      MEMORANDUM DECISION                                                   Mar 31 2015, 9:21 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.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Brandon Scroggin                                         Gregory F. Zoeller
      Bunker Hill, Indiana                                     Attorney General of Indiana

                                                               George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Brandon Scroggin,                                        March 31, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               64A03-1410-CR-352
              v.                                               Appeal from the Porter Superior
                                                               Court
                                                               The Honorable William E. Alexa,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 64D02-1205-FC-4572




      Bradford, Judge.



                                            Case Summary
[1]   During the late evening hours of March 10, 2012 and early morning hours of

      March 11, 2012, Appellant-Defendant Brandon Scroggin took the vehicle of a

      Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015         Page 1 of 26
      man whom he had met in a Lake County bar and drove it to Porter County,

      where he committed various criminal acts against his ex-girlfriend, V.M., and

      her family. On May 4, 2012, Appellee-Plaintiff the State of Indiana (the

      “State”) charged Scroggin with Class D felony arson, Class D felony

      intimidation, and Class A misdemeanor criminal mischief. On June 29, 2012,

      the State filed an additional charge of Class C felony receiving stolen auto parts.

      The State also subsequently alleged that Scroggin was a habitual offender. The

      trial court held a trifurcated jury trial on August 6 through 9, 2012, after which

      the jury found Scroggin guilty as charged and determined that he was a habitual

      offender. On January 4, 2013, the trial court sentenced Scroggin to an

      aggregate term of nineteen and one-half years imprisonment.


[2]   In this belated appeal, Scroggin raises numerous contentions which we restate

      as whether: (1) his right to a speedy trial was violated, (2) he received ineffective

      assistance of trial counsel, (3) the evidence is sufficient to sustain his

      convictions, and (4) the trial court abused its discretion in sentencing him.

      Because we conclude that the trial court abused its discretion in imposing a

      portion of Scroggin’s aggregate nineteen-and-one-half-year sentence, we affirm

      in part, reverse in part, and remand to the trial court with instructions.



                            Facts and Procedural History
[3]   In January of 2012, V.M. lived in Portage with her six-year-old son. Near the

      end of January, V.M. met Scroggin. Although V.M. did not initially want to

      engage in a sexual relationship with Scroggin, “it happened anyways,” trial tr.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 2 of 26
      p. 277, and she “got sucked into” the relationship. Trial Tr. p. 278. Scroggin

      soon “moved himself” into V.M.’s home. Trial Tr. p. 278. Twice during

      February of 2012, V.M. tried to convince Scroggin to move out of her

      residence, but each time Scroggin’s uncle arrived to help him move out,

      Scroggin refused to leave. Scroggin was controlling of V.M. and prevented her

      from speaking with her friends over the telephone unless she put the telephone

      on “speaker.” Trial Tr. p. 279.


[4]   On March 10, 2012, two of V.M.’s friends decided to intervene on V.M.’s

      behalf. When one of these friends and V.M.’s mother came to V.M.’s

      residence, they noticed marks on V.M.’s body which had been inflicted upon

      V.M. by Scroggin. V.M.’s friend confronted Scroggin and V.M. told her

      mother that she wanted out of the situation. Scroggin collected his belongings

      and was cooperative with V.M.’s mother when she, taking V.M. with them,

      drove Scroggin to his uncle’s home in Lake County. V.M. spent the rest of the

      day and evening with her friends at one of their homes. During the evening

      V.M. received numerous telephone calls from Scroggin.


[5]   Later that night, Scroggin, who did not have his own vehicle, arrived at a bar in

      Lake County that was located a few blocks from his uncle’s home. Inside the

      bar, Scroggin met an elderly gentlemen named Paul Rouhselange. Scroggin

      and Rouhselange used Rouhselange’s white Ford minivan to drive to two other

      bars located nearby. Rouhselange allowed Scroggin to drive the minivan on at

      least one of those trips. While they were at one of the bars, Scroggin asked

      Rouhselange if he could use Rouhselange’s cellular phone to “call his girlfriend

      Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 3 of 26
      or something.” Trial Tr. p. 260. Rouhselange agreed, and, after Scroggin had

      been gone for approximately fifteen to twenty minutes, Rouhselange looked

      outside the bar and noticed that his van and Scroggin were gone. Rouhselange

      had not given Scroggin permission to take the minivan.


[6]   Scroggin used Rouhselange’s cellular phone to call or text V.M. dozens of

      times. Some of Scroggin’s voice messages were later recovered from V.M.’s

      cellular phone and were admitted into evidence at trial. In one of these

      messages, Scroggin screamed at V.M. that “[i]f you’re at your mother’s house,

      you’ll hear this.” Trial Tr. p. 295. Scroggin subsequently called V.M. and told

      her that he was “in a stolen vehicle, I got money in my pocket, and I don’t give

      … a f[***] about anything right now.” Trial Tr. p. 296. Scroggin later called

      V.M. and told her that he had set her vehicle on fire, but that he had “put it out

      for you.” Trial Tr. p. 296. Scroggin also left a voice message telling V.M. that

      he was sorry for what happened to her vehicle and offering to fix it.


