                                                                                FILED
                                                                           Apr 06 2017, 10:30 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Bruce W. Graham                                            Curtis T. Hill, Jr.
Graham Law Firm P.C.                                       Attorney General of Indiana
Lafayette, Indiana
                                                           Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jacob R. Lumbley,                                          April 6, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A02-1604-CR-798
        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           79D02-1411-F3-3



Brown, Judge.




Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017                             Page 1 of 15
[1]   Jacob R. Lumbley appeals his convictions and sentence for conspiracy to

      commit robbery as a level 5 felony, robbery as a level 5 felony, and two counts

      of criminal confinement as level 3 felonies, enhanced by the use of a firearm.

      Lumbley raises three issues which we revise and restate as:


        I.    Whether the trial court erred by enhancing the sentences for his two
              criminal confinement convictions based upon his use of a firearm;

       II.    Whether the trial court erred in ordering that the enhanced sentence for
              each criminal confinement conviction be served consecutive to each
              other; and

      III.    Whether double jeopardy prohibits his convictions for conspiracy to
              commit robbery and robbery.

      We affirm.


                                        Facts and Procedural History

[2]   During October and November 2014, Lumbley and Miguel Garcia agreed to

      commit robbery. Lumbley obtained sweatshirts and masks to conceal their

      identities and a gun. On November 1, 2014, Lumbley and others took property

      including U.S. currency and merchandise from a Speedway in Tippecanoe

      County. Lumbley took property from the clerk, Michael Reynolds, by putting

      him in fear by pointing a Ruger handgun and demanding property. Lumbley

      confined Reynolds without his consent by using the deadly weapon. Lumbley

      pointed it and put it close to the clerk’s head and face. He also took Reynolds’

      cellphone so he would not call the police and shared in the proceeds of the

      robbery.




      Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 2 of 15
[3]   On November 5, 2014, Lumbley, Garcia, and Tiffany Mounts were together.

      Lumbley took property, U.S. currency, merchandise, and cellphones from Josh

      Moore and Megan Vessels, clerks at a Village Pantry, by threatening to use

      force or putting them in fear. Lumbley also took property of Village Pantry.

      He possessed a shotgun and confined Moore by “using a firearm and pointing

      the firearm at him . . . .” Transcript at 48. Specifically, he elevated the gun and

      pointed it at both Moore and Vessels. Lumbley also confined Vessels.


[4]   On November 12, 2014, the State charged Lumbley with: Count I, conspiracy

      to commit robbery as a level 3 felony; Count II, robbery as a level 3 felony;

      Count III, criminal confinement as a level 3 felony; Count IV, theft as a class A

      misdemeanor; Count V, theft as a class A misdemeanor; Count VI, carrying a

      handgun without a license as a class A misdemeanor; Count VII robbery as a

      level 3 felony; Count VIII, criminal confinement as a level 3 felony; Count IX,

      criminal confinement as a level 3 felony; Count X, theft as a class A

      misdemeanor; Count XI, theft as a class A misdemeanor; and Count XII,

      carrying a handgun while having a prior felony conviction as a level 5 felony.

      On December 4, 2014, the State added the following charges: Count XIII,

      unlawful use of a firearm in the commission of criminal confinement; and

      Count XIV, unlawful use of a firearm in the commission of criminal

      confinement. On December 10, 2014, the State filed amendments to the

      charging information.


[5]   On July 28, 2015, Lumbley filed a motion to suppress, and the court denied the

      motion on August 12, 2015. On September 1, 2015, the day of Lumbley’s

      Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 3 of 15
      scheduled trial, he pled guilty as charged. He admitted that he had been

      convicted of a felony within the past fifteen years and agreed that he knowingly

      or intentionally used a firearm in the commission of the criminal confinements

      at the Speedway and Village Pantry. Specifically, Lumbley’s counsel asked him

      if he confined Reynolds “by using that deadly weapon and not allowing him to

      leave, correct?” Id. at 43-44. Lumbley answered: “Correct.” Id. at 44.

      Lumbley’s counsel asked him if he confined Moore “by using a firearm and

      pointing the firearm at him, and not allowing him to move freely or leave,

      correct?” Id. at 48. Lumbley answered: “Yes.” Id. On cross-examination by

      the prosecutor, Lumbley admitted that he took a Ruger handgun into the

      Speedway and pointed it at and put it close to the clerk’s head and face. The

      prosecutor asked Lumbley: “And so, and so you not only possessed but you

      used that, correct?” Id. at 56. Lumbley answered: “Yes.” Id. He also admitted

      that he carried a shotgun into the Village Pantry, elevated it, and pointed it at

      the clerks.


