene, was able

      to identify Carter as the person who had broken into the Conservatory. Inside

      the Conservatory, officers found several damaged door frames, tools that were

      “apparently used in the break in,” and a safe with a screwdriver sticking out of

      it. Tr. at 157-61; State’s Exs. 7-19. Later, officers found pry marks on a door

      leading into the Conservatory from a courtyard. Tr. at 158; State’s Ex. 6.


[8]   On May 9, 2013, the State charged Carter with: Count I, Class A felony

      burglary resulting in bodily injury; Count II, Class C felony disarming a law

      enforcement officer; Count III, Class D felony resisting law enforcement; and

      Count IV, Class A misdemeanor resisting law enforcement. On January 21,

      2014, the State filed a notice of intent to add a habitual offender enhancement

      Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 5 of 24
       to the charging information. Also on that date, the State filed a motion to

       dismiss Count III. Following a hearing, the trial court granted the State’s

       motion to dismiss Count III and allowed the State to add a habitual offender

       enhancement. Supp. Tr. at 11.6 Carter did not request a continuance; in fact the

       trial judge specifically asked him if it was his “decision to proceed to trial [the

       next day].” Id. at 13. To which Carter responded, “Yes.” Id.


[9]    A two-day trial commenced on January 29, 2014. During the second day of

       trial, and out of the presence of the jury, counsel discussed the final jury

       instructions. Specifically, Carter requested that the trial court give the jury an

       instruction on Class C felony burglary as a lesser-included offense of Count I.

       The trial court denied the request. Final instructions were read, and after

       deliberations, the jury returned verdicts of guilty on the remaining three counts.

       The jury was reconvened on the habitual offender phase and found Carter to be

       a habitual offender.


[10]   Following a sentencing hearing, the trial court sentenced Carter to fifty years

       for the burglary, enhanced by a term of thirty years for being a habitual

       offender, eight years for disarming a law enforcement officer, and one year for

       resisting law enforcement. The trial court ordered all sentences to run

       consecutively to each other, for an aggregate sentence of eighty-nine years




       6
         The Supplemental Transcript contained the testimony from a hearing on January 28, 2014. The State’s
       request to file a habitual offender enhancement against Carter was the only issue before the trial court on that
       day.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015               Page 6 of 24
       executed with the Department of Correction. Carter now appeals his

       convictions and sentence.


                                      Discussion and Decision

                                 I. Sufficiency of the Evidence
[11]   On appeal, Carter contends that there was insufficient evidence to support his

       convictions for Class A felony burglary resulting in bodily injury and Class C

       felony disarming a law enforcement officer. Upon a challenge to the sufficiency

       of evidence to support a conviction, we neither reweigh the evidence nor judge

       the credibility of the witnesses; instead, we respect the exclusive province of the

       trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d

       124, 126 (Ind. 2005); Toney v. State, 961 N.E.2d 57, 58 (Ind. Ct. App. 2012).

       We consider only the probative evidence supporting the verdict and reasonable

       inferences drawn therefrom, and we will affirm if that evidence and those

       inferences could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. Toney, 961 N.E.2d at 58.


[12]   Indiana Code section 35-43-2-1 provides, “[a] person who breaks and enters the

       building or structure of another person, with intent to commit a felony in it,

       commits burglary, a Class C felony.” Burglary is elevated to a Class A felony if

       it results in “bodily injury” or “serious bodily injury” to “any person other than

       the defendant.” Ind. Code § 35-43-2-1(2). Therefore, to convict Carter of Class

       A felony burglary, the State had to prove that he broke and entered the

       Conservatory, with intent to commit a felony therein, and that the burglary


       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 7 of 24
       resulted in bodily injury or serious bodily injury to one other than Carter.

       Indiana Code section 35-31.5-2-29 defines “bodily injury” as “any impairment

       of physical condition, including physical pain.”


[13]   Carter “concedes that, based upon the evidence presented, a reasonable trier of

       fact could have found [him] guilty of a Class C felony burglary.” Appellant’s Br.

       at 13. Instead, he contends that “it was unreasonable for the jury to find him

       guilty of Class A felony burglary because there was insufficient evidence that

       the burglary resulted in injury to Captain Corn’s finger.” Id. at 13-14. During

       trial, Captain Corn testified that he “grabbed [Carter] by his lapels,” and injured

       his finger “when [he] engaged in [sic] Mr. Carter.” Tr. at 121, 122. In

       describing the injury to his finger, Captain Corn further stated, “It has a slight

       dip to it, and always will. It doesn’t quite bend as far as the other, but it works

       for the most part. It’s pretty stiff every day.” Id. at 126.