[7]   After V.M. had turned off her phone and slept for a while, she awoke to find

      more voice messages from Scroggin. V.M. called her mother and told her to

      check on a red Monte Carlo that was parked outside of V.M.’s mother’s home.

      The red Monte Carlo was registered to V.M.’s brother and was the vehicle that

      V.M.’s mother had used to move Scroggin out of V.M.’s residence the day

      before. V.M.’s mother saw that the Monte Carlo, which was parked on the

      street outside of her home, had been damaged on the driver’s side. Specifically,

      the Monte Carlo had been dented on the driver’s side and the entire driver’s

      side was marred by a streak of white paint consistent with paint transferred

      Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 4 of 26
       from a white or lighter-colored vehicle. The damage to the Monte Carlo was

       later estimated to be $2000.00.


[8]    V.M.’s mother used another vehicle to pick V.M. up from her friend’s residence

       and drive her to her residence, which was about six miles from her mother’s

       home. V.M.’s red Ford Explorer was parked under the carport in front of

       V.M.’s residence. The Ford Explorer had been damaged by a fire that was later

       determined to have originated in the glove box and to have been intentionally

       set. The Ford Explorer was damaged to the point that it was no longer

       driveable. V.M. indicated that in light of the intimidating phone calls that she

       had received from Scroggin, his act of arson made her even more afraid of him

       because she knew he was capable of carrying through on his levied threats.

       Rouhselange’s white minivan, which had been reported stolen, was later

       located by Rouhselange in a parking lot near the bar in Lake County from

       which Scroggin had taken it. The minivan had sustained front-end damage

       near the passenger-side headlamp.


[9]    On March 13, 2012, V.M. obtained a no-contact order against Scroggin. V.M.

       subsequently received messages from Scroggin threatening to “set [her] place on

       fire.” Trial Tr. p. 333. After receiving Scroggin’s threat, V.M. and her son

       moved into a domestic violence shelter, where they stayed for thirty-six days.


[10]   On May 4, 2012, the State charged Scroggin with Class D felony arson, Class D

       felony intimidation, and Class A misdemeanor criminal mischief. Scroggin was

       arrested on May 11, 2012, and remained in jail through the time of his trial.


       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 5 of 26
       During a May 15, 2012 initial hearing, Scroggin indicated that he wished to

       proceed pro se and requested a “fast and speedy” trial date pursuant to Indiana

       Rule of Criminal Procedure 4(B)(1) (“Criminal Rule 4(B)(1)”). May 15, 2012

       Tr. p. 8. The trial court granted Scroggin’s request and scheduled a jury trial for

       July 23, 2012.


[11]   On June 25, 2012, the State filed a verified motion for a continuance because

       the deputy prosecutor had learned that a critical witness was unavailable to

       testify the week of July 23, 2012. The trial court granted the State’s motion

       over Scroggin’s objection. The trial court rescheduled Scroggin’s trial for

       August 6, 2012. On June 29, 2012, the State filed an additional charge of Class

       C felony receiving stolen auto parts. The State also subsequently alleged that

       Scroggin was a habitual offender.


[12]   Scroggin requested that he be appointed counsel during a July 2, 2012 initial

       hearing on the receiving stolen auto parts charge. The trial court granted

       Scroggin’s requested and appointed counsel to represent Scroggin. On July 3,

       2012, Scroggin filed a pro se motion for discharge, claiming that the seventy-day

       time limit for bringing an individual to trial prescribed in Criminal Rule 4(B)

       would expire on July 23, 2012, and that he should be discharged if not tried by

       that date.


[13]   On July 13, 2012, the trial court held a hearing to discuss Scroggin’s trial date.

       During this hearing, Scroggin’s counsel notified the trial court that Scroggin

       “want[ed] to go ahead with” the August 6, 2012 trial date. July 13, 2012 Tr. p.


       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 6 of 26
       3. Also during this hearing, Scroggin personally confirmed that he wished to go

       ahead with the August 6, 2012 trial date.


[14]   Scroggin’s three-day trifurcated jury trial commenced on August 6, 2012.

               On August 9, 2012, Scroggin was found guilty of Arson, Intimidation,
               Criminal Mischief, and Receiving Stolen Auto Parts. On January 4,
               2013, the trial court sentenced Scroggin to three years imprisonment
               for Arson, three years imprisonment for Intimidation, one year
               imprisonment for Criminal Mischief, and eight years imprisonment for
               Receiving Stolen Auto Parts; the sentences were run consecutively to
               one another. Pursuant to the jury's finding that Scroggin was a
               Habitual Offender, the trial court enhanced his sentence by 4½ years.
               This yielded an aggregate term of imprisonment of 19½ years.


       Scroggin v. State, No. 64A04-1306-CR-312 *1 (Ind. Ct. App. June 30, 2014).

       This belated appeal follows.



                                 Discussion and Decision
                                   I. Right to a Speedy Trial
[15]   Scroggin contends that his convictions should be reversed and the charges

       dismissed because the State failed to bring him to trial within the time period

       required by Criminal Rule 4(B)(1).

