                                                                                 Apr 28 2015, 10:26 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jeremy K. Nix                                              Gregory F. Zoeller
      Matheny, Hahn, Denman & Nix, L.L.P.                        Attorney General of Indiana
      Huntington, Indiana
                                                                 Christina D. Pace
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Zachery L. Lewis,                                          April 28, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 35A05-1410-CR-496
              v.                                                 Appeal from the Huntington Superior
                                                                 Court
      State of Indiana,
                                                                 The Honorable Jeffrey R.
      Appellee-Plaintiff                                         Heffelfinger, Judge

                                                                 Cause No. 35D01-1407-F6-196




      Najam, Judge.


                                         Statement of the Case
[1]   Zachery L. Lewis appeals his sentence following his convictions for two counts

      of battery, one as a Level 6 felony, and one as a Class A misdemeanor. Lewis




      Court of Appeals of Indiana | Opinion 35A05-1410-CR-496 | April 28, 2015                           Page 1 of 9
      presents three issues for our review, which we consolidate and restate as the

      following two issues:


              1.       Whether the two batteries constitute an episode of
                       criminal conduct under Indiana Code Section 35-50-1-2(c).
              2.       Whether the trial court abused its discretion when it
                       sentenced him.


      We affirm.


                                  Facts and Procedural History
[2]   On July 24 and 25, 2014, Lewis and his live-in girlfriend, Kelsey Cohen,

      engaged in a protracted and heated argument. Cohen finally went to sleep at

      approximately 6:00 a.m. on July 25. At approximately 9:00 that morning,

      Cohen awoke to find Lewis holding a hot hair straightening tool against her

      thigh, which burned her skin. And Cohen later discovered that Lewis had

      shaved off a portion of one of her eyebrows while she slept.


[3]   Later on July 25, Cohen went to the home of a friend, Jacque Stephan. And at

      approximately 11:00 or 11:30 that night, Lewis went to Stephan’s house to see

      Cohen. Cohen and Stephan, who were inside the house, heard Lewis yelling

      Cohen’s name from outside. Cohen and Stephan went outside and told Lewis

      to leave, but he refused. Stephan again asked Lewis to leave, and he pushed her

      to the ground. Stephen’s body struck two parked cars as she fell, and she

      sustained injuries.




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[4]   The State charged Lewis with two counts of battery, one as a Level 6 felony and

      one as a Class A misdemeanor.1 A jury found him guilty as charged. The trial

      court entered judgment of conviction accordingly and sentenced Lewis to two

      and one-half years for the Level 6 felony and one year for the Class A

      misdemeanor, to be served consecutively, for an aggregate term of three and

      one-half years. This appeal ensued.


                                      Discussion and Decision
                                Issue One: Episode of Criminal Conduct

[5]   Lewis first contends that the two batteries constitute an episode of criminal

      conduct. Indiana Code Section 35-50-1-2(c) provides in relevant part that,

      except for crimes of violence, the total of the consecutive terms of

      imprisonment to which the defendant is sentenced for multiple felony

      convictions arising out of an episode of criminal conduct shall not exceed the

      advisory sentence for a felony that is one class of felony higher than the most

      serious of the felonies for which the person has been convicted. “Episode of

      criminal conduct” means offenses or a connected series of offenses that are

      closely related in time, place, and circumstance. I.C. § 35-50-1-2(b). Lewis

      maintains that, because the advisory sentence for a felony that is one level




      1
        The Level 6 felony charge stemmed from the battery against Cohen, and the Class A misdemeanor charge
      stemmed from the battery against Stephan.

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      higher than a Level 6 felony is three years,2 the trial court erred when it imposed

      an aggregate sentence of three and one-half years. We do not agree.


