Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                         Jun 09 2014, 9:14 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

HUGH N. TAYLOR                                     GREGORY F. ZOELLER
Hugh N. Taylor, P.C.                               Attorney General of Indiana
Auburn, Indiana
                                                   LARRY D. ALLEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BAGEERA TAYLOR, JR.,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 76A04-1307-CR-328
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE STEUBEN CIRCUIT COURT
                          The Honorable Allen N. Wheat, Judge
                             Cause No. 76C01-1206-FD-573



                                          June 9, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                       CASE SUMMARY

       Appellant-Defendant Bageera Taylor, Jr. was charged with and convicted of Class D

felony strangulation and Class D felony residential entry after he entered the apartment of

C.R., grabbed C.R. by the throat, and strangled C.R. Following a sentencing hearing, the

trial court sentenced Taylor to an aggregate term of six years with four years executed in the

Department of Correction (“DOC”) and two years suspended. On appeal, Taylor contends

that the trial court abused its discretion in sentencing him because his actions constituted a

single episode of criminal conduct. Appellee-Plaintiff the State of Indiana (the “State”)

acknowledges Taylor’s claim that his actions constituted a single episode of criminal conduct

may have merit. However, the State argues that the matter should be remanded to the trial

court for a determination on whether Taylor’s actions constituted a single episode of criminal

conduct in light of Taylor’s failure to raise the issue at sentencing. Because we find the

arguments raised by the State on appeal to be persuasive, we remand the instant matter to the

trial court for further proceedings.

                        FACTS AND PROCEDURAL HISTORY

       At approximately 2:00 a.m. on June 21, 2012, C.R. was lying in bed when she opened

her eyes and saw a man that she did not know in her bedroom. The man, who was

subsequently identified as Taylor, grabbed C.R. by the throat and strangled her before she

could scream. Taylor eventually released C.R.’s neck and ran out of her bedroom. Soon

thereafter, C.R. and her sister, R.R., found Taylor crouched in their kitchen. Taylor then ran

out of the backdoor of the apartment. C.R. was subsequently transported to the hospital

                                              2
where she was examined and treated for injuries to her neck.

       The next day, after returning home from the hospital, C.R. saw Taylor and recognized

him as the man who had strangled her. When Taylor saw C.R., he attempted to cover his

face and quickly entered another apartment that was located in the same apartment complex

where C.R. lived. R.R.’s boyfriend contacted 911. Upon arriving at the apartment complex,

police officers surrounded the apartment which Taylor had entered. Taylor eventually

emerged from the apartment and was arrested.

       On June 22, 2012, the State charged Taylor with Class D felony strangulation, Class D

felony residential entry, and Class A misdemeanor battery resulting in bodily injury. The

State subsequently dismissed the Class A misdemeanor battery charge. Following a jury

trial, Taylor was convicted of Class D felony strangulation and Class D felony residential

entry. On May 20, 2013, the trial court sentenced Taylor to an aggregate term of six years

with four years executed in the DOC and two years suspended. This appeal follows.

                             DISCUSSION AND DECISION

       Taylor contends that the trial court abused its discretion in sentencing him because his

actions constituted a single episode of criminal conduct and, as a result, his aggregate

sentence could not exceed four years. Indiana Code section 35-50-1-2(c) provides that

“except for crimes of violence, the total 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.” An “‘episode

                                              3
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). Further, “any period of a

suspended sentence must be included when calculating the maximum aggregate sentence

under Indiana Code [section] 35-50-1-2(c).” Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005).

       In the instant matter, the highest level of felony for which Taylor was convicted is

Class D felony. The advisory sentence for a Class C felony, the class of felony that is one

class higher than a Class D felony, is four years. See Ind. Code § 35-50-2-6. Thus, if

Taylor’s convictions constituted a single episode of criminal conduct, his aggregate sentence,

included the suspended portion, may not exceed four years.

       Taylor acknowledges on appeal that he did not argue that his actions constituted a

single episode of criminal conduct during the sentencing hearing conducted by the trial court.

The State concedes that Taylor’s contention that his actions constituted a single episode of

criminal conduct likely has merit, but argues that, because Taylor failed to raise this

contention below, the proper procedure is to remand the instant matter to the trial court for

further proceedings during which the trial court should consider any possible statutory

sentence limitations. We agree.