               When, as here, a defendant moves for a speedy trial, he invokes the
               procedures and deadlines of Criminal Rule 4(B)(1), which provides in
               relevant part:
                       If any defendant held in jail on an indictment or an
                       affidavit shall move for an early trial, he shall be
                       discharged if not brought to trial within seventy (70)
                       calendar days from the date of such motion, except where

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 7 of 26
                a continuance within said period is had on his motion, or
                the delay is otherwise caused by his act, or where there
                was not sufficient time to try him during such seventy (70)
                calendar days because of the congestion of the court
                calendar.
        Our supreme court has noted that “[t]he purpose served by Crim. R.
        4(B) is to prevent a defendant from being detained in jail for more than
        70 days after requesting an early trial.” Williams v. State, 631 N.E.2d
        485, 486 (Ind. 1994). However, [Indiana Rule of Criminal Procedure
        4(D) (“Criminal Rule 4(D)”)] provides for an extension of this seventy-
        day period. See Griffin v. State, 695 N.E.2d 1010, 1013 (Ind. Ct. App.
        1998). Specifically,
                If when application is made for discharge of a defendant
                under this rule, the court be satisfied that there is evidence
                for the state, which cannot then be had, that reasonable
                effort has been made to procure the same and there is just
                ground to believe that such evidence can be had within
                ninety (90) days, the cause may be continued, and the
                prisoner remanded or admitted to bail; and if he be not
                brought to trial by the state within such additional ninety
                (90) days, he shall then be discharged.
        Ind. Crim. Rule 4(D). Moreover,
                [a]ny exigent circumstances may warrant a reasonable
                delay beyond the limitations of Crim. R. 4, due deference
                being given to the defendant’s speedy trial rights under the
                rule. The reasonableness of such delay must be judged in
                the context of the particular case, and the decision of the
                trial judge will not be disturbed except for an abuse of
                discretion. The purpose of Crim. R. 4(B) is to assure a
                speedy trial. This purpose is well served if the State must
                bring a defendant to trial within seventy days or show
                compelling reasons for the failure to do so. The rule was
                designed to assure criminal defendants speedy trials, not
                to provide them with a technical means of avoiding trial.
        Smith v. State, 802 N.E.2d 948, 951 (Ind. Ct. App. 2004); see also
        Lockhart v. State, 671 N.E.2d 893, 897 (Ind. Ct. App. 1996) (noting
        abuse of discretion standard).


Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 8 of 26
       Wilhelmus v. State, 824 N.E.2d 405, 411-12 (Ind. Ct. App. 2005).


[16]   In Griffin, the defendant was charged with possession of cocaine and possession

       of marijuana. 695 N.E.2d at 1012. Defendant requested a speedy trial pursuant

       to Criminal Rule 4(B)(1). Id. The State filed a motion for continuance upon

       learning that a chemist for the State Police was unavailable to testify on the

       scheduled trial date. Id. The trial court granted the State’s motion for a

       continuance and scheduled a new trial date for a date that was twenty-eight

       days after the expiration of the time permitted by Criminal Rule 4(B)(1). Id.

       Defendant subsequently appealed.


[17]   On review, we concluded that while the trial date fell outside the original

       seventy-day limit, it fell within the additional ninety days provided for by

       Criminal Rule 4(D). Id. at 1013. Specifically, we stated as follows:

               In other words, “the time within which a defendant who has
               demanded a speedy trial may be timely tried may be extended by an
               additional ninety days if the court is satisfied there is State’s evidence
               which cannot be had on the timely trial date but that will be available
               within ninety days.” Wiseman v. State, 600 N.E.2d 1375, 1377 (Ind.
               Ct. App. 1992), reh’g denied, trans. denied. Furthermore, when the
               unavailable evidence is a particular witness, the “reasonable effort”
               requirement of the rule is satisfied where the State is not at fault for the
               absence of the witness. Id.
               In its motion for continuance, the State explained that a witness was
               unavailable for the trial date of July 25, 1995 (sixty-nine days after the
               speedy trial motion), because of a previous arrangement to be out of
               the country. The trial court granted the State’s motion and reset the
               trial date for August 23, 1995, (ninety-eight days after the speedy trial
               motion). Because the State did not procure the absence of the witness,
               the trial court was within its power under the statute to extend the
               speedy trial period by ninety days. As such, the new trial set for

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 9 of 26
               twenty-eight days after the expiration of the seventy-day period was
               timely.


       Id.


[18]   In challenging his convictions on appeal, Scroggin argues that the trial court

       abused its discretion in granting the State’s request for a two-week continuance.

       For its part, the State argues that the trial court acted within the trial court’s

       discretion in granting its request for a continuance. We agree with the State.


