Pursuant to Ind. Appellate Rule 65(D),

                                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                      May 22 2012, 8:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                CLERK
case.                                                         of the supreme court,
                                                              court of appeals and
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                              GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                ELLEN H. MEILAENDER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DWAYNE RHOINEY,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A02-1107-CR-650
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Charles A. Wiles, Senior Judge
                            Cause No. 49G03-0410-PC-182728


                                       May 22, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       Dwayne Rhoiney appeals the sentence the trial court imposed upon remand from

this Court. We affirm.

                                          ISSUE

       Rhoiney raises one issue, which we restate as: whether the trial court abused its

discretion in the course of resentencing him.

                         FACTS AND PROCEDURAL HISTORY

       The facts as stated in Rhoiney’s direct appeal are as follows:

              On the evening of September 18, 2004, Rhoiney and an unidentified
       companion drove to [Gary] Wemer’s house where Wemer and his cousin
       Charles Cook were unloading plywood. Cook, Rhoiney, and Rhoiney’s
       companion got into an argument over money Rhoiney believed Cook had
       stolen some months earlier. Rhoiney threatened to kill Cook. Rhoiney’s
       companion had a gun. Rhoiney threatened to kill Cook’s girlfriend Victoria
       Newland, and then Rhoiney and his companion left.
              Cook called Newland to warn her and tell her Wemer’s girlfriend,
       Alicha Walton, was coming to pick her up. When Walton started to drive
       away from Wemer’s house, she saw Rhoiney walking toward the house
       with a gun. Because her child was in the house, Walton flashed her
       headlights at Rhoiney to attract his attention. He walked over to her
       vehicle, pointed a gun at her, and threatened her. She told him Cook had
       returned to his own house and he left. Walton then went back inside and
       told Cook and Wemer that Rhoiney was on his way to Cook and Newland’s
       house. The men left for Newland’s house in separate vehicles and by
       separate routes.
              Newland was on the porch when Wemer arrived. Wemer got out of
       the car and told Newland to get in because he was taking her back to his
       house. Rhoiney and his companion pulled up as Newland reached
       Wemer’s vehicle. Rhoiney got out of the car with a gun and asked Wemer
       if he knew where the money was. Wemer said he did not. Rhoiney told
       Wemer to stop or he would shoot. Wemer stopped. Wemer and Rhoiney
       were face-to-face and about five or six feet apart. Newland testified:

              Some lights came up the road, and [Rhoiney] looked at Gary
              Wemer, and the trigger went off on the gun. And then he got

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              in the car. After he shot Gary, he turned around and looked at
              me and acted kind of frantic, got in the car and rushed off.

       (Tr. at 325.) Cook arrived as Rhoiney sped off. Wemer later died of a
       gunshot wound to the stomach. Newland identified Rhoiney as the person
       who shot Wemer.

Rhoiney v. State (Rhoiney I), No. 49A02-0602-CR-119, slip op. at 2-3 (Ind. Ct. App. Dec.

8, 2006), trans. denied.

       The State charged Rhoiney with murder, a felony, Ind. Code § 35-42-1-1 (2001);

criminal confinement, a Class B felony, Ind. Code § 35-42-3-3 (2002); and carrying a

handgun without a license, a Class A misdemeanor, Ind. Code § 35-47-2-1 (2004). The

jury found him guilty of all charges. The trial court sentenced Rhoiney to an aggregate

term of sixty-six years. Rhoiney appealed, challenging the sufficiency of the evidence

supporting his murder conviction. A panel of this Court affirmed the conviction. See

Rhoiney I, slip op. at 4.

       Next, Rhoiney filed a petition for post-conviction relief. The post-conviction

court denied Rhoiney’s petition after a hearing, and Rhoiney appealed. A panel of this

Court reversed the post-conviction court’s judgment, concluding that Rhoiney received

ineffective assistance of appellate counsel because counsel failed to challenge Rhoiney’s

sentence. See Rhoiney v. State (Rhoiney II), 940 N.E.2d 841, 848 (Ind. Ct. App. 2010),

trans. denied. This Court remanded to the trial court to resentence Rhoiney. See id.

       On remand, the trial court held a hearing. The trial court noted as an aggravating

factor that the case involved multiple victims. At the end of the hearing, the trial court

sentenced Rhoiney to fifty-five years for murder, six years for criminal confinement, and


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one year for carrying a handgun without a license. The trial court determined that the

murder and criminal confinement sentences would be served consecutively, and the

carrying a handgun sentence would be served concurrently, for an aggregate sentence of

sixty-one years. This appeal followed.