[6]   Initially, we note that, effective July 1, 2014, our sentencing guidelines have

      replaced “classes” of felonies with “levels” of felonies. See, e.g., Ind. Code § 35-

      50-2-4. But our legislature has not revised Indiana Code Section 35-50-1-2 to

      refer to “levels” of felonies instead of “classes” of felonies. This is obviously an

      oversight and does not affect the applicability of Indiana Code Section 35-50-1-

      2 to the sentences imposed for felonies committed on or after July 1, 2014. 3


[7]   Lewis’ contention on this issue is without merit. Indiana Code Section 35-50-1-

      2(c) only applies to sentencing for “multiple felony convictions.” Here, Lewis

      was convicted of one felony and one misdemeanor. Thus, even if Lewis’

      offenses constituted an episode of criminal conduct, which they do not, 4 the

      statutory sentencing limit would not apply. The trial court did not err when it

      imposed an aggregate sentence of three and one-half years.




      2
         Indiana Code Section 35-50-2-6(b) provides in relevant part that the advisory sentence for a Level 5 felony
      is three years.
      3
        We note that there is legislation pending in the General Assembly that would, in relevant part, eliminate
      the use of the term “class” in Indiana Code Section 35-50-1-2. See S.B. 559, 119th Gen. Assemb., Reg. Sess.
      (Ind. 2015).
      4
        The evidence shows that the batteries occurred more than twelve hours apart at two different locations and
      involved two different victims. A complete account of one of the batteries can be given without referring to
      the other offense. Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995). Thus, Lewis’ crimes do not
      constitute an episode of criminal conduct.

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                            Issue Two: Abuse of Discretion in Sentencing

[8]   Lewis next contends that the trial court abused its discretion when it sentenced

      him. Sentencing decisions rest within the sound discretion of the trial court and

      are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218

      (Ind. 2007). An abuse of discretion occurs if the decision is clearly against the

      logic and effect of the facts and circumstances before the court, or the

      reasonable, probable, and actual deductions to be drawn therefrom. Id.


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering a sentencing statement that explains reasons for
              imposing a sentence—including a finding of aggravating and
              mitigating factors if any—but the record does not support the
              reasons, or the sentencing statement omits reasons that are
              clearly supported by the record and advanced for consideration,
              or the reasons given are improper as a matter of law. Under
              those circumstances, remand for resentencing may be the
              appropriate remedy if we cannot say with confidence that the
              trial court would have imposed the same sentence had it properly
              considered reasons that enjoy support in the record.


      Id. at 490-91.


[9]   Lewis contends that the trial court abused its discretion when it sentenced him

      because, he maintains, the court did not make a reasonably detailed sentencing

      statement. In particular, Lewis asserts that: (1) the trial court did not

      adequately identify an aggravating circumstance to support the imposition of an

      enhanced sentence for the Level 6 felony conviction; and (2) the court did not

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       articulate a reason for imposing consecutive sentences. We address each

       contention in turn.


[10]   The trial court’s written sentencing statement did not provide any explanation

       for the imposition of the enhanced sentence or consecutive sentences. But, at

       the conclusion of the sentencing hearing, the trial court stated as follows:


                 The Court incorporates, this [sic] is a previous [pre-sentence
                 investigation report,] and the Court incorporates it into this
                 sentencing hearing. You have one adjudication as a juvenile . . .
                 that was a battery. You have two (2) prior felonies, ten (10) prior
                 misdemeanors, [and] four (4) petitions to revoke [probation]. Of
                 your adjudications, both as a juvenile and as an adult, you have
                 seven (7) prior batteries, two (2) intimidations, and one (1)
                 resisting law enforcement. For those reasons, on Count one (1),
                 you are sentenced to [two and a half (2 1/2) years on the level 6
                 felony, and] for Count two (2), you are sentenced to . . . one (1)
                 year on the Class A misdemeanor. . . . The Court orders it [sic]
                 run consecutive to each other.


       Tr. at 186-87.