       In Wells v. State, 441 N.E.2d 458, 463 (Ind. 1982), the Indiana Supreme Court held

that “[e]rror can only be predicated on questions presented to and ruled upon by the trial

court.” Thus, because Taylor did not argue that his actions constituted a single episode of

criminal conduct that would effectively limit his aggregate sentence to no more than four

years during sentencing, we conclude that the proper course of action is to remand the instant

                                              4
matter to the trial court to allow the trial court the opportunity to examine Taylor’s claim that

pursuant to Indiana code section 35-50-1-2(c), his aggregate sentence may not exceed four

years. Accordingly, we reverse Taylor’s sentence and remand to the trial court for further

proceedings consistent with this memorandum decision.

       The judgment of the trial court is reversed and remanded for further proceedings.

RILEY, J., concurs.

ROBB, J., dissents with opinion.




                                               5
                             IN THE
                   COURT OF APPEALS OF INDIANA

BAGEERA TAYLOR, JR.,                        )
                                            )
       Appellant-Defendant,                 )
                                            )
           vs.                              )       No. 76A04-1307-CR-328
                                            )
STATE OF INDIANA,                           )
                                            )
       Appellee-Plaintiff.                  )


ROBB, Judge, dissenting

       The majority holds that because Taylor failed to raise to the trial court the issue of

whether his actions constituted a single episode of criminal conduct, this case should be

remanded for the trial court to make that determination and resentence Taylor if necessary. I

respectfully dissent because I believe that we may consider the fully developed record and

make the determination of whether Taylor’s offenses constituted an episode of criminal

conduct.

       Generally, sentencing decisions lie within the discretion of the trial court and will be

reversed only for an abuse of that discretion. Baysinger v. State, 854 N.E.2d 1211, 1214

(Ind. Ct. App. 2006), trans. denied. However, a trial court’s sentencing authority is limited to

that expressly granted by statute. Wilson v. State, 5 N.E.3d 759, 762 (Ind. 2014). Thus,

although the trial court is authorized by Indiana Code section 35-50-1-2 to determine whether

multiple sentences should be served concurrently or consecutively, it is also limited by that


                                                6
statute in its authority to impose consecutive sentences if the convictions are not crimes of

violence and the convictions “aris[e] out of an episode of criminal conduct . . . .” Ind. Code §

35-50-1-2(c). When a trial court uses its authority under this section to order a defendant to

serve consecutive sentences, it inherently must do so within the limitations of that authority.

Accordingly, Taylor did not need to raise the issue of whether his offenses were committed

as part of an episode of criminal conduct at sentencing because the trial court was already

aware of its obligation to consider the issue and had all the facts before it that were required

to make that determination.1 In other words, in ordering consecutive sentences totaling six

years, the trial court implicitly determined that Taylor’s crimes were not committed as part of

a single episode of criminal conduct. I believe we can review whether the trial court abused

its discretion in so determining.

        There is no dispute that Taylor’s crimes were not crimes of violence as defined by

statute. See Ind. Code § 35-50-1-2(a); Brief of Appellee at 5. The question then is whether

they were committed as part of a single episode of criminal conduct. An “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). In determining whether offenses are

sufficiently related, we have emphasized the timing of the offenses and whether they were

committed simultaneously or contemporaneously. Gootee v. State, 942 N.E.2d 111, 114

(Ind. Ct. App. 2011). We have also considered whether the conduct “is so closely related in



        1
           I do not disagree with the general proposition stated by the majority on page 4 that there are
questions that must first be presented to the trial court; however, Wells was concerned with an evidentiary
                                                    7
time, place, and circumstance that a complete account of one charge cannot be related

without referring to the details of the other charge.” Id. (citing Reed v. State, 856 N.E.2d

1096, 1098 (Ind. 2006)). Here, Taylor knowingly or intentionally broke into and entered

C.R.’s home in the early morning hours while C.R. was in bed, grabbed her by the throat, and

strangled her. The events were nearly simultaneous and relating the facts of the strangulation

charge require relating the details of how Taylor came to be in her bedroom. Therefore,

Taylor’s crimes constituted an episode of criminal conduct and the aggregate of his sentences

for those crimes cannot exceed four years. The trial court abused its discretion in sentencing

Taylor to a greater term. I agree with the majority that this case should be remanded to the

trial court, but I would remand only with instructions that the trial court impose a sentence

within the statutory limitations of Indiana Code section 35-50-1-2(c).




issue, not a statutory one, and I do not believe it supports that proposition in this particular circumstance. See
slip op. at 4.
                                                        8