[6]   That same day, the court entered an order titled “GUILTY PLEA ORDER

      (Without Plea Agreement).” Appellant’s Appendix III at 142. The court found

      Lumbley guilty of: amended Count I, conspiracy to commit robbery as a level 3

      felony; Count II, robbery as a level 3 felony; Count III, criminal confinement as

      a level 3 felony; Count IV, theft as a class A misdemeanor; Count V theft as a

      class A misdemeanor; Count VI, carrying a handgun without a license as a class

      A misdemeanor; amended Count VII, robbery as a level 3 felony; amended

      Count VIII, criminal confinement as a level 3 felony; amended Count IX,


      Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 4 of 15
      criminal confinement as a level 3 felony; amended Count X, theft as a class A

      misdemeanor; amended Count XI, theft as a class A misdemeanor; Count XII,

      carrying a handgun while having a prior felony conviction as a level 5 felony;

      Count XIII, unlawful use of a firearm as a sentencing enhancement; and Count

      XIV, unlawful use of a firearm as a sentencing enhancement.


[7]   On March 28, 2016, for the crimes related to the Speedway gas station, the

      court sentenced Lumbley to five years for amended Count I, conspiracy to

      commit robbery reduced to a level 5 felony, five years for Count II, robbery

      reduced to a level 5 felony, ten years for Count III, criminal confinement as a

      level 3 felony, one year for Count V, theft as a class A misdemeanor, and five

      years for Count XII, carrying a handgun while having a prior felony conviction

      as a level 5 felony. The court ordered that Lumbley be sentenced to five years

      as charged in Count XIII, a sentencing enhancement, to run consecutive to

      Count III. It ordered that Counts I, II, V, and XII run concurrent with Count

      III for a total executed sentence of fifteen years for the crimes related to the

      Speedway gas station. It ordered that Count IV, theft as a class A

      misdemeanor, merged into Count II, that Count VI, carrying a handgun

      without a license, merged into Count XII, and it vacated the previously entered

      judgments of conviction for Counts IV and VI.


[8]   For the crimes involving the Village Pantry gas station, the court sentenced

      Lumbley to five years for amended Count VII, robbery reduced to a level 5

      felony, ten years for amended Count VIII, criminal confinement as a level 3

      felony, ten years for amended Count IX, criminal confinement as a level 3

      Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017    Page 5 of 15
       felony, one year for amended Count XI, theft as a class A misdemeanor, and

       ten years for Count XIV, unlawful use of a firearm, a sentencing enhancement,

       to be served consecutive to Count VIII. The court ordered that amended

       Counts VII, IX, and XI run concurrent with amended Count VIII for a total

       executed sentence of twenty years for crimes related to the Village Pantry gas

       station. It ordered that amended Count X, theft as a class A misdemeanor,

       merged into Count VII, and it vacated the previously entered judgment of

       conviction for Count X.


[9]    The court ordered that Count III and amended Count VIII run consecutive to

       each other for a total executed sentence of thirty-five years in the Department of

       Correction. It cited the seriousness of the offenses and multiple victims as the

       reasons for the consecutive sentences.


                                                     Discussion

                                                            I.


[10]   The first issue is whether the trial court erred by enhancing the sentences for

       Lumbley’s two criminal confinement convictions based upon his use of a

       firearm. Lumbley argues that the trial court abused its discretion in imposing

       sentencing enhancements for use of a firearm. He does not dispute that he

       pointed the firearm at victims and also placed the firearm in proximity to their

       bodies, but he asserts that he did not “use” the firearm as contemplated by the

       sentencing enhancement because the weapon was not discharged and there was




       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 6 of 15
       no attempt to do so. The State argues that Lumbley cannot raise his challenge

       to the two firearm enhancements in this direct appeal from his guilty plea.