[19]   Like in Griffin, here, the State sought a continuance of Scroggin’s trial which

       was scheduled for July 23, 2012, because “a critical witness [was] unavailable to

       testify the week of July 23, 2012.” Appellant’s App. p. 22. In its motion for a

       continuance, the State indicated that the witness would be available the week of

       August 6, 2012. During a June 25, 2012 hearing, the State further indicated

       that the reason for its request was that the State had learned that one of its

       critical witnesses was “moving out of state and will be back here on August 6

       which is only two weeks later.” June 25, 2012 Tr. p. 2. Because the reason for

       the State’s request for a continuance was that there was evidence for the State,

       which—despite the State’s best efforts—would not available on July 23, 2012,

       but would be available two weeks later, we conclude that the continuance of

       Scroggin’s trial to a date approximately two weeks after the expiration of the

       seventy-day period described in Criminal Rule 4(B)(1) did not violate




       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 10 of 26
       Scroggin’s right to a speedy trial. See Criminal Rule 4(D). As such, the trial

       court did not abuse its discretion in this regard.1


[20]   Further, although Scroggin initially filed a pro se motion to discharge for failure

       to bring to trial within seventy days, the trial court need not have responded to

       Scroggin’s motion because it was filed after Scroggin requested and was

       appointed counsel. We recently reaffirmed this position in Black v. State, 7

       N.E.3d 333 (Ind. Ct. App. 2014). In Black, we concluded as follows:

               As our supreme court explained in [Underwood v. State, 722 N.E.2d 828
               (Ind. 2000)], “once counsel was appointed, Defendant spoke to the
               court through counsel. The trial court was not required to respond to
               Defendant’s request or objection. To require the trial court to respond
               to both Defendant and counsel would effectively create a hybrid
               representation to which Defendant is not entitled.” Underwood, 722
               N.E.2d at 832. Because Black’s pro se request was made after counsel
               was appointed, the trial court was not required to respond to Black’s
               early trial request. See id. Black has not established that he should
               have been released pursuant to Criminal Rule 4(B).




               1
                  To the extent that Scroggin relies on this court’s opinions in Schumann v. State, 172 Ind.
       App. 383, 360 N.E.2d 277 (1977) and Crosby v. State, 597 N.E.2d 984 (Ind. Ct. App. 1992) in support
       of his claims, we observe that neither case considers whether a continuance was proper under
       Criminal Rule 4(D). In Schumann, this court affirmed the judgment of the trial court concluding that
       although the State’s motion for a continuance did not conform to the mandates of Indiana Code
       section 35-1-26-2, which has subsequently been repealed, the defendant did not preserve the claimed
       error for appeal. 172 Ind. App. at 385, 360 N.E.2d at 278-79. In Crosby, the defendant’s trial was
       not continued because the evidence that was unavailable to the State was a result of negligence by
       the State in failing to comply with discovery and its late addition and amendment of the charges. 597
       N.E.2d at 988. As such, we conclude that Scroggin’s reliance on these cases is misplaced.



       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015    Page 11 of 26
       7 N.E.3d at 338. Similarly, here, Scroggin’s pro se motion to discharge was

       made after counsel was appointed. Scroggin requested the appointment of

       counsel during a July 2, 2012 pre-trial hearing.2 Scroggin filed his pro se request

       for dismissal on July 3, 2012. In light of the Indiana Supreme Court’s holding

       in Underwood and our holding in Black, the trial court was not required to

       respond to Scroggin’s early trial request. Scroggin has not established that he

       should have been released pursuant to Criminal Rule 4(B)(1).


[21]   Furthermore still, Scroggin appears to have subsequently acquiesced to the

       August 6, 2012 trial date. During trial, the following exchange took place:

               [Deputy Prosecutor]: We’re set for trial presently [on] August 6th. I
               know counsel was hoping to address that today and he has some
               discussion for the court.
               [Defense Counsel]: Judge, I discussed it with my client. As you
               know, I was just appointed, but he wants to go ahead with that trial
               date.
               [The Court]:             We can do that. Sure. Happy to.
               [Defense Counsel]: Okay. So we’re just going to reaffirm the trial
               date.




               2
                   Scroggin’s counsel filed his appearance on July 10, 2012. In Black, we explicitly agreed
       with Judge Friedlander’s dissenting opinion in Fletcher v. State, 959 N.E.2d 922, 930 (Ind. Ct. App.
       2012), in which Judge Friedlander indicated that he believed that Underwood and Jenkins v. State,
       809 N.E.2d 361, 367 (Ind. Ct. App. 2004), trans. denied, did not indicate that the trial court need not
       respond to a defendant’s pro-se motion once counsel has filed an appearance, but rather clearly stated
       that the trial court need not respond to a defendant’s pro-se motion once counsel has been appointed.
       Because we agree with this court’s conclusions in Black and with Judge Friedlander’s reading of
       Underwood and Jenkins, we conclude that the relevant date for which the trial court need not respond
       to any pro-se motion filed by Scroggin is July 2, 2012, or the date that counsel was appointed to
       represent Scroggin.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015      Page 12 of 26
        [The Court]:           That will be good. You’ve informed him of the
        trials and tribulations?
        [Defense Counsel]: I’ve gone over all the penalties and given him my
        opinion and he knows it.
        [The Court]:             Let’s hear you do it to him one more time.
        [Defense Counsel]: You know that they filed a habitual against you?
        You understand that?
        [Defendant]:             Yes.
        [Defense Counsel]: And counting all these different charges up by
        going to trial, if you lose you’re looking at the potential of 11 years or
        more?
        [Defendant]:             Yes.
        [Defense Counsel]: And my advice to you has been that you give me
        some time to try to either work this out or better prepare, and you’ve
        told me you do not want to do that. You want to go ahead with the
        trial?
        [Defendant]:             Yes.
        [The Court]:             Okay.
        [Defense Counsel]: Thank you, Your Honor.
        [The Court]:             August 6th it is.


