MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Mar 04 2020, 7:40 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Jennings Daugherty                                       Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jennings Daugherty,                                      March 4, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-CR-1093
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Gregory A. Horn,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         89D02-0901-FB-5



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1093 | March 4, 2020                  Page 1 of 7
[1]   Jennings Daugherty appeals the trial court’s order denying his motion to correct

      error, arguing that the trial court cannot impose consecutive sentences for his

      two convictions for Class B felony unlawful possession of a firearm by a serious

      violent felon. Finding no error, we affirm.


                                                    Facts
[2]   The following comes from this Court’s memorandum decision on Daugherty’s

      direct criminal appeal:


                      [On May 26, 2007], Daugherty was charged with Class A
              misdemeanor carrying a handgun without a license, Class D
              felony intimidation, Class D felony operating a motor vehicle
              while intoxicated, Class D felony resisting law enforcement, and
              two counts of Class B felony possession of a firearm by a serious
              violent felon. The State further alleged that the Class A
              misdemeanor carrying a handgun charge should be enhanced to a
              Class C felony because Daugherty had a prior felony conviction.
              Daugherty was also alleged to be a habitual offender. On August
              14, 2009, Daugherty filed a motion to suppress the evidence
              recovered following what he alleged was an illegal traffic stop by
              Captain Porfidio. The trial court denied Daugherty’s motion to
              suppress on February 16, 2010, and subsequently denied his
              request that the ruling be certified for interlocutory appeal.
                      During an April 9, 2010 pre-trial hearing, Daugherty
              waived his right to a jury trial and indicated that he would
              stipulate to being a habitual offender if convicted of the underlying
              crimes. Daugherty filed a second motion to suppress on April 13,
              2010. Daugherty failed to appear on the morning of his April 19,
              2010 bench trial, and the trial was conducted, over his counsel’s
              objection, without Daugherty present. The State dismissed the
              resisting law enforcement charge. Upon reviewing the evidence
              presented by the parties, the trial court denied Daugherty’s second
              motion to suppress and found Daugherty guilty of the remaining
              counts as charged.
                      . . . Daugherty subsequently admitted to being an habitual
              offender.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1093 | March 4, 2020   Page 2 of 7
                     At sentencing, the State moved to set aside the Class C
              felony carrying a handgun without a license conviction out of
              double jeopardy concerns. The trial court imposed a three-year
              sentence for the intimidation conviction that was to run
              concurrently to a one-and-one-half-year sentence for the operating
              while intoxicated conviction, but consecutively to the two
              consecutive fifteen-year sentences for each of the possession of a
              firearm by a serious violent felon convictions. The trial court
              enhanced Daugherty’s sentence by an additional twenty years as
              result of his status as an habitual offender, for an aggregate fifty-
              three-year sentence.


      Daugherty v. State, Cause No. 89A01-1010-CR-520, slip. op. at 2-3 (Ind. Ct.

      App. May 9, 2011). This Court ultimately affirmed Daugherty’s convictions

      and sentence and held that “Daugherty’s multiple convictions for possession of

      a firearm by a serious violent felon do not violate Indiana’s prohibition against

      double jeopardy.” Id. at 5.


[3]   Subsequently:


              On October 29, 2012, Daugherty filed a pro se petition for post-
              conviction relief, which was amended by his counsel on July 15,
              2014. On December 3, 2014, the parties jointly filed an Agreement
              to Vacate Daugherty’s Habitual Offender Finding and Resulting
              Enhanced Sentence on Count V. On December 8, 2014, the trial
              court accepted the agreement and reduced Daugherty’s aggregate
              sentence to 33 years. On July 8, 2015, the post-conviction court
              held an evidentiary hearing on Daugherty’s petition for post-
              conviction relief. Daugherty’s appellate counsel was the sole
              witness at the hearing. He testified that he raised four issues on
              appeal: (1) the trial court’s denial of Daugherty’s motion to
              suppress constituted an abuse of the court’s discretion; (2)
              Daugherty’s multiple convictions for possession of a firearm by an
              SVF [serious violent felon] violated the prohibition against double
              jeopardy; (3) the trial court erred in allowing the State to amend
              the habitual offender information; and (4) Daugherty’s sentence
              was inappropriate. Out of these issues, in appellate counsel’s

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1093 | March 4, 2020   Page 3 of 7
              opinion, the double jeopardy violation and the inappropriateness
              of Daugherty’s sentence claims were the strongest arguments. He
              testified that he did not consider raising a claim that the
              consecutive sentences for two SVF convictions constituted an
              impermissible double enhancement and a claim that Daugherty’s
              aggregate sentence exceeded the statutory limitation for
              consecutive sentences arising out of a single episode of criminal
              conduct. On September 3, 2015, the post-conviction court entered
              its Findings of Fact and Conclusions of Law, denying the
              requested relief.