[11]   To the extent Lumbley argues that he did not “use” the firearm as contemplated

       by the sentencing enhancement, he essentially challenges the factual basis for

       his guilty plea to the sentencing enhancements, and we conclude that his

       argument is not properly before us. See Robey v. State, 7 N.E.3d 371, 383-384

       (Ind. Ct. App. 2014) (citing Tumulty v. State, 666 N.E.2d 394 (Ind. 1996), and

       holding that if the defendant wished to challenge the factual basis underlying

       his admission to being an habitual offender, he would have to do so in a

       petition for post-conviction relief), trans. denied; Stanley v. State, 849 N.E.2d 626,

       630 (Ind. Ct. App. 2006) (observing that status as an habitual offender calls for

       an enhancement of a sentence, that the defendant’s admission to being an

       habitual offender was the equivalent of a guilty plea in which he assented to all

       of the elements of the habitual offender charge, holding that “[b]ecause [the

       defendant’s] argument concerns the habitual offender determination, as

       opposed to the sentence imposed upon that determination, it is not properly

       before us and we cannot, therefore, resolve it on its merits,” and dismissing the

       defendant’s guilty plea without prejudice to his right to raise the issue in a

       subsequent post-conviction proceeding, if he so chooses); see also Kling v. State,

       837 N.E.2d 502, 504 (Ind. 2005) (holding that a person who pleads guilty

       cannot challenge the conviction by means of direct appeal but only through a

       petition for post-conviction relief; one of the things a person gives up by

       pleading guilty is the right to a direct appeal) (citing Tumulty, 666 N.E.2d 394).


       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017     Page 7 of 15
                                                           II.


[12]   The next issue is whether the trial court erred in ordering that Lumbley’s

       enhanced sentences for his criminal confinement convictions be served

       consecutive to each other. Lumbley contends that the trial court erred by

       imposing consecutive sentencing enhancements pursuant to Ind. Code § 35-50-

       2-11, and that absent specific statutory authority, the sentencing enhancements

       for use of a firearm cannot be run consecutively, just as habitual offender

       enhancements cannot.


[13]   The State argues that, because Indiana jurisprudence allows for consecutive

       sentences where there are multiple victims, the fact that the legislature

       promulgated the firearm enhancement in light of this jurisprudence implies that

       it authorized consecutive firearm enhancements where multiple victims were

       affected. It also argues that the firearm enhancement is qualitatively different

       from the habitual offender and habitual substance offender enhancements

       because it is an additional penalty imposed for using a firearm and not a

       recidivist enhancement that is punishing a defendant for past misbehavior for

       which he has already received a punishment.


[14]   While a defendant cannot challenge a conviction following a guilty plea on

       direct appeal, a defendant is entitled to contest on direct appeal the merits of a

       trial court’s sentencing discretion. See Mapp v. State, 770 N.E.2d 332, 334 n.1

       (Ind. 2002). We note that the sentences which were enhanced dealt with the

       separate offenses. Specifically, Count III, criminal confinement while armed


       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017     Page 8 of 15
       with a deadly weapon as a level 3 felony, occurred at the Speedway on

       November 1, 2014, and Count VIII, criminal confinement with a deadly

       weapon as a level 3 felony, occurred at the Village Pantry on November 5,

       2014. At the time of the offenses, Ind. Code § 35-50-1-2(e) provided: “If the

       factfinder determines under IC 35-50-2-11 that a person used a firearm in the

       commission of the offense for which the person was convicted, the term of

       imprisonment for the underlying offense and the additional term of

       imprisonment imposed under IC 35-50-2-11 must be served consecutively.” 1


[15]   Lumbley cites Breaston v. State, 907 N.E.2d 992 (Ind. 2009), in which the

       Indiana Supreme Court addressed whether it was proper for the defendant to

       receive consecutive habitual offender enhancements following unrelated trials.

       The Court observed that Ind. Code § 35-50-1-2 provides that a court has

       discretion to determine whether terms of imprisonment are to be served

       concurrently or consecutively. 907 N.E.2d at 994. It noted that it had

       previously discussed the policies that distinguish the power to impose

       consecutive sentences and the power to enhance sentences based on a finding of

       habitual offender status as follows:

               The provision appears unlimited in scope, applying to the class of
               all sentences. Yet the power to order consecutive sentences is
               subject to the rule of rationality and the limitations in the
               constitution. The sentence enhanced under the habitual offender




       1
        Subsequently amended by Pub. L. No. 238-2015, § 16 (eff. July 1, 2015); Pub. L. No. 13-2016, § 18 (eff.
       July 1, 2016).