July 13, 2012 Tr. pp. 2-3. Because Scroggin indicated to the court that he

accepted the August 6, 2012 trial date, Scroggin did not maintain a position

consistent with his request for a trial earlier than August 6, 2012. As such, he

may not now, on appeal, successfully assert that the trial court abused its

discretion by failing to bring him to trial within the seventy-day period

prescribed in Criminal Rule 4(B)(1).




Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 13 of 26
                         II. Ineffective Assistance of Counsel
[22]   Scroggin also contends that he received ineffective assistance of trial counsel.

       The right to effective counsel is rooted in the Sixth Amendment to the United

       States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

       Sixth Amendment recognizes the right to the assistance of counsel because it

       envisions counsel’s playing a role that is critical to the ability of the adversarial

       system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

       668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

       must be whether counsel’s conduct so undermined the proper function of the

       adversarial process that the trial court cannot be relied on as having produced a

       just result.” Strickland, 466 U.S. at 686.


[23]   A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

       prong, the petitioner must establish that counsel’s performance was deficient by

       demonstrating that counsel’s representation “fell below an objective standard of

       reasonableness, committing errors so serious that the defendant did not have

       the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that

       even the finest, most experienced criminal defense attorneys may not agree on

       the ideal strategy or most effective way to represent a client, and therefore,

       under this prong, we will assume that counsel performed adequately and defer

       to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective. Id.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 14 of 26
[24]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

       may show prejudice by demonstrating that there is “a reasonable probability

       (i.e. a probability sufficient to undermine confidence in the outcome) that, but

       for counsel’s errors, the result of the proceeding would have been different.” Id.

       A petitioner’s failure to satisfy either prong will cause the ineffective assistance

       of counsel claim to fail. See Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999).

       Stated differently, “[a]lthough the two parts of the Strickland test are separate

       inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845

       N.E.2d 1027, 1031 (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


[25]   In arguing that his trial counsel provided ineffective assistance, Scroggin claims

       that his counsel’s performance was deficient because counsel failed to file a

       motion for discharge or address Scroggin’s pro se motion for discharge. Again,

       in order to raise a successful claim of ineffective assistance of counsel, Scroggin

       had to prove that prejudice, i.e., that but for counsel’s alleged error, the result of

       the proceedings would have been different. Having concluded above that the

       trial court properly granted the State’s motion for a continuance to a date

       outside of the original seventy-day period prescribed by Criminal Rule 4(B)(1)

       but within the additional time allowed by Criminal Rule 4(D), we conclude that

       Scroggin has failed to prove that he was prejudiced by his counsel’s failure to

       file a motion for discharge or to address Scroggin’s pro se motion for discharge.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 15 of 26
                              III. Sufficiency of the Evidence
[26]   Scroggin also contends that the evidence is insufficient to sustain his conviction

       for Class C felony receiving auto parts.

                When reviewing the sufficiency of the evidence to support a
                conviction, appellate courts must consider only the probative evidence
                and reasonable inferences supporting the verdict. It is the fact-finder’s
                role, not that of appellate courts, to assess witness credibility and
                weigh the evidence to determine whether it is sufficient to support a
                conviction. To preserve this structure, when appellate courts are
                confronted with conflicting evidence, they must consider it most
                favorably to the trial court’s ruling. Appellate courts affirm the
                conviction unless no reasonable fact-finder could find the elements of
                the crime proven beyond a reasonable doubt. It is therefore not
                necessary that the evidence overcome every reasonable hypothesis of
                innocence. The evidence is sufficient if an inference may reasonably
                be drawn from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).


[27]   In charging Scroggin with Class C felony receiving stolen auto parts, the State

       alleged:

                [T]hat [Scroggin] did on or about March 11, 2012, in the County of
                Porter, State of Indiana, knowingly or intentionally receive, retain or

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 16 of 26
               dispose of a motor vehicle of Paul Rouhselange, to wit: 2001 white
               Ford mini van, which had been the subject of theft, and while having a
               prior conviction under this subsection or subsection (b), all of which is
               contrary to the form of the statute and against the peace and dignity of
               the State of Indiana.


       Appellant’s App. p. 22. The offense of receiving stolen auto parts is governed

       by Indiana Code 35-43-4-2.5, which, on the date in question, read as follows:

       “(c) A person who knowingly or intentionally receives, retains, or disposes of a

       motor vehicle or any part of a motor vehicle of another person that has been the

       subject of theft commits receiving stolen auto parts, a Class D felony.”

