MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Nov 21 2017, 8:58 am

regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                           Curtis T. Hill, Jr.
Huntington, Indiana                                     Attorney General of Indiana
                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric D. Huffman,                                        November 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        90A04-1707-CR-1683
        v.                                              Appeal from the Wells Circuit
                                                        Court
State of Indiana,                                       The Honorable Kenton W.
Appellee-Plaintiff                                      Kiracofe, Judge
                                                        Trial Court Cause No.
                                                        90C01-1512-F4-13



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A04-1707-CR-1683 | November 21, 2017            Page 1 of 8
[1]   Eric Huffman appeals the sentence imposed by the trial court after he was

      convicted of Level 4 Felony Burglary,1 Level 4 Felony Unlawful Possession of a

      Firearm by a Serious Violent Felon,2 and Level 6 Felony Theft,3 and was found

      to be an Habitual Offender.4 Huffman argues that the trial court erred by

      increasing the habitual offender enhancement after this Court remanded for

      resentencing following Huffman’s first appeal and that the sentence is

      inappropriate in light of the nature of the offenses and his character. Finding

      no error and that the sentence is not inappropriate, we affirm.


                                                    Facts
[2]   On December 28, 2015, Huffman was driving a white pick-up truck belonging

      to his ex-girlfriend, Cinda Sweeden. Sweeden, her four-year-old son, and

      Huffman’s wife, Danielle Huffman (Danielle), were also in the vehicle.

      Huffman told the other occupants of the vehicle that he needed to make a few

      stops.


[3]   At a trailer in the country outside of Montpelier, Huffman went in the front

      door and exited through the back door, emerging carrying a small flat-screen

      television, which he placed in the truck. He kept driving north and stopped at a




      1
          Ind. Code § 35-43-2-1.
      2
          Ind. Code § 35-47-4-5.
      3
          I.C. § 35-43-4-2.
      4
          Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 90A04-1707-CR-1683 | November 21, 2017   Page 2 of 8
      house on State Road 218. The house belongs to Donald Burns, whom

      Huffman knew because he used to date Burns’s aunt; Huffman had spent time

      in the home in the past. He entered the garage attached to the house and broke

      the glass in the door leading into the residence. He then entered the residence,

      stealing a large flat-screen television and five firearms. Huffman then drove

      away, planning to sell the firearms for cash at a pawn shop. Burns’s brother

      saw the truck leaving Burns’s property, noticed that the glass in the door was

      broken, and notified law enforcement. Eventually, law enforcement identified

      Huffman as the burglar.


[4]   On December 30, 2015, the State charged Huffman with multiple offenses,

      which were ultimately amended to include charges for Level 4 felony burglary,

      Level 4 felony unlawful possession of a firearm by a serious violent felon, and

      Level 6 felony theft, as well as an allegation that Huffman is an habitual

      offender. Huffman’s bifurcated jury trial took place on October 24 and 25,

      2016. On the second day of trial, Huffman removed his leg restraints during

      lunch and fled the courthouse. He encountered a private citizen, struck that

      person with a tool, and attempted to steal that person’s vehicle before he was

      finally apprehended.5 After the trial was complete, the jury found him guilty as

      charged and Huffman admitted to being a serious violent felon and an habitual

      offender.




      5
        Huffman was ultimately convicted of Level 2 felony escape and Level 2 felony kidnapping as a result of this
      incident.

      Court of Appeals of Indiana | Memorandum Decision 90A04-1707-CR-1683 | November 21, 2017          Page 3 of 8
[5]   On November 23, 2016, the trial court sentenced Huffman to twelve years for

      burglary, enhanced by fifteen years for the habitual offender adjudication; two

      and one-half years for theft; and twelve years for unlawful possession of a

      firearm. The trial court ordered the sentences to run consecutively, for an

      aggregate sentence of forty-one and one-half years imprisonment.


[6]   Huffman appealed his sentence, arguing that the trial court erred by ordering

      his sentence for unlawful possession of a firearm by a serious violent felon and

      his enhanced sentence for burglary to be served consecutively. Huffman v. State,

      No. 90A02-1612-CR-2791 (Ind. Ct. App. May 9, 2017). The State conceded,

      and this Court agreed, that the trial court erred:


              The finding that Huffman was an habitual offender was based in
              part on his prior escape conviction; his status as a serious violent
              felon was based on that same escape conviction. Because the
              enhancements of two separate counts were based on the same
              prior conviction, ordering the sentences to be served
              consecutively constitutes an improper double enhancement.


      Id. at *2. Consequently, this Court reversed and remanded “to resentence

      Huffman to concurrent terms on the burglary and unlawful possession counts

      so as to alleviate the double enhancement.” Id.


[7]   On remand, the trial court held a new sentencing hearing on July 28, 2017. It

      resentenced Huffman as follows: twelve years for burglary, enhanced by twenty

      years for the habitual offender adjudication; two and one-half years for theft;

      and twelve years for unlawful possession by a serious violent felon. The trial


      Court of Appeals of Indiana | Memorandum Decision 90A04-1707-CR-1683 | November 21, 2017   Page 4 of 8
      court ordered the sentences to be served concurrently, for an aggregate sentence

      of thirty-two years imprisonment. Huffman now appeals.


