MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 05 2020, 10:56 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Talisha R. Griffin                                       Steven J. Hosler
Marion County Public Defender Agency                     Samantha M. Sumcad
Appellate Division                                       Deputy Attorneys General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew Christopher Yost,                                June 5, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2834
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W. Hawkins,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G05-1909-F5-35951



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020                Page 1 of 11
                                              Case Summary
[1]   Matthew Christopher Yost (“Yost”) appeals his five convictions of criminal

      recklessness, as Level 5 felonies,1 and his sentence. We dismiss, without

      prejudice, his appeal of his convictions, and we reverse his sentence and

      remand with instructions.



                                                    Issues
[2]   Yost raises two issues which we restate as follows:


                 I.       Whether Yost may challenge his convictions on direct
                          appeal after pleading guilty without a plea agreement.


                 II.      Whether the trial court abused its discretion when it
                          imposed consecutive terms of imprisonment.


                                Facts and Procedural History
[3]   On September 12, 2019, the State charged Yost with five counts of criminal

      recklessness, as Level 5 felonies. At his October 9 guilty plea hearing, Yost pled

      guilty to all five counts. At that hearing, Yost admitted as follows.


[4]   On September 7, 2019, Yost reported to police that there was a silver Dodge

      Charger parked in front of his house and that the occupants of the Charger were

      firing guns and attempting to enter his house. When Indianapolis Metropolitan



      1
          Ind. Code § 35-42-2-2(a), (b)(2).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020   Page 2 of 11
      Police Department (“IMPD”) Officer Joshua Brown (“Officer Brown”) and

      Detective Theodore Brink “(Det. Brink”) arrived at the scene, there was a silver

      Dodge Charger there but no individuals firing any weapons or trying to enter

      the house. The officers were in marked cars and in full police uniforms. The

      officers saw Yost look out through the blinds of a window in his house several

      times, but Yost relayed through dispatch that he did not see officers outside of

      his house. Dispatch then hung up so that the officers on the scene could

      attempt to communicate with Yost.


[5]   After hanging up, Yost opened fire on the IMPD officers, firing bullets through

      the French doors on the east side of the house towards the front yard and street

      where Det. Brink and Officer Brown were located. The officers took cover and

      requested back up. At least one of the bullets fired towards the officers hit the

      house behind where they had taken cover. Yost also fired bullets into the house

      of his neighbor, Mary Glaser (“Glaser”), and into an alley between Yost and

      Glaser’s houses. Yost reported that at the time of the incident he was suffering

      from withdrawal of Benzodiazepine, his mental health medication.


[6]   Yost having admitted to a factual basis for his guilty plea, the trial court entered

      convictions on all five criminal recklessness counts.


[7]   At Yost’s November 6 sentencing hearing, the State offered testimony from

      IMPD officers as to the timing in between the rounds of gunshots during the

      September 7 incident. The first volley, comprised of two shots, was fired by

      Yost through the French double doors on the side of Yost’s house and towards


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020   Page 3 of 11
      Officer Brown and Det. Brink. After approximately two minutes of silence,

      Yost fired a second volley of gunshot rounds, a number of which ricocheted off

      the sidewalk in between the silver Dodge and the black CRV behind which the

      officers had taken cover. During that volley, Det. Brink also heard gunshot

      rounds hitting buildings. Yost also fired gunshot rounds at Glaser’s house.

      Glaser was at a window looking across the side yard at Yost’s French double

      doors when Yost fired ten rounds at her house, three of which entered the

      house.


[8]   A third volley of gunshot rounds began approximately eight to ten minutes after

      the second volley. The third volley included four rounds which Det. Brink

      believed were fired from the back of Yost’s house towards other officers who

      had taken up position there. After the third volley ended, Det. Brink saw Yost

      open a window at the front of the house, yell something, and then close the

      window after Det. Brink called for Yost to show him his hands. Approximately

      ten minutes after the third volley, Yost fired another single gunshot toward the

      alley behind his and Glaser’s houses. Then a special weapons and tactics

      (“SWAT”) team arrived and ordered Yost to exit his house. Yost complied and

      was arrested.