       “However, the offense is a Class C felony if the person has a prior conviction of

       an offense under this subsection or subsection (b).”3 Ind. Code § 35-43-4-2.5(c).

       Thus, in order to prove that Scroggin committed Class C felony receiving stolen

       auto parts, the State had to prove that: on or about March 11, 2012, Scroggin,

       knowingly or intentionally received, retained, or disposed of a white Ford

       minivan that belonged to Rouhselange, and that Scroggin had a prior

       conviction under either subsection (b) or (c) of Indiana Code section 35-43-4-

       2.5.


[28]   At trial, the State presented evidence demonstrating that after stealing

       Rouhselange’s white Ford minivan, Scroggin, knowing the minivan had been




               3
                    Subsection (b) provides that “[a] person who knowingly or intentionally exerts
       unauthorized control over the motor vehicle of another person, with the intent to deprive the owner
       of: (1) the vehicle’s value or use; or (2) a component part … of the vehicle; commits auto theft.” Ind.
       Code § 35-43-4-2.5(b).

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015      Page 17 of 26
       the subject of a theft, retained possession of the van and drove it from the bar in

       Lake County to Porter County. Specifically, Scroggin took Rouhselange’s

       vehicle from a bar in Lake County without permission to do so and retained

       possession of the van long enough to drive from Lake County to Porter County

       where he committed various criminal acts against V.M. and her family. After

       subjecting the minivan to front-end damage, Scroggin later disposed of the van

       in a parking lot near the bar in Lake County. In addition, at some point during

       the late evening or early morning in question, Scroggin called V.M. and told her

       that he was “in a stolen vehicle, I got money in my pocket, and I don’t give … a

       f[***] about anything right now.” Trial Tr. p. 296. This evidence is sufficient

       to support an inference that Scroggin committed Class C felony receiving stolen

       auto parts.


[29]   Scroggin does not dispute that he has a prior conviction under either subsection

       (b) or (c) of Indiana Code section 35-43-4-2.5. Rather, in challenging the

       sufficiency of the evidence to sustain his receiving auto parts conviction,

       Scroggin argues that that the State was required to prove that he received the

       vehicle at issue after it was stolen by another, and that his conviction was based

       on circumstantial evidence alone. In Gibson v. State, 643 N.E.2d 885 (Ind.

       1994), the Indiana Supreme Court, agreeing with the interpretation of this

       court, held that in order to prove a charge of receiving stolen property, the State

       is not required to prove the presence of a third-party thief because the “‘statute

       does not require as an element of the offense any consideration of who may

       have actually stolen the property.’” 643 N.E.2d at 888 (quoting with approval


       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 18 of 26
       Gibson v. State, 622 N.E.2d 1050, 1054 (Ind. Ct. App. 1993)). As such,

       Scroggin’s claim that the evidence is insufficient to prove his guilt because there

       was no evidence that Scroggin received the van after it was stolen by another

       must fail. In addition, the Indiana Supreme Court has held that a conviction

       may be based entirely on circumstantial evidence. Franklin v. State, 715 N.E.2d

       1237, 1241 (Ind. 1999). “Circumstantial evidence will be deemed sufficient if

       inferences may reasonably be drawn that enable the trier of fact to find the

       defendant guilty beyond a reasonable doubt.” Id. (citation omitted). As we

       stated above, the evidence presented by the State, whether direct or

       circumstantial, is sufficient to allow the jury to reasonably infer Scroggin’s guilt.

       Scroggin’s claim to the contrary is effectively an invitation to reweigh the

       evidence, which we will not do. See Stewart, 768 N.E.2d at 435.


                                      IV. Sentencing Issues
[30]   Scroggin also contends that the trial court abused its discretion in sentencing

       him to an aggregate term of nineteen-and-one-half years. Specifically, Scroggin

       claims that his criminal actions arose from a single episode of criminal conduct,

       and, as a result, his sentence should have been limited to no more than

       fourteen-and-one-half years, i.e., ten years for his actual criminal acts enhanced

       by four-and-one-half years by virtue of his status as a habitual offender. Sloan

       also appears to claim that the trial court abused its discretion in ordering his

       individual sentences to run consecutive to one another.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 19 of 26
[31]   In general, a trial court cannot order consecutive sentences in the absence of

       express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006).

       “‘A sentence that is contrary to or violative of a penalty mandated by statute is

       illegal in the sense that it is without statutory authorization.’” Id. (quoting

       Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)). “An appellate claim of

       sentencing error is subject to review for abuse of trial court discretion; reversal

       results ‘only if there has been a manifest abuse of discretion.’” Reynolds v. State,

       657 N.E.2d 438, 440 (Ind. Ct. App. 1995) (quoting Fugate v. State, 608 N.E.2d

       1370, 1374 (Ind. 1993)). “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.”

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on

       reh’g, 875 N.E.2d 218 (Ind. 2007) (quotation omitted).


