MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Dec 14 2017, 9:55 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brian A. Karle                                          Curtis T. Hill, Jr.
Lafayette, Indiana                                      Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Terrance L. Williams,                                   December 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1705-CR-1001
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Randy Williams,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D01-1604-F5-48



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017            Page 1 of 10
                                                 Case Summary
[1]   Terrance Williams appeals his convictions and four-year sentence for Level 5

      felony battery and Class A misdemeanor invasion of privacy. We affirm.


                                                         Issues
[2]   The issues before us are:


                 I.       whether the trial court improperly entered judgment of
                          conviction for a third count, Class A misdemeanor
                          domestic battery; and


                 II.      whether Williams’s sentence is inappropriate.


                                                          Facts
[3]   In 2016, Williams was in a romantic relationship with E.B. They lived together

      in Lafayette and had been dating for about three years. On March 30, 2016,

      E.B. had a doctor’s appointment for a pregnancy she and Williams had learned

      of about a week earlier.1 E.B.’s friend, Sierra James, took E.B. to the

      appointment while Williams stayed at the apartment. While E.B. was gone,

      Williams discovered a condom in her dresser, which angered him because he

      and E.B. did not use condoms.


[4]   When E.B. and James returned to the apartment, Williams confronted E.B.

      about the condom. The argument became physical, and Williams began



      1
          The baby apparently was born at the end of October 2016, and Williams does not deny that he is the father.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017          Page 2 of 10
      shoving E.B. He also hit her with the bedroom door while she was standing in

      the doorway and pushed her so that she fell backwards over a laundry basket,

      causing a small cut on her back. E.B. called the police and told an officer who

      arrived that Williams had been pushing her around and injured her lower back.

      After the officer observed the injury and talked to Williams, he placed Williams

      under arrest.


[5]   The State charged Williams with Count I, Level 5 felony battery resulting in

      bodily injury to a pregnant woman and Count II, Class A misdemeanor

      domestic battery. In conjunction with the filing of the charges, the trial court

      issued a no-contact order prohibiting Williams from having any direct or

      indirect contact with E.B. or James. However, while in jail awaiting trial,

      Williams twice called E.B., and those conversations were recorded.


[6]   On November 11, 2016, Williams called E.B. and repeatedly blamed her for his

      being in jail and facing possible prison time, saying among other things “I’m

      f***ed now” and “I hope you and Sierra are happy now.” Ex. 13. E.B., who

      was crying during most of the call, said, “Well first of all you shouldn’t even be

      putting your hands on a pregnant woman period! Stop blaming me for your

      f***ing actions.” Id. Williams continued berating E.B. for calling the police,

      allowing them to take pictures, and “pressing charges.” Id. He said that,

      according to his bunkmate, if she and James signed and delivered to the trial

      court and prosecutor an “affidavit of innocence” stating that he had never

      touched E.B., he could have his case dismissed. Id. He asked her to do this

      “ASAP” and threatened to end their relationship unless she did so. Id. On

      Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017   Page 3 of 10
      December 27, 2016, Williams again called E.B. He began by asking her where

      she was and who she was with. He then told E.B. that he had read in a

      discovery response that she wanted him to go to jail and said, “You pretty

      much just f***ed me.” Id. He talked about rejecting a proposed plea agreement

      and said, “I’m f***ed unless you and Sierra go to trial and say that I didn’t do

      s***.” Id. E.B. seemed upset at the prospect of Williams going to prison for

      several years but said it was unlikely James would change her testimony. E.B.

      and Williams’s baby was crying during this phone call, but Williams did not ask

      about or mention the baby.


[7]   Because of Williams’s contacting E.B. in violation of the no-contact order, the

      State thereafter filed a Count III, Class A misdemeanor invasion of privacy. A

      jury trial was held on March 7-8, 2017. James testified as to Williams’s battery

      of E.B. E.B., however, denied that Williams had battered her and recanted her

      original statements to police, and said that she had accidentally tripped and

      fallen over the laundry basket. The jury found Williams guilty of all three

      counts. The trial court then stated, “The Court accepts the verdicts and enters

      judgment of conviction as to the three (3) counts. The issue of merger will be

      dealt with at the time of sentencing . . . .” Tr. p. 130. Subsequently, the trial

      court entered a written jury trial order, stating in part, “The Court enters

      JUDGMENT OF CONVICTION on Counts I, II and III.” App. Vol. II p. 99.


[8]   The trial court held a sentencing hearing on April 7, 2017. During the hearing,

      the trial court stated that Count II “merges” into Count I and that it would not

      impose a sentence on that count. Tr. p. 148. In a written sentencing order, the

      Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017   Page 4 of 10
      trial court stated, “The Court finds that Count II merges into Count I, therefore

      the Court enters Judgment of Conviction on Counts I and III.” App. Vol. II p.

      102. The trial court imposed a sentence of three years for Level 5 felony battery

      and one year for Class A misdemeanor invasion of privacy, to be served

      consecutively for a total of four years. The trial court further ordered that only

      the three-year battery portion of the sentence would be served in the

      Department of Correction. Of that three years, the trial court ordered one year

      to be fully executed, one year to be served in community corrections, and one

      year to be suspended, and also that the invasion of privacy one-year term be

      suspended. Williams now appeals.


                                                  Analysis
                             I. Disposition of Domestic Battery Charge

[9]   Williams contends that convictions for both Level 5 felony battery and Class A

      misdemeanor domestic battery would violate double jeopardy principles. The

      State does not dispute that point, but argues there is no double jeopardy

      violation because the trial court did not enter judgment of conviction for the

      Class A misdemeanor charge. It is true, as Williams points out, that the

      “merger” of one conviction with another after a judgment of conviction has

      been entered, or the imposition of concurrent sentences for two offenses, does

      not solve a double jeopardy problem. Hines v. State, 30 N.E.3d 1216, 1221 (Ind.