       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017                         Page 9 of 15
               statute is a special statutory one. It can have the dramatic effect
               of increasing a single sentence from two years to half a lifetime.
               A basis for such a gross impact is the existence of the two prior
               unrelated felony convictions and sentences, and the dangerous
               nature of the offender which they bespeak. A basis for the gross
               impact which consecutive sentences may have is, by contrast, the
               moral principle that each separate and distinct criminal act
               deserves a separately experienced punishment. Furthermore the
               habitual offender status determination carries a more binding
               effect upon the sentence tha[n] does the determination of
               multiple criminal acts. Therefore, the purpose and process of the
               felony habitual offender statute has special and distinct
               dimensions.


               In sum, it is apparent, from a study of the present statutes, that
               such statutes are silent on the question of whether courts have the
               authority to require habitual offender sentences to run
               consecutively, when engaged in the process of meting out several
               sentences. In the absence of express statutory authorization for
               such a tacking of habitual offender sentences, there is none.


       907 N.E.2d at 994 (quoting Starks v. State, 523 N.E.2d 735, 736-737 (Ind. 1988)).


[16]   The Court further observed that the relevant portions of the consecutive

       sentencing statute had remained unchanged in the more than two decades since

       Starks and stare decisis and legislative acquiescence supported the result that a

       trial court cannot order consecutive habitual offender sentences. Id. at 994-995.

       The Court noted that “[i]n Starks, we recognized that the ‘special and distinct

       dimensions’ of the habitual offender enhancement precludes a trial court from

       ordering habitual offender sentences to run consecutively.” Id. at 995. It

       concluded that the trial court erred when it ordered the habitual offender


       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 10 of 15
       sentences to run consecutively. Id. In Starks, the Court stated that it had

       previously “sanctioned the process of enhancing two sentences for aggravating

       circumstances and then requiring the two sentences to be served consecutively.”

       523 N.E.2d at 736 (citing Smith v. State, 474 N.E.2d 71 (Ind. 1985)).


[17]   We conclude that the firearm enhancements do not have the special and

       distinct dimensions of habitual offender enhancements and are similar to the

       finding of aggravating circumstances for separate offenses. We further observe

       that Ind. Code § 35-50-2-11 was amended by Pub. L. No. 238-2015, § 18,

       effective July 1, 2015, in part to designate the former subsection (e) as

       subsection (g) and to add subsection (i) which states: “A person may not be

       sentenced under subsections (g) and (h) for offenses, felonies, and

       misdemeanors comprising a single episode of criminal conduct.” The addition

       of subsection (i) provides further support for the conclusion that the legislature

       intended for an enhancement under the statute to support consecutive sentences

       and that subsection (i) is intended to prevent the imposition of consecutive

       sentences when a single episode of criminal conduct is present. We conclude

       that the trial court did not abuse its discretion by enhancing the two separate

       criminal confinement convictions and ordering that they be served consecutive

       to each other.


                                                          III.


[18]   The next issue is whether double jeopardy prohibits Lumbley’s convictions for

       conspiracy to commit robbery and robbery. Lumbley appears to argue that his


       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017     Page 11 of 15
       convictions on Count I, conspiracy to commit robbery as a level 5 felony,

       Count II, robbery as a level 5 felony, and Count VII, robbery as a level 5 felony,

       violate the Double Jeopardy Clause of the Indiana Constitution, which

       provides: “No person shall be put in jeopardy twice for the same offense.” IND.

       CONST. art. 1, § 14. He asserts that Count I does nothing more than summarize

       the events of the robberies which occurred at the Speedway gas station on

       November 1, 2014, and the Village Pantry on November 5, 2014. He concedes

       that the elements of conspiracy to commit robbery and robbery are not the same

       as each requires proof of facts which the other does not but argues that the

       actual evidence which supports his conviction for Count I, conspiracy to

       commit robbery, is identical to the evidence used to establish each robbery. The

       State argues that the conspiracy was completed before the robbery and the

       actual facts comprising the essential elements of the conspiracy were completed

       before all of the actual facts comprising the essential elements of the robbery

       were completed or even begun.


[19]   We again note that a person who pleads guilty cannot challenge the conviction

       by means of direct appeal but only through a petition for post-conviction relief.

       See Kling, 837 N.E.2d at 504. In Mapp, the Indiana Supreme Court observed

       that the defendant contended that he was charged twice for essentially the same

       criminal conduct and that the State contended there was evidence to show two

       separate charges were sustainable. 770 N.E.2d at 334. The Court observed that

       this was the kind of factual dispute that a post-conviction trial court is suited to

       resolving and that an appellate court is not. Id. It stated that because the State


       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 12 of 15
       did not argue that the appeal should be dismissed as improper, it elected to

       address the claim on the merits. Id. Similarly, here, the State makes no

       argument that Lumbley’s appeal should be dismissed with respect to his double

       jeopardy claim. Thus, in light of Mapp, we elect to address the merits of

       Lumbley’s claim.