                         A. Single Episode of Criminal Conduct
[32]   Indiana Code section 35-50-1-2(c)(2) provides that except for statutory crimes of

       violence, “the total of the consecutive terms of imprisonment … to which the

       defendant is sentenced for felony convictions arising out of an episode of

       criminal conduct shall not exceed the advisory sentence for a felony which is

       one (1) class of felony higher than the most serious of the felonies for which the

       person has been convicted.” The term “‘episode of criminal conduct’ means

       offenses or a connected series of offenses that are closely related in time, place,

       and circumstance.” Ind. Code § 35-50-1-2(b).



       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 20 of 26
               In determining whether multiple offenses constitute an episode of
               criminal conduct, the focus is on the timing of the offenses and the
               simultaneous and contemporaneous nature, if any, of the crimes.”
               [Reed, 856 N.E.2d at 1200]. “[A]dditional guidance on the question”
               can be obtained by considering “whether ‘the alleged conduct was so
               closely related in time, place, and circumstance that a complete
               account of one charge cannot be related without referring to the details
               of the other charge.’” Id. (quoting O’Connell v. State, 742 N.E.2d 943,
               950-51 (Ind. 2001)).


       Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008). “Whether certain

       offenses constitute a ‘single episode of criminal conduct’ is a fact-intensive

       inquiry” to be determined by the trial court. Schlichter v. State, 779 N.E.2d 1155,

       1157 (Ind. 2002).


[33]   In claiming that all of his criminal acts were part of a single episode of criminal

       conduct, Scroggin argues that “[p]er the States [sic] theory all acts were

       performed in an effort to either entice or coerce [V.M.] to return to Scroggin’s

       love and care.” Appellant’s Br. pp. 23-24. Again, Scroggin was convicted of

       the following crimes: (1) Class C felony receiving stolen auto parts, (2) Class A

       misdemeanor criminal mischief, (3) Class D felony arson, and (4) Class D

       felony intimidation. Most of Scroggin’s crimes involved different victims.

       Each of the crimes also took place in different locations.


                            1. Class C Felony Receiving Stolen Auto Parts

[34]   With respect to Scroggin’s conviction for receiving stolen auto parts, the victim

       was an elderly gentleman named Paul Rouhselange, whom Scroggin had

       befriended earlier that evening. The crime was complete when Scroggin took


       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 21 of 26
       Rouhselange’s van without permission and drove it away from the bar in New

       Chicago and into Porter County. A complete account of this offense can be

       related without reference to any of Scroggin’s other criminal acts. We therefore

       conclude that the trial court did not abuse its discretion in determining that

       Scroggin’s act of receiving stolen auto parts constituted a separate criminal

       episode from his other criminal actions.


[35]   Furthermore, even if we were to believe Scroggin’s claim that he only took and

       retained possession of Rouhselange’s van for the purpose of committing his acts

       against V.M. and her family, we have previously held that “whether a series of

       crimes are related in some way is not the relevant test” for whether criminal

       actions were part of a single episode of criminal conduct. See Reeves v. State, 953

       N.E.2d 665, 671 (Ind. Ct. App. 2011), trans. denied. As such, the mere fact that

       Scroggin’s act of receiving stolen auto parts may have been in some way related

       to his other criminal acts does not, without more, indicate that his actions were

       all part of a single episode of criminal conduct.


                             2. Class A Misdemeanor Criminal Mischief

[36]   With respect to Scroggin’s conviction for criminal mischief, the victim was

       V.M.’s brother and the crime occurred outside of V.M.’s mother’s residence. In

       committing the crime of criminal mischief, Scroggin drove to V.M.’s mother’s

       residence and struck the driver’s side of V.M.’s brother’s vehicle. V.M.’s

       mother’s residence was located miles away from either the bar in Lake County

       from which Scroggin took Rouhselange’s van and V.M.’s residence. The facts

       relevant to provide that Scroggin committed the crime of criminal mischief
       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 22 of 26
       were separate and distinct from those relevant to prove that Scroggin

       committed his other criminal acts and a complete account of this offense can be

       related without reference to any of Scroggin’s other criminal acts. Accordingly,

       we conclude that the trial court did not abuse its discretion in determining that

       Scroggin’s act of committing criminal mischief constituted a separate criminal

       episode from his other criminal actions. Again, as we have stated above, the

       mere fact that Scroggin’s act of receiving stolen auto parts may have been in

       some way related to his other criminal acts does not, without more, indicate

       that his actions were all part of a single episode of criminal conduct. See id.


                              3. Class D Felony Arson and Intimidation

[37]   With respect to Scroggin’s convictions for arson and intimidation, the State

       concedes that Scroggin’s criminal acts “may have been one episode” of criminal

       conduct. Appellee’s Br. p. 21. We agree. In both instances, the victim was

       V.M. In committing these crimes, Scroggin made numerous threatening phone

       calls and left numerous threatening messages on V.M.’s voice mail. Scroggin

       also set fire to the glove compartment of V.M.’s vehicle, which was parked

       outside of V.M.’s residence. Although Scroggin subsequently extinguished the

       fire, it was later determined that the vehicle was no longer drivable. V.M.

       indicated that in light of the intimidating phone calls that she had received from

       Scroggin, his act of arson made her even more afraid of him because she knew

       he was capable of carrying through on his levied threats. Although each crime

       can be proven without reference to the other, we conclude that Scroggin’s acts



       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 23 of 26
       were so closely related in circumstance to warrant a single episode of criminal

       conduct.