[14]   Carter argues that Captain Corn’s claim that he was injured when he grabbed

       Carter’s lapels is not plausible because Carter “had no lapels for Corn to grab.”

       Appellant’s Br. at 14. Additionally, he asserts that, at trial, he vehemently denied

       ever being grabbed by Captain Corn and that his “rendition is far more

       plausible.” Id. Captain Corn injured his finger on the day in question. It was

       for the factfinder to decide whether it believed Carter’s version that Captain

       Corn never grabbed him and, therefore, could not have injured his hand as a

       result of the burglary, or Captain Corn’s version that he hurt his hand when he

       tried to restrain Carter. We must decline Carter’s invitation to reweigh the

       evidence and judge witness credibility. Bass v. State, 947 N.E.2d 456, 461 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 8 of 24
       Ct. App. 2011), trans. denied. The State presented sufficient evidence from

       which a reasonable factfinder could have concluded that the burglary of the

       Conservatory resulted in Captain Corn’s injury.


[15]   To convict Carter of Class C felony disarming a law enforcement officer, the

       State had to prove that Carter knew that Detective Roddy was a law

       enforcement officer and that Carter knowingly or intentionally took or

       attempted to take Detective Roddy’s firearm without his consent and while

       Detective Roddy was engaged in his official duties. Ind. Code § 35-44.1-3-2(b).

       The evidence most favorable to the verdict was that Detective Roddy was

       engaged in his official duties when he responded to a burglar alarm and

       thereafter searched the Conservatory for an intruder. Detective Roddy was in

       plain clothes; however, testimony revealed that Detective Roddy wore his

       badge on his belt. Upon seeing Carter enter the Magnolia Room, Detective

       Roddy “[g]ave [Carter] very loud verbal commands, stop, police, get on the

       ground.” Tr. at 192. Captain Corn confirmed that Detective Roddy

       announced that he was a police officer and testified that, when he heard

       Detective Roddy shout “Police! Get on the ground. Get on the ground,”

       Captain Corn ran to the Magnolia Room to help. Id. at 119-20, 193. The

       Magnolia Room was well lit, and Captain Corn could see Carter struggling

       with Detective Roddy. He could also see Detective Roddy’s gun magazine on

       the floor. Detective Roddy had a grip on his pistol, and Carter, who was

       holding the barrel as it pointed in his direction, still had both of his hands on

       Detective Roddy’s gun. Id. at 120.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 9 of 24
[16]   Carter contends that there is insufficient evidence to convict him of Class C

       felony disarming a law enforcement officer because he did not know that

       Detective Roddy, who was wearing plain clothes, was a law enforcement

       officer. Carter maintains that he did not see Detective Roddy’s badge and had

       already grabbed the gun by the time Detective Roddy had verbally identified

       himself as an officer. Appellant’s Br. at 15. Further, Carter asserts that, because

       there was no evidence that he disarmed Detective Roddy, the only question is

       whether he attempted to do so. Id. Carter offers that, due to his physical size,

       any effort to disarm Detective Roddy would have resulted not in just an

       attempt, but, instead, in a completed act. Accordingly, Carter requests that we

       find that the evidence was insufficient to sustain Carter’s conviction for

       disarming a law enforcement officer.


[17]   Carter’s argument, equating his failure to disarm Detective Roddy with a lack

       of attempt, is not supported by the evidence. At trial, Captain Corn, Detective

       Roddy, and Carter admitted that Carter had his hands on Detective Roddy’s

       gun. Tr. at 120, 192, 245. Carter even admitted that he “had to hold onto the

       gun because [Detective Roddy was] telling him to let go of his gun,” and Carter

       was afraid Detective Roddy was going to shoot him. Id. at 247. There was

       sufficient evidence that Carter, regardless of the reasons, was attempting to take

       Detective Roddy’s gun. On appeal, Carter reiterates the argument he made at

       trial regarding his lack of knowledge that Detective Roddy was a law

       enforcement officer. During his testimony in his case-in-chief, Carter argued

       that he did not know Detective Roddy was an officer until after he had grabbed


       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 10 of 24
       the gun. Id. at 242. In fact, Carter maintained that it was not until after

       Captain Corn entered the Magnolia Room, and Carter saw his police uniform,

       that Carter realized, “man, this dude [Detective Roddy] is a cop.” Id. at 247.

