MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 May 09 2017, 10:03 am

regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
P. Stephen Miller                                       Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana

                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert A. Walchle, Jr.,                                 May 9, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1612-CR-2833
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D04-1604-F5-105



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017             Page 1 of 9
                                          Case Summary
[1]   On December 7, 2015, Appellant-Defendant Robert A. Walchle, Jr. battered his

      wife, Christine Walchle. At the time, Walchle had previously been found guilty

      of battering Christine. On April 11, 2016, Appellee-Plaintiff the State of

      Indiana (“the State”) charged Walchle with one count each of Level 5 felony

      battery and Level 6 felony battery. Walchle subsequently pled guilty as

      charged. He was later sentenced to a term of five years.


[2]   On appeal, Walchle frames his argument as a sentence challenge, arguing that

      his five-year sentence is illegal because his actions did not amount to a Level 5

      felony at the time they were committed. Walchle’s arguments on appeal,

      however, are more appropriately framed as a challenge to his conviction for

      Level 5 felony battery. Given that the record clearly demonstrates that Walchle

      freely and voluntarily pled guilty to the Level 5 felony offense and the sentence

      imposed by the trial court is within the statutory limits for a Level 5 felony, we

      affirm.



                            Facts and Procedural History
[3]   On December 7, 2015, Walchle “put [his] hands on [his] wife in a manner that

      wasn’t proper[,]” touching her in rude, insolent, or angry manner which

      resulted in bodily injury to Christine. Tr. Vol. II, p. 21. Prior to December 7,

      2015, Walchle had been convicted of battering Christine on two separate




      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017   Page 2 of 9
      occasions. On April 11, 2016, Walchle was charged with one count of Level 5

      felony battery and one count of Level 6 felony domestic battery.


[4]   Walchle pled guilty as charged on October 12, 2016. During the guilty plea

      hearing, Walchle indicated that he understood that he was pleading guilty to

      both Level 5 felony battery and Level 6 felony domestic battery. Walchle also

      indicated that he understood that by pleading guilty, he would be found guilty

      of both charges and sentenced accordingly. Walchle further indicated that he

      understood the potential penalties which the trial court could impose in

      sentencing him. Walchle informed the court that his pleas of guilty were

      voluntary and made of his own free will. The trial court accepted Walche’s

      guilty pleas and found him guilty of one count of Level 5 felony battery and one

      count of Level 6 felony domestic battery. In doing so, the trial court stated the

      following:


              The Court now finds that the Defendant, Robert A. Walchle, Jr.,
              is 45 years of age, that he understands the nature of the charges
              against him to which he’s pled guilty, that he understands the
              possible sentences and fines thereunder, that his pleas were freely
              and voluntarily made, his pleas are accurate, and there’s a factual
              basis for pleas of guilty. The Court will accept the Defendant’s
              pleas of guilty and find him guilty as charged in count one and
              count two.


      Tr. Vol. II, pp. 23-24.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017   Page 3 of 9
[5]   The trial court conducted a sentencing hearing on November 18, 2016. At the

      conclusion of this hearing, the trial court vacated the Level 6 felony conviction

      and sentenced Walchle to an executed term of five years. This appeal follows.



                                Discussion and Decision
[6]   Walchle frames the issue on appeal as a sentence challenge. Specifically,

      Walchle argues that his sentence is illegal because his actions did not amount to

      a Level 5 felony at the time they were committed. Upon reviewing Walchle’s

      arguments, however, we conclude that his arguments are more appropriately

      framed as a challenge to his conviction for Level 5 felony battery.


[7]   It is undisputed that “[a] person who pleads guilty is not permitted to challenge

      the propriety of that conviction on direct appeal.” Collins v. State, 817 N.E.2d

      230, 231 (Ind. 2004). Walchle knowingly and voluntarily pled guilty to Level 5

      battery. In doing so, he indicated that he understood that he was pleading

      guilty to Level 5 felony battery; by pleading guilty, he would be found guilty

      and sentenced accordingly; and the potential penalties which the trial court

      could impose in sentencing him. The trial court accepted Walchle’s guilty plea,

      finding that it was made freely and voluntarily. Therefore, Walchle may not

      challenge the propriety of his conviction for Level 5 felony battery on appeal.


[8]   Furthermore, to the extent that Walchle argues that the trial court should not

      have sentenced him for the Level 5 felony because such crime did not exist

      under the version of the criminal code that was in effect in December of 2015


      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017   Page 4 of 9
       when Walchle battered Christine, Walchle’s argument is without merit. The

       version of Indiana Code section 35-42-2-1 which was in effect in December of

       2015 provides as follows: “The offense … is a Level 5 felony if one (1) or more

       of the following apply: … (4) The person has a previous conviction for battery

       against the same victim.” Walchle admits that he has two prior domestic

       battery convictions for battering Christine. Walchle fails, however, to cite to

       any compelling authority which would suggest that these convictions would not

       satisfy the requirements of Indiana Code section 35-42-2-1(f)(4).