[38]   Having concluded that Scroggin’s convictions for Class D felony arson and

       Class D felony intimidation constituted a single episode of criminal conduct,

       we observe that, with respect to these two offenses, the total consecutive term to

       which Scroggin may be sentenced “shall not exceed the advisory sentence for a

       felony which is one (1) class of felony higher than the most serious of the

       felonies for which the person has been convicted.” Ind. Code § 35-50-1-2. As

       such, because the highest level felony for which Scroggin was convicted with

       respect to this single episode of criminal conduct was a D felony, his total

       consecutive term for these crimes may not exceed the advisory sentence for a

       Class C felony, which is four years. See Ind. Code § 35-50-2-6.


[39]   Review of the record indicates that, with respect to these two crimes, the trial

       court sentenced Scroggin to an aggregate term of six years. Such a sentence

       amounts to an abuse of the trial court’s discretion. Accordingly, we remand to

       the trial court with the instruction that the trial court impose an aggregate

       sentence for these two crimes that does not exceed four years.


                                     B. Consecutive Sentences
[40]   Scroggin also appears to claim that the trial court abused its discretion in

       sentencing him because the trial court did not set forth its reasoning for

       imposing consecutive sentences for the separate episodes of criminal conduct.

       We disagree.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 24 of 26
[41]   In sentencing Scroggin, the trial court set forth a number of aggravating and

       mitigating factors and determined that the aggravating factors “far

       outweigh[ed]” the mitigating factors. Sent. Tr. p. 30. Specifically, the trial

       court stated as follows:

               I had the opportunity to go over this presentence report back … when
               it was first filed. And I went through the whole thing and I thought to
               myself, my lord, what a history that is; what’s appropriate in these
               circumstances? … But I looked through this thing and read it again
               here, twice, in fact, this past week. And what it kind of shows me is
               that out of the last nine years, you’ve been free and outside of prison
               for three, six of the last nine you’ve been in jail. They mentioned in
               their arguments that you had 21 arrests. Those 21 arrests resulted in
               … five felony convictions and eight misdemeanor convictions. Over
               the course of that period of time, you were granted deferred
               prosecution, you were granted probation, you were put in jail, you
               were put in prison, you were on parole, you had substance abuse
               treatment, you had anger management and you had work release, and
               you never successfully completed any of them. So I look at this, and I
               say, my lord, what is it that this Court, society, can do to help you to
               get you on the right track, and I’ve come to the conclusion that the
               answer is nothing. This has to come from within you.… And you’re
               telling me at this point that it is. Well, maybe it is and maybe it isn’t.
               One sentence in the presentence report stood out to me. And that is
               this sentence, “Scroggin is not viewed as suitable for life in a free
               society at this time.” I have never ever heard that from a probation
               officer before, and I haven’t really considered that. I’ve taken into
               account your history to include your younger times with the troubles
               that you went through during your childhood -- early childhood and
               your youth. And I find that the aggravating circumstances far
               outweigh any mitigating circumstances.


       Sent. Tr. pp. 28-30. Contrary to Scroggin’s assertion otherwise, this statement

       explains why the trial court imposed consecutive sentences when sentencing

       Scroggin. Scroggin’s claim in this regard therefore is without merit.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 25 of 26
                                               Conclusion
[42]   In sum, we conclude that the trial court did not violate Scroggin’s right to a

       speedy trial, that Scroggin did not receive ineffective assistance of trial counsel,

       and that the evidence is sufficient to sustain Scroggin’s conviction for Class C

       felony receiving stolen auto parts. We also conclude that the trial court acted

       within its discretion in determining that Scroggin’s acts relating to his Class C

       felony receiving stolen auto parts conviction and his Class A misdemeanor

       criminal mischief conviction were separate episodes of criminal conduct from

       one another. Scroggin’s actions relating to these convictions were also separate

       episodes of criminal conduct from Scroggin’s acts relating to his convictions for

       Class D felony arson and intimidation. However, because we conclude that

       Scroggin’s convictions for Class D felony arson and intimidation were part of a

       single episode of criminal conduct, we further conclude that the trial court

       abused its discretion in imposing the six-year portion of Scroggin’s aggregate

       nineteen-and-one-half-year sentence that related to these crimes. In reaching

       this conclusion observe that the maximum consecutive sentence available for

       these two crimes was four years, i.e., the advisory sentence for a Class C felony.

       We therefore remand the matter to the trial court with the instruction to impose

       a sentence that is consistent with this memorandum decision.


[43]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded to the trial court with instructions.


       Najam, J., and Mathias, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1410-CR-352 | March 31, 2015   Page 26 of 26