[9]   From this incident, Yost was charged with five separate offenses. Counts I and

      III were based on the second volley of gunshot rounds fired at Glaser’s house

      and into the sidewalk and street in front of Yost’s house, respectively. Count II

      was based on a round of gunshots hitting Lexington Avenue after passing Det.

      Brink during one of the first three volleys. Count IV stemmed from the first

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020   Page 4 of 11
       volley of gunshot rounds fired at the sidewalk and street between Det. Brink

       and Officer Brown. And, Count V was based on the single gunshot fired into

       the alley between Yost’s and Glaser’s house approximately ten minutes after

       the third volley.


[10]   At the sentencing hearing, the State also presented evidence of Yost’s extensive

       criminal history. The trial court sentenced Yost to an aggregate fifteen-year

       term of imprisonment. Specifically, the court sentenced Yost to six years each

       on Counts I and III with both counts running concurrently; three years on

       Count II, which was to run concurrently with all other counts; six years on

       Count IV to be served consecutively to Counts I and III; and three years on

       Count V to be served consecutively to Count IV. Yost now appeals his

       convictions and his sentence.



                                  Discussion and Decision
                                      Appeal of Convictions
[11]   Yost directly appeals his convictions as violations of the constitutional

       prohibition against double jeopardy, despite the fact that he pled guilty to all

       five convictions. However, it is well-settled that a conviction based on a guilty

       plea may not be challenged by direct appeal, Tumulty v. State, 666 N.E.2d 394,

       395 (Ind. 1996); rather, it must be challenged through a petition for post-

       conviction relief, Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). As we

       recently explained in Hoskins v. State, there are


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020   Page 5 of 11
               [t]wo exceptions to the prohibition on challenging a guilty plea
               on direct appeal…. First, a person who pleads guilty is entitled to
               contest on direct appeal the merits of a trial court’s sentencing
               decision where the trial court exercised sentencing discretion.
               Collins v. State, 817 N.E.2d 230 (Ind. 2004). Further, a person
               who pleads guilty is entitled to contest on direct appeal the trial
               court’s discretion in denying withdrawal of the guilty plea prior to
               sentencing. Brightman v. State, 758 N.E.2d [41, 44 (Ind. 2001)].


       143 N.E.3d 358, 360 (Ind. Ct. App. 2020) (emphasis added) (quoting Creekmore

       v. State, 853 N.E.2d 523, 532-33 (Ind. Ct. App. 2006), clarified on denial of reh’g,

       858 N.E.2d 230). See also Hayes v. State, 906 N.E.2d 819, 821 n.1 (Ind. 2009)

       (noting that, under Tumulty v. State, Hayes could not have directly appealed his

       conviction because he pled guilty, and holding the Court of Appeals acted

       contrary to Tumulty when it reversed Hayes’s conviction sua sponte); Mapp v.

       State, 770 N.E.2d 332, 334 (Ind. 2002) (reaching same conclusion within the

       context of a direct appeal based on double jeopardy grounds). Neither

       exception discussed in Hoskins applies here; therefore, Yost may not challenge

       his convictions through a direct appeal.


[12]   Yost asserts that the inability to bring a direct appeal of a conviction to which a

       defendant pled guilty applies only when there is a plea agreement, not when

       there is an “open” guilty plea, such as his, where the trial court is left with

       sentencing discretion. E.g., Collins, 817 N.E.2d at 231. However, the cases




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020   Page 6 of 11
       Yost cites are either inapplicable2 or contrary to Indiana Supreme Court

       precedent.3


[13]   Because Yost’s challenge to his convictions cannot be brought on direct appeal,

       we dismiss his appeal of his convictions without prejudice as to his ability to

       present his claim in a petition for post-conviction relief. See Hoskins, 143

       N.E.3d at 361.