       Carter’s argument on appeal is a request that we reweigh the evidence and

       judge witness credibility; again, we must decline Carter’s invitation. Bass, 947

       N.E.2d at 461. The State presented sufficient evidence from which a reasonable

       factfinder could have concluded that Carter knew that Detective Roddy was a

       law enforcement officer and that Carter knowingly or intentionally took or

       attempted to take Detective Roddy’s firearm without his consent while

       Detective Roddy was engaged in his official duties. See Ind. Code § 35-44.1-3-

       2(b).


                 II. Jury Instruction as to Lesser Included Offense
[18]   A conviction for Class A felony burglary requires the State to prove that a

       person broke and entered the building or structure of another with intent to

       commit a felony therein, and that the burglary resulted in bodily injury to one

       other than the defendant. Ind. Code §35-43-2-1(2). Carter contends that the

       trial court erred by denying his request that the jury receive an instruction on

       the lesser-included offense of Class C felony burglary, i.e., that he merely broke

       and entered a building or structure with intent to commit a felony therein.


[19]   To determine whether a trial court should have given a lesser-included

       instruction, we must apply the three-part test established by our Supreme Court

       in Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995). Coy v. State, 999 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 11 of 24
937, 944 (Ind. Ct. App. 2013). First, we must “compare the statute of the crime

charged with the statute of the lesser-included offense to determine if the lesser-

included offense is included in the crime charged.” Id. (citing Watts v. State, 885

N.E.2d 1228, 1231 (Ind. 2008) (citing Wright, 658 N.E.2d at 566)). “Second, if

the alleged lesser-included offense is not inherently included in the charged

crime, the Court must compare the statute defining the alleged lesser-included

offense with the charging information to determine if all elements of the alleged

lesser-included offense are covered by the allegations in the charging

instrument.” Id. at 943-44. “Third, if a trial court has determined that an

alleged lesser-included offense is either inherently or factually included in the

crime charged, it must look at the evidence presented in the case by both

parties.” Wright, 658 N.E.2d at 567. “If there is a serious evidentiary dispute

about the element or elements distinguishing the greater from the lesser offense

and if, in view of this dispute, a jury could conclude that the lesser offense was

committed but not the greater, then it is reversible error for a trial court not to

give an instruction, when requested, on the inherently or factually included

lesser offense.” Id. “If the evidence does not so support the giving of a

requested instruction on an inherently or factually included lesser offense, then

a trial court should not give the requested instruction.” Id. If a trial court

makes a factual finding regarding the existence or lack of a “serious evidentiary




Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 12 of 24
       dispute,” we review that decision for an abuse of discretion. 7 Champlain v. State,

       681 N.E.2d 696, 700 (Ind. 1997).


[20]   Here, at the close of trial and outside the presence of the jury, Carter’s attorney

       asked that she be permitted to tender a lesser-included instruction of burglary as

       a Class C felony, noting that the “only difference is the additional element of

       injury.” Tr. at 302. While conceding that “there’s no dispute . . . at all about

       the elements of the C felony,” she asserted, “I do believe that there is a serious

       evidentiary dispute . . . concerning the additional element of causing the

       injury.” Id. at 302, 303. The State argued that Captain Corn had a finger injury

       after he responded to the burglary, which had not existed prior to the burglary.

       Therefore, there was no serious evidentiary dispute about whether the burglary

       resulted in bodily injury to Captain Corn.


[21]   The trial court agreed with Carter that Class C felony burglary is an inherently

       lesser included offense of Class A felony burglary and, therefore, noted that the

       question was whether there was a serious evidentiary dispute that the burglary

       resulted in bodily injury. Setting out the evidence, the trial court said:

                Captain Corn testified that he injured his finger when he had his initial
                encounter with the Defendant, when I grabbed his lapels or shirt. The
                Defendant’s testimony that he was never grabbed or touched by
                Captain Corn is in conflict with that, but I don’t believe that it is a



       7
         “If the trial court makes no ruling as to whether a serious evidentiary dispute exists, Wright implicitly
       requires the reviewing court to make this determination de novo based on its own review of the evidence.”
       Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).



