MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                               Dec 15 2015, 6:36 am
precedent or cited before 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
J. Clayton Miller                                        Gregory F. Zoeller
Jordan Law, LLC                                          Attorney General of Indiana
Richmond, Indiana
                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Shuminoff,                                       December 15, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A01-1505-CR-502
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Gregory A. Horn,
                                                         Judge
Appellee-Plaintiff.
                                                         Cause No. 89D02-1206-FC-42




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015       Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Michael Shuminoff (Shuminoff), appeals his sentence

      after pleading guilty to four Counts of burglary, Class C felonies, Ind. Code §

      35-43-2-1 (2013), and his adjudication as an habitual offender, I.C. § 35-50-2-8.


[2]   We affirm.


                                                    ISSUE

[3]   Shuminoff raises one issue on appeal, which we restate as: Whether the trial

      court abused its discretion when it determined that the four burglaries did not

      constitute a single episode of criminal conduct for purposes of sentencing.


                           FACTS AND PROCEDURAL HISTORY

[4]   Over a span of nineteen days, Shuminoff committed four burglaries in three

      different businesses in Richmond, Indiana. On May 29, 2012, Shuminoff broke

      into and entered into the Primex Plastics Plant, where he stole a security

      camera and damaged two vending machines to obtain the money that was

      inside. Four days later, on June 2, 2012, Shuminoff broke into and entered

      Mathew International Casket, where he stole money out of various vending

      machines. Thereafter, on June 10, 2012, Shuminoff again broke into and

      entered Primex Plastics Plant where he destroyed two vending machines to

      steal the money. Lastly, on June 17, 2012, police officers were dispatched to

      the Mosey Manufacturing Plant on a report that “an unknown individual had

      been in the break room of the plant and that the change machine had been


      Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015   Page 2 of 7
      shoved back into the wall and had a screwdriver jammed into it as well as the

      coffee machine had been shoved over.” (Appellant’s App. p. 15). The officers

      located Shuminoff in a small office inside Mosey Manufacturing Plant. He

      admitted to having committed all four burglaries.


[5]   On June 19, 2012, the State filed an Information charging Shuminoff with four

      Counts of burglary, Class C felonies, as well as an Information for an habitual

      offender enhancement. On February 5, 2015, Shuminoff entered an open plea

      as to the four burglary Counts and the habitual offender charge. On March 4,

      2015, the trial court conducted a sentencing hearing. During the hearing,

      Shuminoff argued that the four burglaries constituted a single episode of

      criminal conduct. The trial court ordered both parties to brief “as to what

      exactly is an episode and why [Shuminoff] fits it or why his doesn’t fit it.”

      (Transcript p. 29). On April 27, 2015, the trial court resumed the sentencing

      hearing and found that the burglaries were not “a connected series of offenses

      that are closely connected in time, place, and circumstance.” (Tr. p. 35).

      Accordingly, the trial court sentenced Shuminoff to seven years on each Count

      with no time suspended, with Counts I, II, and III to run consecutively, and

      Count IV to run concurrently with Counts I through III. Count I was enhanced

      by ten years for the habitual offender adjudication. In sum, the trial court

      imposed an aggregate sentence of thirty-one years with no time suspended.


[6]   Shuminoff now appeals. Additional facts will be provided as necessary.


                                 DISCUSSION AND DECISION


      Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015   Page 3 of 7
[7]   Shuminoff contends that the trial court abused its discretion in ordering

      consecutive sentences after finding that the four burglaries did not constitute a

      single episode of criminal conduct because they were not closely connected in

      time, place, and circumstance.


[8]   In general, a trial court cannot order consecutive sentences in the absence of

      express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006).

      “‘A sentence that is contrary to or violative of a penalty mandated by statute is

      illegal in the sense that it is without statutory authorization.’” Id. (quoting

      Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)). “An appellate claim of

      sentencing error is subject to review for abuse of trial court discretion; reversal

      results ‘only if there has been a manifest abuse of discretion.’” Reynolds v. State,

      657 N.E.2d 438, 440 (Ind. Ct. App. 1995) (quoting Fugate v. State, 608 N.E.2d

      1370, 1374 (Ind. 1993)).