                                        Consecutive Sentences
[14]   Yost also challenges his sentence, and that is a challenge that he may—indeed,

       must—raise in a direct appeal, if at all. Kling v. State, 837 N.E.2d 502, 504 (Ind.

       2005) (citing Collins, 817 N.E.2d at 230). Specifically, Yost contends that the

       trial court erred when it imposed consecutive terms of imprisonment that

       exceeded the maximum term allowed under Indiana Code Section 35-50-1-

       2(d)(2). A trial court has discretion to sentence a defendant to consecutive or

       concurrent terms of imprisonment. I.C. § 35-50-1-2(c); see also Cardwell v. State,



       2
         Graham v. State, 903 N.E.2d 538, 540 (Ind. Ct. App. 2009), involved a challenge to a sentence, not a
       conviction. And McElroy v. State, 864 N.E.2d 392, 396 (Ind. Ct. App.), trans. denied, involved a challenge to a
       conviction within the context of a PCR, not a direct appeal.
       3
         Yost cites Thompson v. State, 82 N.E3d 376, 379 (Ind. Ct. App. 2017), trans. denied; Kunberger v. State, 46
       N.E.3d 966, 971 (Ind. Ct. App. 2015); and Warton v. State, 42 N.E.3d 539, 540-41 (Ind. Ct. App. 2015). To
       the extent those cases hold that a defendant may directly appeal his conviction when he enters an “open”
       guilty plea, they are inconsistent with Supreme Court caselaw such as Hayes and Tumulty, both of which
       involved “open” guilty pleas. See Hayes, 906 N.E.2d at 820; Tumulty, 666 N.E.2d at 395. Moreover, they are
       distinguishable from the instant case in one very important respect; they all emphasized that they involved
       open pleas from which the defendants received no benefit. See, e.g., Thompson, 82 N.E3d at 379; Warton, 42
       N.E.3d at 540-41. Yost clearly did receive a benefit from his open guilty plea. Tr. at 74-55; 80-81 (both the
       prosecutor and trial court noting that, if Yost had not entered his guilty plea when he did, the State would
       have filed the additional charge of attempted murder for which the sentence of imprisonment would have
       been much longer).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020                      Page 7 of 11
       895 N.E.2d 1219, 1222 (Ind. 2008) (noting that sentencing decisions lie within

       the sound discretion of the trial court). An abuse of discretion occurs if the

       decision is “clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

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

       omitted), trans. denied.


[15]   Unless a defendant’s offenses are crimes of violence as defined by statute,4

       Indiana Code Section 35-50-1-2 limits the maximum consecutive terms of

       imprisonment that a trial court may impose for a single “episode of criminal

       conduct.” I.C. § 35-50-1-2(c), (d). The total of the consecutive terms of

       imprisonment to which a defendant may be sentenced for felony convictions

       arising out of an episode of criminal conduct is seven years when the most

       serious crime is a Level 5 felony. I.C. § 35-50-1-2(d)(2); see also Daugherty v.

       State, 52 N.E.3d 885, 895 (Ind. Ct. App. 2016) (holding the “aggregate

       sentence” for offenses that were a single episode of criminal conduct could not

       exceed maximum term of incarceration under the statute), trans. denied; Wood v.

       State, 988 N.E.2d 374, 379 (Ind. Ct. App. 2013) (holding “cumulative

       sentences” for five Class D felony convictions that were a single episode of

       criminal conduct could not exceed statutory maximum term of incarceration).

       Here, all of Yost’s convictions are Level 5 felony convictions for criminal




       4
           Criminal recklessness is not listed as a crime of violence. I.C. § 35-50-1-2(a).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020           Page 8 of 11
       recklessness. Therefore, the only question is whether Yost’s crimes were part of

       a “single episode of criminal conduct” for which his consecutive sentence must

       be limited to seven years.


