MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Oct 05 2018, 8:37 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jacquese Andrew Chaney,                                  October 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-62
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Marchal,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1608-F1-29908



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-62 | October 5, 2018                  Page 1 of 7
                                          Statement of the Case
[1]   Jacquese Andrew Chaney appeals the seventy-five-year sentence the trial court

      imposed after determining he was guilty of one count of rape and two counts of
                                                         1
      attempted rape, all Level 1 felonies, among other offenses. We affirm.


                                                             Issue
[2]   Chaney raises one issue, which we restate as: whether the trial court abused its

      discretion in imposing consecutive sentences for Chaney’s convictions of rape

      and attempted rape.


                                   Facts and Procedural History
[3]   Chaney was charged with several offenses, including attempted rape and

      robbery, arising from his attack on A.P. in Indianapolis on November 11, 2015.

      He was charged with additional offenses, including attempted rape, robbery and

      arson, arising from his attack on J.D. in Indianapolis on November 26, 2015.

      Finally, he was charged with numerous offenses, including rape and robbery,

      arising from his attack on H.A. in Indianapolis on November 29, 2015. In

      total, Chaney was charged with twenty-four offenses.


[4]   Chaney waived his right to a jury trial, opting to be tried by the court. The

      court entered a judgment of conviction for thirteen offenses, including one




      1
          Ind. Code §§ 35-42-4-1 (2014) (rape); 35-41-5-1 (2014) (attempt).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-62 | October 5, 2018   Page 2 of 7
count of rape and two counts of attempted rape. At sentencing, the court

identified aggravating and mitigating factors as follows:


        In determining an appropriate sentence, the Court has considered
        the evidence presented at trial, the information contained within
        the pre-sentence report, the written victim impact statement
        which I received, the testimony of the witnesses here today, and
        the arguments of counsel. Mr. Chaney, my comments are as
        much to you as it is to the victims and all the family members
        from each side who are here.


        I don’t expect everybody here to agree with my sentence, but I
        think it’s important for you all to know how I got there. This is
        not pulling numbers out of a hat, but it is also not an exact
        mathematical formula. The law says here are the ranges, here
        are the factors that I can consider to move those needles within
        the ranges. So there’s a bit of art to it. I would like to think that
        in the time I’ve been here doing these cases I’ve got it right. But
        again, you may disagree.


        The one significant factor which I find in aggravation and which
        really drives the Court’s sentence in this case is the fact that I’m
        not dealing with one victim. I am dealing with four, three of
        whom were sexually assaulted in a violent manner. That in and
        of itself justifies imposition of consecutive sentences in this case,
        and that’s what I’m going to do. Now, there are factors that are
        in the defendant’s favor. He does have mental health issues.
        He’s got a prior diagnosis for Schizophrenia and PTSD among
        others. He self-reports having hallucinations and delusions. I’ll
        also find that he has a history of substance abuse. The defense
        wants me to find his age, he was twenty at the time, to be a
        mitigating factor. I’ve got to say historically, I’ve kind of saved
        that for the teenagers, but for this argument, I’ll give you that
        point, Mr. Borland. I don’t think it affects what I’m going to do
        ultimately.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-62 | October 5, 2018   Page 3 of 7
              The criminal history can kind of cut either way. I hate to say
              this, but the fact that he’s only got two priors is something we
              don’t see often in this court. I usually get a laundry list of
              criminal history. One of them is a battery, and I have to be
              concerned about that because that’s an act of violence, even
              though it’s a misdemeanor. The other one, which is more
              concerning, is the fact that he’s got a level 3 armed robbery in this
              court for which he received an executed DOC sentence. So, I’ll
              put that one slightly in the aggravating category.


              I do also note that he declined to participate in the presentence
              report interview. I am not considering that one way or the other.
              He doesn’t have to. He doesn’t have to make a statement, and he
              didn’t. And I’m not going to hold that against him.


              In terms of weighing aggravating and mitigators [sic], I think the
              mitigators very slightly outweigh those aggravating factors. But
              again, I’m back to the multiple victim scenario, and I think I
              need to craft a sentence so that each of the three sexual assault
              victims knows this is my sentence for him. He doesn’t get a free
              victim here when it comes to rape, bottom line.


      Tr. Vol. III, pp. 151-53.


[5]   The court imposed a sentence that included, in relevant part, twenty-five years

      for the rape conviction and twenty-five years for each conviction of attempted

      rape. The court ordered Chaney to serve the sentences for rape and attempted

      rape consecutively, for an aggregate sentence of seventy-five years. This appeal

      followed.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-62 | October 5, 2018   Page 4 of 7
                                   Discussion and Decision
[6]   Chaney argues his sentence is erroneous because the trial court mistakenly

      believed it was required by law to impose consecutive sentences for the charges

      of rape and attempted rape.


[7]   The Indiana General Assembly has determined:


              A court may impose any sentence that is:


              (1) authorized by statute; and


              (2) permissible under the Constitution of the State of Indiana;
              regardless of the presence or absence of aggravating
              circumstances or mitigating circumstances.


      Ind. Code § 35-38-1-7.1(d) (2015). During sentencing, “if the court finds

      aggravating circumstances or mitigating circumstances, [the court shall issue] a

      statement of the court’s reasons for selecting the sentence that it imposes.” Ind.

      Code § 35-38-1-3 (1983).


[8]   When imposing a sentence for a felony offense, the trial court must issue “a

      reasonably detailed recitation of the trial court’s reasons for imposing a

      particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218 (2007). We review the sentence for an abuse of

      discretion. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. 2014). The trial court

      abuses its discretion by (1) failing to issue a sentencing statement, (2) finding

      aggravating or mitigating factors that are not supported by the record, (3)

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-62 | October 5, 2018   Page 5 of 7
       omitting factors that are clearly supported by the record and advanced for

       consideration, (4) or by finding factors that are improper as a matter of law.

       Anglemyer, 868 N.E.2d at 490-91.


[9]    “It is a well established principle that the fact of multiple crimes or victims

       constitutes a valid aggravating circumstance that a trial court may consider in

       imposing consecutive or enhanced sentences.” O’Connell v. State, 742 N.E.2d

       943, 952 (Ind. 2001) (emphasis added). Whether the counts involve one or

       multiple victims is highly relevant to the decision to impose consecutive

       sentences if for no other reason than to preserve potential deterrence of

       subsequent offenses. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).


[10]   Chaney claims the trial court wrongly believed it was required to impose

       consecutive sentences because the court stated, “I think I need to craft a

       sentence so that each of the three sexual assault victims knows this is my

       sentence for him. He doesn’t get a free victim here when it comes to rape,

       bottom line.” Tr. Vol. III, p. 153. We disagree with Chaney’s reading of the

       trial court’s statement. Based on our review of the trial court’s discussion of

       aggravating and mitigating factors, as set forth above, the trial court did not

       misunderstand the law. Instead, the court determined that the existence of

       multiple victims “justifies imposition of consecutive sentences.” Id. at 152. We

       conclude that the trial court’s use of the word “need” reflects a determination

       that consecutive sentences were necessary under the facts and circumstances of

       the case rather than a belief that mandatory sentences were legally required.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-62 | October 5, 2018   Page 6 of 7
       The trial court recognized that it had the discretion to impose consecutive

       sentences, and we conclude the court acted within its discretion.


                                                Conclusion
[11]   For the reasons stated above, we affirm the judgment of the trial court.


[12]   Affirmed.


[13]   May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-62 | October 5, 2018   Page 7 of 7