       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015             Page 13 of 24
               serious evidentiary dispute that the officer was injured during the
               course of the Burglary, . . . I don’t find that there is a serious
               evidentiary dispute as to the injury that the officer suffered from it . . . .
       Id. at 304-05. The trial court denied Carter’s motion to instruct as to the lesser

       included offense after specifically finding that there was no evidentiary dispute.


[22]   Both parties agree that part one and two of the three-part test are satisfied

       where, like here, burglary as a Class C felony is inherently a lesser-included

       offense of burglary resulting in bodily injury, a Class A felony. Appellant’s Br. at

       19; Appellee’s Br. at 17; see Green v. State, 523 N.E.2d 403, 404 (Ind. 1988)

       (burglary, as Class C felony “was necessarily included in” burglary resulting in

       bodily injury). The parties disagree, however, regarding part three, i.e.,

       whether there is a serious evidentiary dispute whether Captain Corn suffered

       bodily injury as a result of Carter’s burglary.


[23]   Captain Corn testified that he was chasing Carter out of the Conservatory, and

       was getting ready to go over a fence, when he put his hand up and saw the end

       of the ring finger on his left hand was just dangling. Tr. at 122. When asked

       how he injured his finger, Captain Corn testified, “When I engaged in [sic] Mr.

       Carter.” Id. Detective Roddy testified that, after Captain Corn came to his aid

       in the Magnolia Room, he could see Captain Corn holding Carter and trying to

       get him to the ground. Id. at 195. Detective Roddy testified that, after Carter

       was caught, Captain Corn was complaining about his hand and Detective

       Roddy could see that Captain Corn’s finger looked “very bad.” Id. at 204. The

       State introduced Exhibits 1 through 4, which showed the injury to Captain

       Corn’s finger.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 14 of 24
[24]   “In deference to trial courts’ proximity to the evidence, we review the decision

       whether to instruct the jury on lesser included offenses for an abuse of

       discretion if the court makes a finding as to the existence or lack of a ‘serious

       evidentiary dispute’ on the element in question.” McEwen v. State, 695 N.E.2d

       79, 84 (Ind. 1998). Here, Captain Corn said that the injury to his finger

       occurred when he grabbed Carter’s lapels. Carter denied that he was ever

       touched by Captain Corn. Although the trial court recognized this conflict in

       the testimony, it determined this conflict did not rise to the level of a serious

       evidentiary dispute regarding the question of whether burglary resulted in

       bodily injury to Captain Corn. Based on this record, we cannot say that the

       trial court abused its discretion in finding that there was no serious evidentiary

       dispute that the burglary resulted in bodily injury to Captain Corn.


                            III. Habitual Offender Enhancement
[25]   Carter argues that it was error for the trial court to grant the State’s belated

       amendment to add a habitual offender enhancement. Indiana Code section 35-

       34-1-5(e) sets forth the deadline by which the State must file an amendment to

       include a habitual offender enhancement; however, it also permits the State to

       file a habitual-offender charge at any time before the commencement of trial

       “upon a showing of good cause.” Ind. Code § 35-34-1-5(e). We begin by

       noting that Indiana Code section 35-34-1-5(e) was amended on July 1, 2013 to

       change the deadline for adding a habitual offender enhancement. Prior to the

       amendment, a request for a habitual offender enhancement had to be filed “not

       later than ten (10) days after the omnibus date.” After the amendment, a

       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 15 of 24
       request for a habitual offender enhancement had to be filed “within thirty (30)

       days of the trial date.” Here, during the hearing on the State’s notice of intent

       to file a habitual offender count, Carter maintained that the statute in effect

       prior to July 1, 2013 was applicable to this case. Supp. Tr. at 7. The State

       argued that the statute that took effect on July 1, 2013 applied. Because the

       State concedes that its filing was untimely under both versions, we need not

       address the question of which version applies. Id. at 9.