[16]   An “episode of criminal conduct” is defined as “offenses or a connected series

       of offenses that are closely related in time, place, and circumstance.” I.C. § 35-

       50-1-2(b). See also Purdy v. State, 727 N.E.2d 1091, 1092 (Ind. Ct. App. 2000)

       (quotation and citation omitted) (stating a single episode of criminal conduct is

       “an occurrence or connected series of occurrences and developments which

       may be viewed as distinctive and apart although part of a larger or more

       comprehensive series”), trans. denied. For criminal actions to be considered a

       single episode of criminal conduct, it is not necessary that the victim of each

       action is the same. Harris v. State, 861 N.E.2d 1182, 1188 (Ind. 2007). Nor is it

       required that the alleged conduct was so closely related in time, place and

       circumstances “that a complete account of one charge cannot be related without

       referring to details of the other charge,” although that is a factor the court may

       consider. Id.


[17]   Both the Supreme Court and this court have held that criminal actions that

       were not “precisely simultaneous or contemporaneous” but took place only

       seconds or minutes apart were a single episode of criminal conduct. See Reed v.

       State, 856 N.E.2d 1189, 1200 (Ind. 2006) (holding rounds of gunshots that were

       fired a few seconds apart at two different officers in two different cars were a

       single episode); see also Harris, 861 N.E.2d at 1188 (holding sexual acts against

       two different victims that took place five minutes apart in the same location

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020   Page 9 of 11
       were a single episode of criminal conduct); Dimmit v. State, 25 N.E.3d 203, 219

       (Ind. Ct. App. 2015) (holding two batteries occurring during a bar fight within a

       few minutes of each other and against two different victims were a single

       episode), trans. denied; Henson v. State, 881 N.E.2d 36, 39 (Ind. Ct. App. 2008)

       (holding two burglaries of different garages in the same morning were a single

       episode of criminal conduct), trans. denied.5


[18]   Here, Yost fired multiple rounds of gunshots within minutes of each other. The

       rounds were fired at different people but from the same location and apparently

       for the same reason—i.e., Yost contended he was experiencing withdrawal

       symptoms because he had stopped taking his mental health medication. The

       multiple rounds of gunfire took place within a total period of twenty minutes,

       which is a relatively short period of time. See Purdy, 727 N.E.2d at 1092

       (holding defendant’s assault of girlfriend and subsequent acts of resisting arrest

       and battery of the police were a single episode of criminal conduct as they took

       place during “a relatively short period of time and all were related to his assault

       on [his girlfriend]”). The four rounds of gunfire were a “connected series of

       offenses that [were] closely related in time, place, and circumstance,” i.e., a

       single episode of criminal conduct.6 I.C. § 35-50-1-2(b). Therefore, the trial



       5
         We disagree with the State’s assertion that this case is closer to the facts of Williams v. State, 891 N.E.2d
       621, 631 (Ind. Ct. App. 2008), where the criminal acts took place a day apart.
       6
         We note that, although Yost’s acts were a single “episode of criminal conduct” for purposes of the
       consecutive sentencing statute, there was nevertheless a factual basis for the five counts of criminal
       recklessness to which Yost knowingly pled guilty in order to obtain the benefit of a sentence lower than that
       for attempted murder. And, while we do not address the merits of his convictions of those five counts, we do


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020                         Page 10 of 11
       court erred in imposing an aggregate sentence in excess of seven years. I.C. §

       35-50-1-2(d)(2); Daugherty, 52 N.E.3d at 895.



                                                 Conclusion
[19]   Because Yost’s challenge to his convictions cannot be brought on direct appeal

       given his guilty plea, we dismiss his appeal of his convictions without prejudice

       as to his ability to present his claim in a petition for post-conviction relief.

       However, we reverse Yost’s sentence and remand with instructions for the trial

       court to limit the aggregate term of imprisonment to not more than seven years

       per Indiana Code Section 35-50-1-2(c), (d)(2).


[20]   Dismissed in part, reversed and remanded in part.


       Crone, J., and Altice, J., concur.




       note that his sentence under the consecutive sentencing statute would be limited to seven years whether he
       was convicted of two Level 5 felony counts or five such counts. I.C. § 35-50-1-2(c), (d)(2).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020                   Page 11 of 11
