MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                           FILED
Memorandum Decision shall not be regarded as                     Apr 17 2017, 5:57 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                  CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
collateral estoppel, or the law of the case.                           and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                  Curtis T. Hill, Jr.
Fort Wayne, Indiana                                    Attorney General of Indiana
                                                       Tyler G. Banks
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Chad M. Sutton,                                            April 17, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           02A03-1611-CR-2638

        v.                                                 Appeal from the Allen Superior
                                                           Court
                                                           The Honorable Frances C. Gull,
State of Indiana,                                          Judge
Appellee-Plaintiff                                         Trial Court Cause No.
                                                           02D05-1605-F6-567




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2638 | April 17, 2017     Page 1 of 9
                                          Case Summary
[1]   In April of 2016, Appellant-Defendant Chad Sutton appeared uninvited at the

      home of Brigitte O’Connell, with whom he had been romantically involved.

      Sutton stayed in O’Connell’s house for over two hours despite repeated requests

      to leave and the fact that there were valid protective and no-contact orders in

      place. The State charged Sutton with two counts of Level 6 felony invasion of

      privacy, one each for violating the protective and no-contact orders. Sutton was

      found guilty as charged, and the trial court sentenced him to two and one-half

      years of incarceration for each conviction, to be served concurrently. Sutton

      contends that his two convictions violate Indiana constitutional prohibitions

      against double jeopardy and that his sentence is inappropriately harsh. Because

      we agree with Sutton’s first argument but not his second, we reverse in part,

      remand with instructions to vacate invasion of privacy count II and affirm his

      two-and-one-half-year sentence.



                            Facts and Procedural History
[2]   As of early 2016, Sutton and O’Connell had been in a relationship for over

      seven years and had a daughter together. On January 5, 2016, O’Connell

      petitioned for an ex parte protective order, which was provisionally granted that

      day. On January 28, 2016, the protective order was made permanent after a

      hearing that Sutton attended. Meanwhile, on January 6, 2016, Sutton pled

      guilty to domestic battery of O’Connell. A no-contact order was issued

      pursuant to Sutton’s guilty plea. On January 27, 2016, Sutton was charged

      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2638 | April 17, 2017   Page 2 of 9
      with a single count of invasion of privacy for violating the protective and no-

      contact orders. On March 5, 2016, Sutton pled guilty to invasion of privacy

      and another no-contact order was issued.


[3]   On April 5, 2016, O’Connell was asleep in her Allen County house while her

      children watched cartoons in the living room. At approximately 8:00 a.m.,

      O’Connell’s son woke her and told her that Sutton was in the house.

      O’Connell found Sutton standing in her living room and told the children to go

      to another room. When O’Connell asked Sutton what he was doing in her

      house, Sutton claimed that the answer to a math problem that O’Connell had

      posted on Facebook was her address, which he took as an invitation to visit.

      O’Connell believed that Sutton was “high[,]” and he admitted that he had taken

      methamphetamine the day before. Tr. p. 33.


[4]   O’Connell did not call the police because her telephone was in her bedroom

      and she feared Sutton’s reaction “to anything that [she] did.” Tr. p. 34. Sutton

      “went on for some time about the people trying to get to him through his phone

      and that he believed some stripper was both a spy for the police and

      [O’Connell’s] lesbian lover[.]” Tr. p. 34. O’Connell did not, in fact, know the

      woman Sutton was speaking of. O’Connell described Sutton as “very tense

      [and] very paranoid [and] was just upset about a lot of things that weren’t even

      real.” Tr. p. 35. At least a dozen times, O’Connell told Sutton that he needed

      to leave, and while Sutton would begin to leave, he would return and begin

      talking again.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2638 | April 17, 2017   Page 3 of 9
[5]   After Sutton had been in O’Connell’s house for approximately two hours, he

      began pacing back in forth in front of the fireplace, describing the knife he was

      carrying, and telling O’Connell about how he was going to stab and kill her

      boyfriend and her boyfriend’s father, Robert Bowers. A few minutes later,

      Bowers happened to pull into the driveway. O’Connell met Bowers outside and

      told him that he needed to leave because Sutton wanted to kill him. After

      approximately fifteen minutes, Sutton left because he believed Bowers had

      called the police.


[6]   On May 10, 2016, the State charged Sutton with two counts of Level 6 felony

      invasion of privacy (enhanced to felonies by virtue of his prior conviction for

      invasion of privacy), count I for violation of the protective order and count II

      for violating the no-contact order. On September 20, 2016, a jury found Sutton

      guilty of two counts of invasion of privacy and Sutton pled guilty to having a

      prior conviction, which enhanced both convictions to Level 6 felonies. On

      October 19, 2016, the trial court sentenced Sutton to two and one-half years of

      incarceration for each conviction, both sentences to be served concurrently.


                                 Discussion and Decision
                                        I. Double Jeopardy
[7]   Sutton was charged with, and convicted of, violating subsections 2 and 6 of

      Indiana Code section 35-46-1-15.1:

              A person who knowingly or intentionally violates:
                  …

      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2638 | April 17, 2017   Page 4 of 9
                   (2) an ex parte protective order issued under IC 34-26-5 (or, if
                   the order involved a family or household member, an
                   emergency order issued under IC 34-26-2 or IC 34-4-5.1
                   before their repeal); [or]
                   ….
                   (6) a no contact order issued as a condition of probation;
                   ….
                   commits invasion of privacy, … a Level 6 felony if the person
                   has a prior unrelated conviction for an offense under this
                   section.
      Ind. Code § 35-46-1-15.1.


