Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                    Dec 27 2013, 7:35 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                   ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                                     GREGORY F. ZOELLER
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          KARL M. SCHARNBERG
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

DEWAYNE NALLS,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )    No. 49A04-1306-CR-281
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt M. Eisgruber, Judge
                             Cause No. 49G01-1111-FA-82773


                                        December 27, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                              Case Summary

          DeWayne Nalls (“Nalls”) was convicted by a jury of Attempted Murder1 and his

thirty-five-year sentence was enhanced by five years under Indiana Code section 35-50-2-11,

due to his use of a firearm.2 Nalls appeals, presenting the sole issue of whether the

enhancement is illegal.3 No challenge having been made to the underlying sentences, we

affirm the sentences, but we vacate the illegal enhancement.

                                     Facts and Procedural History

          On June 22, 2011, Michael Gaddie (“Gaddie”) came to the Indianapolis residence of

Nalls and Tyrone Smith (“Smith”) to look at a television set that Smith had offered for sale.

As Gaddie and Smith walked toward the house, they passed Nalls sitting at a picnic table.

Nalls told Gaddie that he looked familiar, but Gaddie replied that he did not know Nalls.

Nalls followed Gaddie and Smith into the house, repeating his claim that Gaddie looked

familiar. Gaddie decided to leave, but was pursued by Nalls, who insisted: “I said, you look

familiar.” (Tr. 85.)

          Gaddie “stepped out the front door” and stopped. (Tr. 85.) He turned around and told


1
    Ind. Code §§ 35-41-5-1, 35-42-1-1.

2
  Indiana Code section 35-50-2-11(c) provides: “The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed an offense sentenced to an additional fixed
term of imprisonment if the state can show beyond a reasonable doubt that the person knowingly or
intentionally used a firearm in the commission of the offense.” Section (e) provides in pertinent part: “If the
jury … or the court … finds that the state has proved beyond a reasonable doubt that the person knowingly or
intentionally used a firearm in the commission of the offense, the court may sentence the person to an
additional fixed term of imprisonment of five (5) years.”

3
 In a bench trial, Nalls was also found guilty of Unlawful Possession of a Firearm by a Serious Violent Felon,
a Class B felony, I.C. § 35-47-4-5. He does not challenge his ten-year concurrent sentence for this offense.


                                                      2
Nalls to “get out of his face.” (Tr. 85.) When Gaddie had moved about eight to ten feet

away from Nalls, Nalls pulled out a gun and shot Gaddie in the back. Gaddie fell and Nalls

said, “f--- you, I told you, you remember me now.” (Tr. 86.) Nalls put the gun to Gaddie’s

face and pulled the trigger, but it did not fire. Nalls then used the gun to repeatedly strike

Gaddie in the head while telling Gaddie that he was going to kill him.

       Police were summoned and Nalls fled. The State charged Nalls with Attempted

Murder and Unlawful Possession of a Firearm by a Serious Violent Felon. A jury found him

guilty of the first charge; in the second phase of the bifurcated trial, the trial court found

Nalls guilty of the latter charge. The trial court also found as true the State’s allegation that

Nalls had used a firearm in the commission of a felony.

       On May 16, 2013, the trial court sentenced Nalls to thirty-five years imprisonment for

Attempted Murder and ten years for Unlawful Possession of a Firearm by a Serious Violent

Felon, with the sentences to be served concurrently. The trial court also enhanced the

Attempted Murder sentence by five years. This appeal ensued.

                                    Discussion and Decision

      The five-year enhancement of Nalls’s Attempted Murder sentence was premised
upon Indiana Code section 35-50-2-11, which provides in pertinent part:

       (a)      As used in this section, “firearm” has the meaning set forth in IC 35-47-
             1-5.

       (1)      As used in this section, “offense” means:

       (2)      a felony under IC 35-42 that resulted in death or serious bodily injury;

       (3)      kidnapping; or

       (4)      criminal confinement as a Class B felony.