[9]    In the instant matter, the trial court imposed a five-year executed sentence.

       This sentence falls within the statutory range for Level 5 felony convictions. See

       Ind. Code § 35-50-2-6(b) (providing that “[a] person who commits a Level 5

       felony (for a crime committed after June 30, 2014) shall be imprisoned for a

       fixed term of between one (1) and six (6) years”). Walchle makes not separate

       claim that the trial court abused its discretion in sentencing him or that his

       sentence is inappropriate. As such, to the extent that Walchle challenges his

       sentence, such challenge is waived for failure to make a cogent argument. See

       generally, Keller v. State, 987 N.E.2d 1099, 1121 n.11 (Ind. Ct. App. 2013)

       (providing that failure to make a cogent argument regarding whether the trial

       court abused its discretion in sentencing the defendant results in waiver).


[10]   The judgment of the trial court is affirmed.


       Najam, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017   Page 5 of 9
Riley, J., dissents with opinion.




Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017   Page 6 of 9
                                                     IN THE
            COURT OF APPEALS OF INDIANA

       Robert A. Walchle, Jr.,                                      Court of Appeals Case No.
                                                                    02A03-1612-CR-2833
       Appellant-Defendant,

                v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge dissenting


[11]   I respectfully dissent from the majority’s decision to affirm Walchle’s five year

       sentence pursuant to a Level 5 felony. Unlike the majority, I find that Walchle

       presented this court with a very cogent and meritorious argument.1




       1
        The State’s appellate brief fails to address the contentions raised by appellant’s argument pursuant to
       Appellate Rule 46(B)(2).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017                  Page 7 of 9
[12]   On December 7, 2015, Walchle intentionally touched his wife in a rude and

       angry manner, resulting in bodily injury. Based on this incident, the State

       charged Walchle on April 11, 2016, with Count I, battery, a Level 5 felony, and

       Count II, domestic battery, a Level 6 felony. On October 12, 2016, Walchle

       pled guilty to both Counts without the benefit of a written plea agreement.


[13]   Courts must generally sentence defendants under the statute in effect at the time

       the defendant committed the offense. Hooker v. State, 799 N.E. 2d 561, 575

       (Ind. Ct. App. 2003), trans. denied. On December 7, 2015, the battery statute in

       effect called for a Level 5 felony, when “(4) the person has a previous

       conviction for battery against the same victim.” Ind. Code § 35-42-2-1 (2014).

       A domestic battery under this statute was limited to a battery causing injury to

       one’s spouse, former or present. See I.C. § 35-42-2-1.3 (2014). If the domestic

       battery was a second unrelated offense under section 1.3 then the misdemeanor

       was enhanced to a Level 6 felony. The second unrelated offense of domestic

       battery, enhancing the crime to a Level 6 felony, applied regardless whether the

       victim of each battery was the same person or different as long as both victims

       were members of the same protected class. However, at the date of sentencing,

       both statutes in effect categorized the charges as Level 5 felonies.


[14]   In Williams v. State, 798 N.E.2d 457, 461 (Ind. Ct. App. 2003), this court

       addressed the general purpose behind the domestic battery statute. Williams

       noted that by differentiating battery from domestic battery, the legislature

       recognized a particular concern with the impact and costs of domestic battery as

       opposed to battery in general. “[W]hen the character of the relationship clearly

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017   Page 8 of 9
       warrants application of the domestic battery statute, . . . , a court need not

       undertake further analysis.” Id. In other words, once a defendant satisfies the

       elements of the domestic battery statute, including its enhancements, he cannot

       fall under the simple battery statute. There is no mixing and matching of the

       underlying convictions, as the majority appears to advocate in its footnote 1.


[15]   During the factual basis underlying his guilty plea, and as acknowledged by the

       majority in its Case Summary, Walchle admitted to battery to his “wife.” Slip

       op. p. 2. And, as again pointed out by the majority, “Walchle had previously

       been found guilty of battering [his wife.]” Slip op. p. 2. Accordingly, the

       domestic battery statute, as in effect at the time of the offense, clearly applied to

       Walchle and he should have been sentenced to a Level 6 felony. By sentencing

       Walchle to a Level 5 felony, as in effect at the time of sentencing, the trial court

       pronounced an illegal sentence. While I agree that counsel did not object to the

       sentence, it is well-settled that an “improper sentence constitutes fundamental

       error and cannot be ignored on review.” Groves v. State, 823 N.E.2d 1219, 1232

       (Ind. Ct. App. 2005). Accordingly, I would reverse the trial court’s sentence

       and remand for resentencing.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2833 | May 9, 2017   Page 9 of 9