[9]   Indiana Code section 35-50-1-2(c)(2) provides that except for statutory crimes of

      violence—which burglary is not—“the total of the 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.” The term

      “episode of criminal conduct” has been statutorily defined as “offenses or a

      connected series of offenses that are closely related in time, place, and

      circumstance.” I.C. § 35-50-1-2(b). “Whether certain offenses constitute a

      single episode of criminal conduct is a fact-sensitive inquiry to be determined by

      Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015   Page 4 of 7
       the trial court before it is subject to appellate review. Schlichter v. State, 779

       N.E.2d 1155, 1157 (Ind. 2002).


[10]   In support of his argument that the four burglaries are part of one episode of

       criminal conduct and his sentence should be reduced to ten years, 1 Shuminoff

       relies on Henson v. State, 881 N.E.2d 36 (Ind. Ct. App. 2008), trans. denied, and

       Gallien v. State, 19 N.E.3d 303 (Ind. Ct. App. 2014), trans. denied. In Henson,

       Henson was convicted of burglarizing two neighboring garages during the early

       morning hours of the same day. Henson, 881 N.E.2d at 39. Because “the

       burglaries were ‘closely related in time, place, and circumstance,’” this court

       found them to be part of one single episode of criminal conduct. Id. (quoting

       I.C. § 35-50-1-2(b)). Similarly, in Gallien, the defendant committed two

       separate burglaries in two different business within the same morning. Gallien,

       19 N.E.3d at 305. The trial court declined to find a single episode of criminal

       conduct and imposed consecutive sentences. Id. at 308. In post-conviction

       proceedings, we concluded that Gallien’s appellate counsel was ineffective for

       failing to raise the consecutive sentencing issue on direct appeal. Id. Finding

       “the fact that two different businesses were burglarized” was not dispositive, we

       focused on “the small distance between the two burglaries, the short amount of

       time between them and the apparent scheme that tied them together” to




       1
        The advisory sentence for a Class B felony, which is one Class of felony higher than the felonies Shuminoff
       was charged with, is ten years. See I.C. § 35-50-2-5.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015          Page 5 of 7
       conclude that both burglaries were “closely related in time, place, and

       circumstance.” Id. at 310.


[11]   In response, the State points to Williams v. State, 891 N.E.2d 621 (Ind. Ct. App.

       2008), and Reynolds v. State, 657 N.E.2d 438 (Ind. Ct. App. 1995). In Williams,

       we focused on “the timing of the offenses and the simultaneous and

       contemporaneous nature, if any, of the crimes” while “additional guidance on

       the question can be obtained by considering whether the alleged conduct was so

       closely related [] that a complete account of one charge cannot be related

       without referring to the details of the other charge.” Williams, 891 N.E.2d at

       631. Within these parameters, we concluded that “[w]hile the two drug buys

       occurred within twenty-four hours of each other and at the same location, they

       were, nonetheless, distinct arrangements for the sale of narcotics. Indeed, a

       complete recount of the first drug buy can be given without reference to the

       other[.]” Id. Likewise, in Reynolds, we determined that three separate

       burglaries of three different homes within a single day constituted separate

       offenses. Reynolds, 657 N.E.2d at 441. The court noted that “[e]ach burglary

       took place as a distinct episode in itself; each can be described without referring

       to details of the others.” Id.


[12]   In a more recent opinion by this court, we held that three burglaries did not

       arise from a single episode of criminal conduct. Slone v. State, 11 N.E.3d 969,

       972 (Ind. Ct. App. 2014). There, the defendant broke into one building in

       December 2012, another in April 2013, and a third in May 2013. We noted

       that although there were some common elements between the burglaries, they

       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015   Page 6 of 7
       were committed over the course of six months and thus “were not of a

       simultaneous or contemporaneous nature.” Id.


[13]   Here, Shuminoff committed the four burglaries over a nineteen-day period.

       Although two victims were the same, and the modus operandi of the crimes

       indicated several similarities, the drawn out time span of the crime spree and

       the three different locations of the burglarized businesses illustrate that the

       crimes were not of a contemporaneous nature. Moreover, each burglary can be

       described as a distinct episode in itself, without referring to the details of the

       other charges. Accordingly, based on these facts, we find Shuminoff’s situation

       more in line with the Williams, Reynolds, and Slone precedents than Henson and

       Gallien. Therefore, we affirm the trial court’s finding that the burglaries were

       not “a connected series of offenses that are closely related in time, place, and

       circumstance.” I.C. § 35-50-1-2(b).


                                              CONCLUSION

[14]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it determined that the four burglaries did not constitute a single

       episode of criminal conduct for purposes of imposing consecutive sentences.


[15]   Affirmed.


[16]   Brown, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015   Page 7 of 7