[26]   On January 21, 2014, the State belatedly filed a notice of intent to add a

       habitual offender enhancement to the charging information. The trial court

       initially set a hearing on the State’s notice of intent for January 24, 2014, but

       rescheduled the hearing to January 28, 2014 on its own motion. During the

       hearing, the State argued that the habitual offender enhancement had been part

       of plea negotiations from the very start. Id. at 3. The State explained that it had

       engaged in plea negotiations with Carter’s prior counsel and had given the

       defendant a window of time during which he could plead guilty, and the State

       would recommend a sentence cap of forty years. If Carter refused this plea

       deal, the State said it would file a habitual offender count that would increase

       his sentence exposure to around eighty years. Id. at 4. A rift in the relationship

       between Carter and his original counsel led to the appointment of new counsel,

       Michelle Kraus. Id. The State offered Kraus the same plea deal for Carter and

       extended the deadline for Carter’s response. Id. Kraus had difficulty obtaining

       access to her client and asked for additional time to discuss the plea with Carter.

       Just prior to trial, Carter determined that he was not interested in pleading


       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 16 of 24
       guilty, and the State filed its intention to file a habitual offender enhancement.

       Following the hearing, the trial court, presumably finding good cause for the

       belated filing, granted the State’s request to add a habitual offender

       enhancement to the Class A felony burglary count. Id. at 11. Carter did not

       request a continuance; in fact the trial judge specifically asked Carter if it was

       his “decision to proceed to trial [the next day],” and Carter responded, “Yes.”

       Id. at 13.


[27]   Carter argues that it was error for the trial court to grant the State’s belated

       amendment to add a habitual offender enhancement. Specifically, Carter

       observes, “There was no specific written finding by the trial court that the State

       had made a showing of good cause to permit the ultra-belated filing.”

       Appellant’s Br. at 24. “Further, there was no showing that Carter, himself,

       agreed to and/or waived the late filing.” Id. The State counters, “Carter

       waived any challenge [to] the belated filing of the habitual offender

       enhancement because he did not preserve the error by requesting a

       continuance.” Appellee’s Br. at 18. The State contends that, waiver

       notwithstanding, there was good cause for the belated filing where Carter knew

       that the “habitual offender enhancement was part of the plea negotiations from

       the beginning of Carter’s case,” and such filing was made only after Carter

       refused the State’s plea. Appellee’s Br. at 12. We agree with the State that Carter

       waived any challenge to the belated filing of the habitual offender enhancement

       when he did not request a continuance.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 17 of 24
[28]   In White v. State, 963 N.E.2d 511, 518 (Ind. 2012), our Supreme Court discussed

       key Indiana cases addressing late filings under Indiana Code section 35-34-1-

       5(e), recognizing that “[e]ach case presented a unique set of facts related to the

       tardy habitual-offender filing.” White, 963 N.E.2d at 515. Of particular

       relevance to the facts before this court are the cases of Kidd v. State, 738 N.E.2d

       1039 (Ind. 2000) and White, itself.


[29]   In Kidd, the State belatedly filed a habitual offender enhancement, forty-nine

       days after the omnibus date and twenty days before the scheduled trial date.

       738 N.E.2d at 1041. Kidd did not request a continuance. Id. On appeal, Kidd

       argued that the trial court erred in permitting the State to file an information

       charging him as a habitual offender because it was untimely filed and there was

       no showing of good cause. Id. Kidd also suggested that he was prejudiced

       because the delay caused him to be inadequately prepared for additional

       witnesses called during the habitual offender phase and that he should not have

       been forced to forfeit his right to a speedy trial in order to meet the State’s

       untimely filing. Id. at 1041-42. Id. Our Supreme Court found that Kidd had

       waived this issue for appellate review, reasoning:

               In the recent decision of Williams v. State, 735 N.E.2d 785 (Ind. 2000),
               this Court . . . reiterate[ed] the rule “that once a trial court permits a
               tardy habitual filing, an appellant must move for a continuance in
               order to preserve the propriety of the trial court’s order for appeal.” Id.
               at 789 (citing Daniel v. State, 526 N.E.2d 1157, 1162 (Ind. 1988);
               Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996)). There is no
               exception to this rule even where a defendant has asked for a speedy
               trial. Haymaker, 667 N.E.2d at 1114. If the defendant indeed needs
               additional preparation time, then he may seek a continuance of the

       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 18 of 24
               habitual offender phase of the proceedings without affecting his rights
               to a speedy trial on the main charge. Williams, 735 N.E.2d at 789.
       Kidd, 738 N.E.2d at 1042. Our Supreme Court did not address Kidd’s

       contention of lack of “good cause.”