                                                3
Nalls contends, and the State agrees, that the offense of Attempted Murder is not one of

offenses to which the statutory enhancement is applicable. As explained by our supreme

court in Crawford v. State:

        Indiana Code section 35-50-2-11 allows the trial court to enhance a sentence
        by five years if the defendant used a firearm in the commission of “an
        offense.” An offense is defined as “a felony under IC 35-42 that resulted in
        death or serious bodily injury. In this case, the State charged that Crawford did
        knowingly or intentionally use a firearm in the commission of said Attempted
        Murder. No part of Chapter 42 defines the crime of attempted murder.
        Because attempted murder is not “an offense” as the statute defines that term,
        an enhancement may not be attached to it.

755 N.E.2d 565, 567-68 (Ind. 2001).

        Here, despite the concession that the enhancement was error, the State argues that the

case must be remanded so that the trial court can re-evaluate Nalls’s aggregate sentence. The

State suggests that the trial court might wish to increase Nalls’s Class B felony sentence by

up to five years.4 In support of its request for remand, the State directs our attention to

United States v. Shue, 825 F.2d 1111 (7th Cir. 1987), cert. denied. In Shue, the court

observed:

        When, on appeal, one or more counts of a multicount conviction are reversed
        and one or more counts are affirmed, the result is an ‘unbundled’ sentencing
        package. See, e.g., United States v. Thomas, 788 F.2d 1250, 1260 (7th Cir.
        1986), cert. denied, … Because the sentences are interdependent, the reversal
        of convictions underlying some, but not all, of the sentences renders the
        sentencing package ineffective in carrying out the district court’s sentencing
        intent as to any one of the sentences on the affirmed convictions.

825 F.2d at 1114.

4
 The State acknowledges that: “Defendant’s aggregate sentence cannot be increased on remand ‘absent a
special and particularized showing of new facts, such as new criminal acts occurring between the original
hearing and resentencing,’ but those facts do not appear to exist in this case. Wasman v. United States, 468
U.S. 559, 569 (1984).” Appellee’s Brief at 4.

                                                     4
       The Shue decision involved review of a re-sentencing decision upon remand after

reversal of several criminal convictions and affirmation of one. It is clearly distinguishable

from the instant case, in which there was no reversal of a criminal conviction. Moreover, the

Shue decision applied federal law in an appeal from an Illinois district court. In short, it does

not provide authority for the procedural mechanism that the State now seeks, that is, remand

for trial court reconsideration of its sentencing decision.

       Further, the State initiated no appeal of the sentence imposed upon Nalls. Indeed, it

may do so only in limited circumstances, where the trial court has acted outside its sentencing

authority, as explained in McCullough v. State, 900 N.E.2d 745, 750-51 (Ind. 2009):

       [T]he State may not by appeal or cross-appeal (a) initiate a challenge to a trial
       court’s criminal sentence that is within the court’s sentencing authority or (b)
       seek appellate review and revision of such sentence. When a defendant
       requests appellate review and revision of a criminal sentence pursuant to
       authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution,
       however, the reviewing court is presented with the issue of whether to affirm,
       reduce, or increase the sentence. As to this issue, the perspectives of both the
       defendant and the State will be helpful. Thus, the State’s appellee’s brief,
       when responding to such a request for sentence review and revision from a
       defendant may, if desired, present reasons supporting an increase in the
       sentence without the necessity of proceeding by cross-appeal.

       Although the State arguably may have been able to appeal to correct the illegal

enhancement, the State was not free to initiate an Indiana Appellate Rule 7(B) challenge to

sentence appropriateness. Nalls has not requested that we review or revise his thirty-five and

ten-year sentences for the crimes of which he was convicted, only that we vacate an illegal

enhancement of one of those sentences. We therefore have before us no request for sentence

revision pursuant to Rule 7(B), which might have opened the door to State argument that the


                                               5
sentence imposed was too lenient. See Akard v. State, 937 N.E.2d 811, 814 (Ind. 2010)

(observing that “defendant’s raising of sentence reasonableness on appeal authorizes

appellate consideration of whether the assigned sentence is inappropriately stern or lenient”).

In sum, the State has identified no provision of law that authorizes the State to challenge

Nalls’s sentence by cross-appeal or requires remand for reconsideration by the trial court.

       Accordingly, we decline the State’s request to remand for further proceedings. We

vacate the five-year illegal enhancement to Nalls’s sentence for Attempted Murder.

       Affirmed in part; vacated in part.

FRIEDLANDER, J., and KIRSCH, J., concur.




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