      2015). However, “[w]here the court merges the lesser-included offense without

      imposing judgment, there is no need to remand on appeal to ‘vacate.’” Green v.

      State, 856 N.E.2d 703, 704 (Ind. 2006).

      Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017   Page 5 of 10
[10]   Here, the trial court did originally state, after the jury returned its verdict, that it

       was entering judgments of conviction for both Count I, Level 5 felony battery,

       and Count II, Class A misdemeanor domestic battery. At sentencing, however,

       the trial court imposed no sentence for Count II. Furthermore, in its written

       sentencing order the trial court clearly stated that it was not entering a judgment

       of conviction for that count. To the extent the trial court may originally have

       stated its intention to enter judgment of conviction on that count, its subsequent

       statements effectively vacated that judgment or negated that intention. There

       are no penal consequences attaching to the finding of guilty on Count II, and

       there is no need for us to remand for the trial court to take any further action

       with respect to that count.


                                                  II. Sentence

[11]   Williams also claims that his sentence is inappropriate under Indiana Appellate

       Rule 7(B) in light of the nature of the offenses and his character. Although Rule

       7(B) does not require us to be “extremely” deferential to a trial court’s

       sentencing decision, we still must give due consideration to that decision.

       Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. “Additionally, a defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.” Id.


[12]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived
       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017   Page 6 of 10
       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and myriad other factors that come to light in a

       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[13]   For Williams’s Level 5 felony conviction, he received an advisory term of three

       years, in the middle of the statutory one-to-six years range. See Ind. Code § 35-

       50-2-6(b). He received the maximum term for a Class A misdemeanor. See I.C.

       § 35-50-3-2. However, although the trial court ordered the sentences served

       consecutively, resulting in a total four-year term, the trial court was generous

       with respect to how that sentence would be served. Williams only has to spend

       one year incarcerated, one year in community corrections, and then two years

       suspended to probation. We will keep this in mind when evaluating the

       appropriateness of Williams’s sentence.


[14]   Williams contends that the nature of the offenses was not egregious. He notes

       that the bodily injury E.B. sustained was not substantial and that she was very

       early in her pregnancy. We can agree with Williams’s characterization of the

       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017   Page 7 of 10
       injury but not with his minimizing of the battery based on the early stage of

       E.B.’s pregnancy. There should be no serious doubt that battery of a pregnant

       woman could result in injury to her fetus as well, regardless of the stage of

       pregnancy. And, it is clear that Williams was aware of the pregnancy. As for

       Williams’s invasion of E.B.’s privacy, we find it to be highly egregious and

       inextricably intertwined with his battery conviction. Williams’s conduct is a

       precise reason no-contact orders are entered in cases such as this. He played on

       the emotions of a woman who had just given birth, daring to repeatedly blame

       her for his predicament and insisting that she recant her statements to police.

       Eventually, Williams was successful in emotionally browbeating E.B. into

       changing her story and testifying that she had lied in her earlier statements to

       police and when she said in the first jail phone call that Williams should not

       have put his hands on a pregnant woman.


[15]   As for Williams’s character, he was nineteen at the time of the offense and

       twenty at sentencing. His juvenile history began in 2013 at the age of sixteen,

       when he acquired two delinquency adjudications for what would be Class D

       felony theft. Thereafter, multiple modifications of Williams’s probation were

       filed for things such as testing positive for marijuana, failing to appear for drug

       screens, and failing to abide by house arrest rules. On four occasions, the

       modification motions were granted, and in 2014, Williams’s juvenile probation

       was terminated as unsuccessful. After committing these offenses in this case

       and while out on bond, Williams was charged with Class A misdemeanor

       possession of a synthetic drug; he was convicted of that offense before his trial


       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017   Page 8 of 10
       in this case. Williams attempts to downplay the significance of this criminal

       history, noting in part that it is for non-violent offenses. That is true, but the

       sheer number of offenses within a short period of time, along with his repeated

       violations of juvenile probation, reflect very poorly on his character.


[16]   Williams contends that he displayed good character by taking classes in jail to

       received his GED and that he received extensive support from his family at

       sentencing. He also claims that he has a “new perspective” on life after the

       birth of his child. Appellant’s Br. p. 11. This alleged “new perspective” was

       not on display in Williams’s calls to E.B. after the child’s birth. Rather,

       Williams was entirely self-interested, did not express any remorse, and was

       more interested in his own welfare than that of either E.B. or his child. In fact,

       although Williams at one point expressed sadness that he would not be present

       for his child’s first Thanksgiving and Christmas, he never once asked about how

       the baby was doing, even when she was crying during the second phone call. In

       sum, whatever good character is demonstrated by Williams’s pursuit of a GED

       and his extended family support is counterbalanced by his criminal history and

       the character displayed in his calls to E.B.


[17]   For Williams’s Level 5 felony battery of his girlfriend while she was pregnant

       with his child and his subsequent invasion of E.B.’s privacy, he received a

       sentence of one year fully executed, one year in community corrections, and

       two years suspended. That does not strike us as at all inappropriate in light of

       the nature of the offenses and Williams’s character.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017   Page 9 of 10
                                                 Conclusion
[18]   Because the trial court effectively vacated any conviction for Class A

       misdemeanor domestic battery and it did not impose a sentence for that count,

       we need not remand for the trial court to take any further action. Furthermore,

       Williams’s sentence is not inappropriate. We affirm.


[19]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017   Page 10 of 10