[30]   In White, the State did not articulate any grounds for good cause in its written

       motion requesting permission to belatedly file the habitual-offender

       enhancement. 963 N.E.2d at 517. There was no hearing on the State’s motion,

       and the trial court never made an explicit finding of good cause when it granted

       the State’s motion. Id. At the initial hearing on the habitual-offender charge,

       the issue of good cause was not explored. Id. On the other hand, White never

       objected or responded to the State’s motion to file the habitual-offender charge.

       Id. White neither requested a continuance nor expressed any issue with the

       tardy filing at the initial hearing on the charge. Id. White also failed to raise

       the issue during trial.” Id. Accordingly, our Supreme Court determined that

       White had waived for appellate review the issue of the belated filing.


[31]   Like the defendants in Kidd and White, we find that, under the facts of this case,

       the issue of the belated filing has not been preserved for appellate review. As

       our Supreme Court clarified in White, “[Our Supreme] Court’s precedent has

       consistently held that a defendant must request a continuance after a trial court

       permits a tardy habitual-offender filing to preserve the issue for appeal.” This




       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 19 of 24
       rule, as stated in Kidd and White, “has no exceptions.” White, 963 N.E.2d at

       518; Kidd, 738 N.E.2d at 1042.8


                                                   IV. Sentence
[32]   We now turn to Carter’s argument that his eighty-nine-year executed sentence

       is inappropriate. Under Indiana Appellate Rule 7(B), “we may revise any

       sentence authorized by statute if we deem it to be inappropriate in light of the

       nature of the offense and the character of the offender.” Corbally v. State, 5

       N.E.3d 463, 471 (Ind. Ct. App. 2014). 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). It is the defendant’s burden on appeal to persuade the

       reviewing court that the sentence imposed by the trial court is inappropriate.

       Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[33]   Carter’s Class A felony burglary conviction subjected him to imprisonment for

       a fixed term of between twenty and fifty years. Ind. Code § 35-50-2-4. The

       habitual offender finding enhanced the sentence for his Class A felony by an

       additional thirty years. Ind. Code § 35-50-2-8(h). Carter’s Class C felony




       8
         Consistent with White and Kidd, we do not address the merits of whether the trial court found “good cause”
       for the belated filing. In White, 963 N.E.2d at 518, our Supreme Court commented:
       Importantly, the defendant in Kidd argued that there was no finding of good cause, but this Court did not
       reach that argument after finding waiver. We believe this conclusion comports with the general waiver
       principle that “[a] party may not sit idly by and permit the court to act in a claimed erroneous matter [sic]
       and then attempt to take advantage of the alleged error at a later time.” Hensley v. State, 251 Ind. 633, 639,
       244 N.E.2d 225, 228 (1969).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015               Page 20 of 24
       disarming a law enforcement officer conviction subjected him to imprisonment

       for a fixed term of between two and eight years. Ind. Code § 35-50-2-6(a).

       Finally, Carter’s Class A misdemeanor resisting law enforcement conviction

       subjected him to a fixed term of punishment of up to one year. Ind. Code § 35-

       50-3-2.


[34]   Here, the trial court’s sentence was entirely within the range allowed by statute.

       The trial court sentenced Carter to the maximum executed sentences for each of

       his convictions: fifty years for the burglary conviction enhanced by thirty years

       for the habitual offender finding; eight years for the disarming a law

       enforcement officer conviction; and one year for the resisting law enforcement

       conviction. The trial judge ordered that these sentences run consecutively to

       each other for an aggregate sentence of eighty-nine years. Carter, however,

       insists that the sentence is inappropriate in light of the nature of the offense and

       the character of the offender. Appellant’s Br. at 28. We agree.


[35]   “When considering the nature of the offense, the advisory sentence is the

       starting point to determine the appropriateness of a sentence.” Johnson v. State,

       986 N.E.2d 852, 856 (Ind. Ct. App. 2013) (citing Anglemyer v. State, 868 N.E.2d

       482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). Carter’s

       Class A felony burglary conviction carried an advisory sentence of thirty years.

       Ind. Code § 35-50-2-4. The habitual offender finding enhanced the sentence for

       his Class A felony by an additional thirty years. Ind. Code § 35-50-2-8(h).

       Carter’s Class C felony disarming a law enforcement officer conviction carried

       an advisory sentence of four years. Ind. Code § 35-50-2-6(a). Carter’s Class A

       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 21 of 24
       misdemeanor resisting law enforcement conviction carried an advisory sentence

       of up to one year. Ind. Code § 35-50-3-2. Because there was more than one

       victim, it was not inappropriate to run the offenses consecutively to each other.