[11]   In Anglemyer, 868 N.E.2d at 490, our supreme court stated that,


                 [i]n order to facilitate its underlying goals, see Abercrombie[ v.
                 State, 275 Ind. 407, 417 N.E.2d 316, 319[ (1981)5], the



       5
           In Abercrombie, our supreme court explained that,

                 when the sentencing judge is required to make a statement of the reasons for imposing a
                 particular sentence, two important goals are served. First, the judge is confined to proper
                 grounds for either increasing or decreasing the presumptive sentence provided for the
                 offense; and, second, the appellate court is enabled to determine the reasonableness of the
                 sentence imposed, under the circumstances.

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                  [sentencing] statement must include a reasonably detailed
                  recitation of the trial court’s reasons for imposing a particular
                  sentence. If the recitation includes a finding of aggravating or
                  mitigating circumstances, then the statement must identify all
                  significant mitigating and aggravating circumstances and explain
                  why each circumstance has been determined to be mitigating or
                  aggravating.


[12]   Here, in its oral sentencing statement, the trial court identified no mitigators 6

       and a single aggravator, namely, Lewis’ extensive criminal history. 7 And the

       trial court described Lewis’ criminal history with an emphasis on prior offenses

       relevant to the instant batteries. While the trial court’s sentencing statement

       lacked detail, it was sufficiently detailed to support Lewis’ enhanced sentence

       for a Level 6 felony. See, e.g., Mayes v. State, 744 N.E.2d 390, 396 (Ind. 2001)

       (noting that, when a defendant’s criminal history is used as an aggravating

       factor to support an enhanced sentence, the trial court must recite the incidents

       comprising the criminal history).




                  But a statement of reasons for imposing a particular sentence serves numerous other goals
                  beyond the two primary goals. An attempt by the sentencing judge to articulate his
                  reasons for a sentence in each case should in itself contribute significantly to the
                  rationality and consistency of sentences. A statement by the sentencing judge explaining
                  the reasons for commitment can help both the defendant and the public understand why
                  a particular sentence was imposed. An acceptance of the sentence by the defendant
                  without bitterness is an important ingredient in rehabilitation, and acceptance by the
                  public will foster confidence in the criminal justice system.
       417 N.E.2d at 319 (citation omitted).
       6
           Lewis does not contend that the trial court abused its discretion when it did not identify any mitigators.
       7
         We agree with the State that the trial court’s failure to use the word “aggravator” is not fatal to its
       sentencing statement. It is clear that the trial court imposed an enhanced sentence based on Lewis’ criminal
       history.

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[13]   However, our supreme court has “emphasized that[,] before a trial court can

       impose a consecutive sentence, it must articulate, explain, and evaluate the

       aggravating circumstances that support the sentence.” Monroe v. State, 886

       N.E.2d 578, 580 (Ind. 2008). Here, in imposing Lewis’ sentence, the trial court

       described his criminal history and merely concluded that, “[f]or those reasons,”

       it was imposing the enhanced sentence on the Level 6 felony and ordering the

       two sentences to run consecutively. Tr. at 186.


[14]   While a single aggravator may be used both to enhance a sentence and impose

       consecutive sentences, Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App.

       2012), the trial court’s brief sentencing statement here lacked specificity. But

       we need not remand for resentencing because the rationale for consecutive

       sentences is apparent on the face of the record. Here there were two victims,

       and it is well settled that “injury to multiple victims” supports the imposition of

       consecutive sentences. McCann v. State, 749 N.E.2d 1116, 1120 (Ind.

       2001). Given Lewis’ extensive criminal history, including four probation

       violations, and the fact that Lewis committed batteries against two victims, we

       are confident that the trial court would have imposed the same sentence had it

       more fully articulated its reasons for imposing consecutive sentences. And we

       need not remand for resentencing if we can say with confidence that the trial

       court would have imposed the same sentence had it properly considered

       reasons that enjoy support in the record. See, e.g., Anglemyer, 868 N.E.2d at

       491. The trial court did not abuse its discretion when it sentenced Lewis.


[15]   Affirmed.

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Mathias, J., and Bradford, J., concur.




Court of Appeals of Indiana | Opinion 35A05-1410-CR-496 | April 28, 2015   Page 9 of 9