[20]   “Indiana’s Double Jeopardy Clause . . . prevent[s] the State from being able to

       proceed against a person twice for the same criminal transgression.” Hopkins v.

       State, 759 N.E.2d 633, 639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d

       32, 49 (In d. 1999)). The Indiana Supreme Court has held that “two or more

       offenses are the ‘same offense’ in violation of Article I, Section 14 of the

       Indiana Constitution, if, with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense.” Richardson, 717 N.E.2d at 49. In applying the actual

       evidence test, a defendant must demonstrate and a reviewing court must

       conclude that there is a reasonable possibility that the evidentiary facts used by

       the factfinder to establish the essential elements of an offense for which the

       defendant was convicted or acquitted may also have been used to establish all

       the essential elements of a second challenged offense. Hines v. State, 30 N.E.3d

       1216, 1222 (Ind. 2015). The Indiana Supreme Court has held that “reasonable

       possibility” requires “substantially more than a logical possibility.” Lee v. State,

       892 N.E.2d 1231, 1236 (Ind. 2008). The existence of a reasonable possibility

       turns on a practical assessment of whether the fact finder may have latched on


       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 13 of 15
       to exactly the same facts for both convictions. Garrett v. State, 992 N.E.2d 710,

       720 (Ind. 2013). Generally, we evaluate the evidence from the jury’s

       perspective and may consider the charging information, jury instructions, and

       arguments of counsel. Id.


[21]   The amended charging information for Count I alleged:

               During October and November, 2014, in Tippecanoe County,
               State of Indiana, Miguel Garcia, Jacob Rufus Lumbley, Tiffany
               Dawn Mounts and Aaron David Arnold did, with the intent to
               commit Robbery, agree to commit the offense of Robbery, and
               one or more of the following overt acts were performed in
               furtherance of said agreement, to wit: On one or more occasions,
               Garcia and Lumbley went to businesses while armed with deadly
               weapons; on one or more occasions, Garcia, Lumbley, and/or
               Mounts obtained and wore hooded sweatshirts and masks to
               conceal their identities when they entered businesses they were
               robbing; on one occasion Arnold provided a shotgun for use in
               committing a robbery; on one occasion Arnold acted as a lookout
               during the robbery; on one or more occasions, Garcia, Lumbley
               and/or Mounts took property from said businesses; on one or
               more occasions, Garcia or Lumbley would take or damage
               phones to prevent victims from calling police; on one or more
               occasions, Garcia, Lumbley, and/or Mounts would share in the
               proceeds of said robberies; further, said offenses were committed
               while armed with a deadly weapon, to wit: firearms and/or
               knives.


       Appellant’s Appendix Volume II at 70. Thus, the charging information

       included the overt act of obtaining hooded sweatshirts and masks prior to the

       actual robberies. Further, at the hearing, Lumbley testified that he agreed with

       others to commit the offense of robbery, that one or more overt acts were

       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 14 of 15
       performed in furtherance of the agreement, that he obtained sweatshirts and

       masks to conceal their identities, that he obtained a gun, and that Arnold

       provided him with the shotgun.


[22]   The offenses of conspiracy and the robberies could have been established by

       “separate and distinct facts.” Richardson, 717 N.E.2d at 53. To find a double

       jeopardy violation, we must conclude there is a “reasonably possibility” the

       facts used to establish the essential elements of one offense may also have been

       used to establish the essential elements of a second offense. Garrett, 992 N.E.2d

       at 719. Since a “reasonable possibility” requires “substantially more than a

       logical possibility,” Lee, 892 N.E.2d at 1236, we cannot conclude Lumbley’s

       convictions violate double jeopardy. See Kunberger v. State, 46 N.E.3d 966, 972

       (Ind. Ct. App. 2015) (addressing a defendant’s double jeopardy claim following

       a guilty plea and holding that we were left with no basis on which to conclude

       there was a double jeopardy violation under the actual evidence test).


                                                     Conclusion

[23]   For the foregoing reasons, we affirm Lumbley’s convictions and sentence.


[24]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1604-CR-798 | April 6, 2017   Page 15 of 15