                                   Discussion and Decision
               I. Increase of Habitual Offender Enhancement
[8]   Huffman first argues that the trial court erred by increasing the habitual

      offender enhancement from fifteen to twenty years on resentencing. As a

      general rule, a trial court may not impose a “greater sentence” on a criminal

      defendant after a successful appeal of his conviction. Owens v. State, 916 N.E.2d

      913, 916 (Ind. Ct. App. 2009). This rule does not apply, however, where “‘an

      aggregate sentence is reduced, but some of the interdependent sentences in a

      sentencing package are increased following a successful appeal of some of the

      individual counts.’” Id. (quoting In re Craig, 571 N.E.2d 1326, 1328-29 (Ind. Ct.

      App. 1991) (internal quotation marks omitted)). In other words, “[w]e join

      with those courts who allow the trial court flexibility upon remand, including

      the ability to increase sentences for individual convictions . . . , so long as the

      aggregate sentence is no longer than originally imposed.” Sanjari v. State, 981

      N.E.2d 578, 583 (Ind. Ct. App. 2013).


[9]   In this case, while the trial court increased the habitual offender enhancement

      from fifteen to twenty years, the aggregate sentence decreased from forty-one

      and one-half years to thirty-two years imprisonment. Because the aggregate

      sentence was reduced, Huffman’s argument is unavailing. See id. at 583 (noting

      that when one component part of a sentence is altered, “‘common sense

      Court of Appeals of Indiana | Memorandum Decision 90A04-1707-CR-1683 | November 21, 2017   Page 5 of 8
       dictates that the judge should be free to . . . reconstruct the sentencing

       architecture upon remand, . . . if that appears necessary in order to ensure that

       the punishment still fits both the crime and criminal’”) (quoting United States v.

       Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989)).


                                        II. Appropriateness
[10]   Huffman also contends that the sentence is inappropriate in light of the nature

       of the offenses and his character pursuant to Indiana Appellate Rule 7(B). In

       considering an argument under Rule 7(B), we must “conduct [this] review with

       substantial deference and give ‘due consideration’ to the trial court’s decision—

       since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and

       not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013)) (internal citations omitted).


[11]   Huffman was convicted of two Level 4 felonies and one Level 6 felony and was

       found to be an habitual offender. For the Level 4 felony convictions, he faced a

       sentence of two to twelve years imprisonment, with an advisory term of six

       years. I.C. § 35-50-2-5.5. The trial court imposed a maximum twelve-year term

       for each of these convictions. For the Level 6 felony conviction, Huffman faced

       a sentence of six months to two and one-half years imprisonment, with an

       advisory term of one year. I.C. § 35-50-2-7(b). The trial court imposed a

       maximum term of two and one-half years. For the habitual offender

       adjudication, Huffman faced a sentence enhancement of six to twenty years,


       Court of Appeals of Indiana | Memorandum Decision 90A04-1707-CR-1683 | November 21, 2017   Page 6 of 8
       I.C. § 35-50-2-8(i)(1); on remand, he received a maximum twenty-year

       enhancement. As noted above, the trial court ordered all sentences to be served

       concurrently, for an aggregate term of thirty-two years imprisonment.


[12]   As for the nature of Huffman’s offenses, he burglarized a residence while his

       wife, ex-girlfriend, and ex-girlfriend’s four-year-old son were present. After

       stealing a television and five firearms, which he knew he could not possess

       because he was a convicted felon, he tried to pawn the firearms for cash.


[13]   As for Huffman’s character, in addition to placing innocent people at risk

       during the commission of these crimes, while awaiting trial he tried to convince

       his wife to state falsely that she committed the burglary. And on the second day

       of trial, he absconded and assaulted a private citizen; as a result, he was

       convicted of two Level 2 felonies prior to the resentencing in this case.


[14]   Moreover, Huffman has a lengthy and serious criminal history. In addition to

       two juvenile adjudications and two misdemeanor convictions, he has amassed

       six felony convictions, including Class C felony burglary, Class D felony theft,

       Class C felony escape, and Class D felony strangulation. At the time of

       Huffman’s original sentencing in this case, he had three cases pending in

       addition to the case stemming from his escape during trial: burglary and theft;

       theft; and prisoner in possession of a deadly weapon. He has had the benefit of

       shorter and longer sentences, probation, and parole, but shows no willingness

       or ability to respect the well-being of his fellow citizens or the rule of law.

       Under these circumstances, we do not find the aggregate thirty-two-year


       Court of Appeals of Indiana | Memorandum Decision 90A04-1707-CR-1683 | November 21, 2017   Page 7 of 8
       sentence inappropriate in light of the nature of the offenses and Huffman’s

       character.


[15]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 90A04-1707-CR-1683 | November 21, 2017   Page 8 of 8