      Daugherty v. State, 52 N.E.3d 885, 889 (Ind. Ct. App. 2016). We held that

      Daugherty was not denied the effective assistance of appellate counsel “when

      counsel did not raise the double enhancement issue,” but that he was denied the

      effective assistance of appellate counsel “when counsel did not raise the issue of

      statutory limitation for consecutive sentences arising out of a single episode of

      criminal conduct.” Id. at 895.


[4]   We affirmed in part, reversed in part, and remanded the matter to the trial court

      for resentencing. We gave specific orders that Daugherty’s “aggregate term [be]

      limited to 30 years.” Id. The trial court then issued its revised sentencing order

      on September 16, 2016.1 On March 12, 2019, Daugherty filed a motion to

      correct error, arguing that the trial court could not impose consecutive

      sentences for his two convictions for Class B felony unlawful possession of a

      firearm by a serious violent felon, and that the trial court should revise his term




      1
        The record before us does not include this September 16, 2016, sentencing order; thus, we are unaware of
      the length and structure of Daugherty’s revised sentence.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1093 | March 4, 2020                    Page 4 of 7
      so that the two convictions would be served concurrently. The trial court denied

      Daugherty’s motion on March 25, 2019. Daugherty now appeals.


                                   Discussion and Decision
[5]   Daugherty’s sole argument on appeal is that the trial court erred when it denied

      his motion to correct error. We will reverse a trial court’s denial of a motion to

      correct error only when its decision is against the logic and effect of the facts

      and circumstances before it or if the court has misinterpreted the law. Scales v.

      Scales, 891 N.E.2d 1116, 1118 (Ind. Ct. App. 2008). “The trial court’s decision

      on a motion to correct error comes to us cloaked with a presumption of

      correctness, and the appellant has the burden of showing [that the trial court

      erred].” Faulkinbury v. Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct. App. 2015).


[6]   Specifically, Daugherty contends that a trial court, in general, does not have

      statutory authority to impose consecutive sentences for his two unlawful

      possession of a firearm convictions. See generally Appellant’s Br. p. 5.


[7]   Pursuant to Indiana Code section 35-38-1-15, “[i]f the convicted person is

      erroneously sentenced, the mistake does not render the sentence void. . . . A

      motion to correct sentence must be in writing and supported by a memorandum

      of law specifically pointing out the defect in the original sentence.” In his

      memorandum of law, Daugherty argues that his “SVF convictions, for fifteen

      years each, were ordered to run consecutively, though, both previous and post

      precedents have indicated that contemporaneous SVF offenses should be run

      concurrently.” Appellant’s App. Vol. II p. 23.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1093 | March 4, 2020   Page 5 of 7
[8]   However, Daugherty mischaracterizes Indiana law. There is no statute

      precluding trial courts from imposing consecutive sentences for these types of

      convictions. In fact, Indiana caselaw has repeatedly held that “[a] trial court

      may order consecutive sentences based on one valid aggravating factor.” Kayser

      v. State, 131 N.E.3d 717, 723 (Ind. Ct. App. 2019); see also Gleason v. State, 965

      N.E.2d 702, 712 (Ind. Ct. App. 2012) (finding that “[o]ne valid aggravator

      alone is enough to enhance a sentence or to impose it consecutive to

      another[]”). And in Daugherty’s original criminal trial, the trial court found

      Daugherty’s “significant criminal history” dating back to 1984 to be an

      aggravator. Appellant’s App. Vol. II p. 33. As such, Daugherty’s significant

      criminal history was enough to justify the trial court’s imposition of consecutive

      sentences for his two Class B felony convictions. See, e.g., Gleason, 965 N.E.2d

      at 712 (holding that the severity of a defendant’s criminal history alone is

      enough to justify the imposition of consecutive sentences).


[9]   Additionally, Daugherty’s reliance on Walton v. State is misplaced. In Walton,

      this Court upheld, sua sponte, the trial court’s imposition of consecutive

      sentences for the defendant’s multiple convictions for unlawful possession of a

      firearm by a serious violent felon. 81 N.E.3d 679, 682 (Ind. Ct. App. 2017).

      This Court agreed with the holding in Taylor v. State, 929 N.E.2d 912, 921 (Ind.

      Ct. App. 2010), finding that the statutory language of Indiana Code section 35-

      47-4-5(c)—the unlawful possession statute itself—allows for the imposition of




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1093 | March 4, 2020   Page 6 of 7
       consecutive sentences provided that each unlawful possession is a separate and

       distinct offense.2


[10]   Therefore, because the trial court was within its legal authority to impose

       consecutive sentences for his two Class B felony convictions, we find no error in

       the trial court’s order denying Daugherty’s motion to correct error.


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


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




       2
        Further, the Walton Court ordered a sentence reduction for the defendant pursuant only to an Appellate
       Rule 7(B) appropriateness challenge, which this Court already considered and denied. See Daugherty v. State,
       Cause No. 89A01-1010-CR-520, slip. op. at 7.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1093 | March 4, 2020                     Page 7 of 7