       See Estes v. State, 827 N.E.2d 27, 29 (Ind. 2005) (Estes committed offenses

       against two victims, so at least one consecutive sentence was appropriate).

       These advisory sentences add up to an aggregate sentence of sixty-five years;

       this is the starting point to determine the appropriateness of Carter’s sentence.

       Johnson, 986 N.E.2d at 856.


[36]   Regarding the nature of the offense, Carter focuses on the burglary. Burglary is

       elevated from a Class C felony to a Class A felony if that burglary results in

       bodily injury to one other than the defendant. Ind. Code § 35-43-2-1. On the

       night in question, Carter was forty-six years old, homeless, and riding a

       borrowed bicycle. Earlier that same evening, Carter had entered the

       Conservatory and had taken some food and bottled water. Carter left the

       Conservatory and rode to Lewis and Hannah Streets to “hang out” and eat

       until it got dark enough so he could return and sleep inside the Conservatory

       because he did not want to sleep “under the bridge.” Tr. at 238. The

       Conservatory was a non-residential building. When Carter entered the

       Conservatory for the second time, it was 9:00 p.m., he was unarmed and

       wearing flip flops. Id. at 249. Upon being discovered in the Conservatory,

       Carter attempted to take Detective Roddy’s service pistol and wrestled with

       Captain Corn while the officers tried to arrest him. Carter was able to get away

       and fled outside. At the time of his arrest, Officer Jon Bonar of the FWPD


       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 22 of 24
       noted that Carter “had no shoes on.” Id. at 147. Furthermore, while we

       recognize that Captain Corn injured his finger during his encounter with Carter,

       none of the testimony suggested that Carter inflicted this injury intentionally.

       In fact, Captain Corn, himself, testified that he grabbed Carter by his lapel and

       tried to pull him down, but Carter did not budge. Id. at 121. When Captain

       Corn could not hold on, Carter just turned and “went through a door.” Id.9

       This is the contact that resulted in the injury to Captain Corn’s finger.


[37]   As to Carter’s character, he acknowledges that he has an extensive criminal

       history, yet he emphasizes that none of his four juvenile adjudications involved

       violence, and of the remaining twenty-one misdemeanor convictions and ten

       felony convictions, three convictions were for misdemeanor battery, one was

       for felony sexual battery, and the remaining convictions could “be fairly

       categorized as property, driving, and substance offenses.” Appellant’s Br. at 27.

       Carter’s characterization of his past does not fully capture the extensive nature

       of his criminal history. Carter has been committing criminal offenses since

       1993. Included among the offenses are convictions for Class B felony burglary,

       Class C felony burglary, Class C felony forgery, Class D felony sexual battery,




       9
        During the sentencing hearing, the State offered the testimony of Detective Roddy who testified that
       Carter’s act of disarming him had resulted in Detective Roddy being diagnosed with “post-traumatic stress
       disorder.” Sent. Tr. at 7. On appeal, however, neither party cites to Detective Roddy’s testimony in its
       discussion of the appropriateness of Carter’s sentence.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015          Page 23 of 24
       Class D felony theft, and numerous counts of receiving stolen property, each as

       a Class D felony. Appellant’s App. at 112-17.


[38]   That being said, in light of the fact that Carter’s prior convictions consisted

       almost exclusively of Class C and Class D felonies and that his sentence will

       include the imposition of a thirty-year habitual offender enhancement, we find

       the nature of the instant offenses and Carter’s character do not warrant a

       maximum sentence. Here, the eighty-nine-year sentence was inappropriate.

       Therefore, we revise Carter’s sentence to the advisory sentence, consisting of

       thirty years for the Class A felony burglary conviction, enhanced by thirty years

       for being a habitual offender; four years for the Class C felony disarming a law

       enforcement officer conviction; and one year for the Class A misdemeanor

       resisting law enforcement conviction. We order these sentences to be served

       consecutively to one another, for an aggregate executed sentence of sixty-five

       years. We remand this case to the trial court with instructions to enter a

       sentence of sixty-five years executed. In all other respects, we affirm the

       decision of the trial court.


[39]   Affirmed in part, reversed in part, and remanded with instructions.


       Friedlander, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015   Page 24 of 24