                             DISCUSSION AND DECISION

       Rhoiney argues that the trial court abused its discretion on remand by identifying

an improper aggravating factor and by sentencing him to consecutive sentences.

Sentencing decisions rest within the sound discretion of the trial court and are reviewed

on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (2007). 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. Id. A

trial court abuses its discretion when it: (1) fails to enter a sentencing statement; (2)

enters a sentencing statement that includes reasons that are unsupported by the record; (3)

enters a sentencing statement that omits reasons that are clearly supported by the record

and advanced for consideration; or (4) enters a sentencing statement that includes reasons

that are improper as a matter of law. Id. at 490-91.

       Rhoiney contends that the trial court should not have identified the existence of

multiple victims as an aggravating factor because the trial court was not allowed to find

an aggravating factor that had not been cited by the original sentencing court. We

disagree. In O’Connell v. State, 742 N.E.2d 943 (Ind. 2001), our Supreme Court reversed

O’Connell’s sentence because the sentencing order did not permit reasonable review of

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the sentence. Specifically, the trial court did not specify the aggravating factors that

justified consecutive sentences. Therefore, our Supreme Court determined that a new

sentencing order was needed. The Court stated:

       this Court occasionally remands criminal cases to trial courts for new
       sentencing orders. Unless this Court specifically directs otherwise, a trial
       court’s responsibility in that circumstance is to produce a new sentencing
       order that responds to the concerns this Court has raised. Depending upon
       the nature of those concerns, this responsibility may be discharged by the
       trial court (1) issuing a new sentencing order without taking any further
       action; (2) ordering additional briefing on the sentencing issue and then
       issuing a new order without holding a new sentencing hearing; or (3)
       ordering a new sentencing hearing at which additional factual submissions
       are either allowed or disallowed and then issuing a new order based on the
       presentations of the parties.

Id. at 952-53; see also Taylor v. State, 840 N.E.2d 324, 342 (Ind. 2006) (determining that

Taylor was entitled to post-conviction relief and remanding for resentencing without

limitation upon the trial court’s sentencing authority).

       In Rhoiney II, this Court remanded to the trial court for resentencing. 940 N.E.2d

at 848.   This Court did not place any limitations upon the trial court’s sentencing

authority or direct the trial court to proceed in any specific manner. Based upon our

Supreme Court’s discussion in O’Connell, we conclude that the trial court acted within its

discretion by holding a new sentencing hearing and by considering additional factual

submissions by the parties. Thus, the trial court did not abuse its discretion by citing the

existence of multiple victims as an aggravating factor.

       Rhoiney cites Neff v. State, 849 N.E.2d 556 (Ind. 2006), in support of his claim

that the trial court was barred from finding additional aggravating circumstances on

resentencing. In Neff, the State asked our Supreme Court to determine whether a panel of

                                              5
this Court erred by revising Neff’s sentence instead of remanding for a new sentencing

hearing after this Court determined that all of the aggravating factors cited by the trial

court were invalid except for Neff’s criminal history. Our Supreme Court noted that

there is no single determinative practice in deciding whether to remand a case to allow

the State to prove additional aggravators. Under the facts of that case, our Supreme

Court concluded that the State was not entitled to a second opportunity to prove

aggravating factors, and the Court of Appeals did not err by choosing to revise Neff’s

sentence. Our Supreme Court expressed a hope that its decision would “provide basic

guidelines when dealing with Blakely-related litigation.” Id. at 560 (referring to Blakely

v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)).

       By contrast, in Rhoiney II there is no indication that this Court considered revising

Rhoiney’s sentence rather than remanding for resentencing. Furthermore, Rhoiney did

not raise any claims under Blakely in Rhoiney II or in this appeal. Therefore, Neff is

distinguishable.

       Next, we must determine whether the trial court erred by imposing consecutive

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

aggravating circumstance. Frentz v. State, 875 N.E.2d 453, 470 (Ind. Ct. App. 2007),

trans. denied. As we have already noted, the trial court properly cited as an aggravating

factor that Rhoiney’s crimes affected multiple victims.       Therefore, the trial court’s

imposition of consecutive sentences was not an abuse of discretion. See Tyler v. State,

903 N.E.2d 463, 468 (Ind. 2009) (determining that the trial court’s imposition of



                                             6
consecutive sentences was justified because Tyler committed offenses against multiple

victims).

       Rhoiney claims that the trial court failed to weigh the aggravating factor of

multiple victims against the mitigating factors. A trial court has no obligation to weigh

aggravating and mitigating factors against each other when imposing a sentence.

Anglemeyer, 868 N.E.2d at 491. Thus, Rhoiney’s claim is without merit.

                                     CONCLUSION

       For the reasons stated above, we affirm the judgment of the trial court.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




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