[8]   Sutton contends that his two convictions for invasion of privacy violate Indiana

      constitutional prohibitions against double jeopardy, specifically, the “actual

      evidence” test. In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana

      Supreme Court 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

      … the actual evidence used to convict, the essential elements of one challenged

      offense also establish the essential elements of another challenged offense.” Id.

      at 49-50. The Richardson court stated the actual evidence test as follows:


              To show that two challenged offenses constitute the “same
              offense” in a claim of double jeopardy, a defendant must
              demonstrate a reasonable possibility that the evidentiary facts
              used by the fact-finder to establish the essential elements of one
              offense may also have been used to establish the essential
              elements of a second challenged offense.
      Id. at 53.


[9]   The actual evidence test does not help Sutton in this case. One of his

      convictions required proof of an existing protective order while the other
      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2638 | April 17, 2017   Page 5 of 9
       required proof of a no-contact order. We conclude that there is no reasonable

       possibility that the jury relied on the same evidentiary facts to convict Sutton of

       both counts of invasion of privacy.


[10]   That said, we conclude that Sutton is entitled to relief pursuant to another rule

       of Indiana law:


               “In addition to the instances covered by Richardson, ‘we have
               long adhered to a series of rules of statutory construction and
               common law that are often described as double jeopardy, but are
               not governed by the constitutional test set forth in Richardson.’”
               Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce
               v. State, 761 N.E.2d 826, 830 (Ind. 2002)). One of these
               categories prohibits “conviction and punishment for a crime
               which consists of the very same act as another crime for which
               the defendant has been convicted and punished.” Id.; see also
               Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring).
       Phillips v. State, 25 N.E.3d 1284, 1291 (Ind. Ct. App. 2015).


[11]   The State produced evidence of only one act that could have violated the

       protective and no-contact orders—Sutton’s visit to O’Connell’s house on the

       morning of April 5, 2016. Although Sutton’s visit lasted approximately two

       hours, it was, in fact, only one act, for which he can only be punished once.

       Consequently, we remand with instructions to vacate Sutton’s conviction for

       count II, invasion of privacy.


                              II. Appropriateness of Sentence
[12]   We “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2638 | April 17, 2017   Page 6 of 9
       light of the nature of the offense and the character of the offender.” Ind.

       Appellate Rule 7(B). “Although appellate review of sentences must give due

       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). “A person who commits a Level 6 felony (for a

       crime committed after June 30, 2014) shall be imprisoned for a fixed term of

       between six (6) months and two and one-half (2½) years, with the advisory

       sentence being one (1) year.” Ind. Code § 35-50-2-7(a). As mentioned, the trial

       court sentenced Sutton to a maximum term of two and one-half years of

       incarceration for each of his invasion-of-privacy convictions, to be served

       concurrently, which means that his new sentence is the same length even

       though one of his convictions must be vacated.


[13]   The nature of Sutton’s offense justifies an enhanced sentence. The conviction

       in this case represents the third conviction Sutton received in a few months for

       crimes against O’Connell, following his January or 2016 conviction for

       domestic battery and his March of 2016 conviction for invasion of privacy. In

       early April of 2016, Sutton appeared uninvited at O’Connell’s house (when her

       two children were also there) and stayed for over two hours despite being asked

       to leave over a dozen times. Sutton was likely under the influence of illegal

       drugs. Sutton also talked about how he had a knife and was going to stab

       O’Connell’s boyfriend and her boyfriend’s father, the latter in the neck. Sutton


       Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2638 | April 17, 2017   Page 7 of 9
       also threatened to burn down and/or tear down O’Connell’s house. Sutton’s

       actions went far beyond what is necessary to prove invasion of privacy, and

       therefore justify an enhanced sentence.


[14]   Sutton’s character also justifies an enhanced sentence. At the age of thirty-five,

       Sutton’s lengthy criminal history speaks poorly of his character, to say the least.

       Sutton has a juvenile adjudication for what would be, if committed by an adult,

       battery. As an adult, Sutton has prior convictions for Class C felony burglary;

       Class D felony possession of marijuana, hash oil, or hashish; three counts of

       Class A misdemeanor operating a vehicle while suspended; Class A

       misdemeanor marijuana possession; Class A misdemeanor paraphernalia

       possession; Class A misdemeanor domestic battery; Class A misdemeanor

       invasion of privacy; Class B misdemeanor disorderly conduct; and Class C

       misdemeanor operating a vehicle with blood alcohol concentration of at least

       0.08 but less than 0.15. Sutton has had his criminal probation revoked, a

       suspended sentence revoked three times, and a suspended sentence modified

       twice. Sutton’s criminal history shows significant unaddressed issues with

       substance abuse and violence, including the recent spate of crimes committed

       against O’Connell. Despite Sutton’s frequent contacts with the criminal justice

       system, he has not chosen to reform himself. Sutton has failed to establish that

       his maximum two-and-one-half-year sentence is inappropriate in light of the

       nature of his offense and his character.


[15]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to vacate count II.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2638 | April 17, 2017   Page 8 of 9
Najam, J., and Riley, J., concur.




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