MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            FILED
Memorandum Decision shall not be regarded as                      Sep 05 2017, 6:16 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                   CLERK
                                                                   Indiana Supreme Court
collateral estoppel, or the law of the case.                          Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Mark K. Leeman                                         Curtis T. Hill, Jr.
Leeman Law Office and Cass County                      Attorney General of Indiana
Public Defender
                                                       Katherine Cooper
Logansport, Indiana
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Byron Snelbaker,                                           September 5, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           09A05-1704-CR-756

        v.                                                 Appeal from the Cass Superior Court
                                                           The Hon. Richard Maughmer, Judge
State of Indiana,                                          Trial Court Cause No.
                                                           09D02-1610-F5-59
Appellee-Plaintiff.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A05-1704-CR-756 | September 5, 2017    Page 1 of 8
                                          Case Summary
[1]   Appellant-Defendant Byron Snelbaker pled guilty to two counts of Level 5

      felony battery and one count of Level 6 felony resisting law enforcement and

      admitted to being a habitual offender. The trial court imposed two consecutive

      six-year sentences for Snelbaker’s battery convictions—enhanced six years by

      virtue of Snelbaker’s habitual offender status—for an aggregate sentence of

      eighteen years of incarceration. Snelbaker contends that the trial court erred in

      imposing consecutive sentences for his two battery convictions and that those

      convictions violate constitutional and common-law prohibitions against double

      jeopardy. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On October 24, 2016, Snelbaker was driving his girlfriend’s gray Honda in

      Logansport without a license. When Logansport Police Officer Mark Van

      Horn attempted to stop Snelbaker, he fled, running through a number of stop

      signs and red lights and eventually exceeding 120 miles per hour. The police

      pursuit of Snelbaker eventually proceeded into Carroll County before returning

      to Cass County. When a stop stick blew out Snelbaker’s right front tire, he

      continued to flee from the police.


[3]   At one point, a police vehicle driven by Logansport Police Officer Shonn

      Parmeter pulled in front of Snelbaker, who attempted to force the police vehicle

      from the road by intentionally steering his vehicle into the officer’s. Officer


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      Parmeter sustained injuries when Snelbaker’s vehicle struck his. Eventually,

      near an airport, police officers executed a maneuver that forced Snelbaker from

      the road into a field. In the field, Snelbaker again intentionally struck Officer

      Parmeter’s occupied police vehicle with his.


[4]   On October 25, 2016, the State charged Snelbaker with Level 5 felony battery

      with a deadly weapon, Level 5 felony battery resulting in bodily injury to a

      public safety officer, and Level 6 felony resisting law enforcement. On

      February 15, 2017, the State added a habitual offender allegation. On February

      24, 2017, without a written plea agreement, Snelbaker pled guilty to all charges

      and admitted his habitual offender status. On April 3, 2017, the trial court

      sentenced Snelbaker to six years of incarceration for each battery conviction, to

      be served consecutively, and two and one-half years for resisting law

      enforcement, to be served concurrently with the battery sentences. The trial

      court enhanced Snelbaker’s twelve-year sentence by six years by virtue of his

      habitual offender status, for an aggregate sentence of eighteen years.


                                 Discussion and Decision
                                  I. Consecutive Sentences
[5]   Snelbaker contends that the trial court abused its discretion in imposing

      consecutive sentences for his two Level 5 battery convictions, one by means of a

      deadly weapon and one on a public safety officer resulting in injury.

              The determination of a defendant’s sentence is within the trial
              court’s discretion, and will be reversed only upon a showing of

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              abuse of discretion. Pritscher v. State, 675 N.E.2d 727, 729 (Ind.
              Ct. App. 1996). The legislature prescribes penalties for crimes
              and the trial court’s discretion does not extend beyond the
              statutory limits. Id. Therefore, in reviewing a sentence, we will
              consider whether it was statutorily authorized. Id. Further, we
              are duty bound to correct sentences that violate the trial court’s
              statutory authority to impose consecutive sentences under
              Indiana Code section 35-50-1-2.
      Ballard v. State, 715 N.E.2d 1276, 1279 (Ind. Ct. App. 1999).


[6]   Indiana Code section 35-50-1-2 provides, in part, as follows:


              [E]xcept for crimes of violence, … 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
              may not exceed the following:
              ….
                   (2) If the most serious crime for which the defendant is
                   sentenced is a Level 5 felony, the total of the consecutive
                   terms of imprisonment may not exceed seven (7) years.
[7]   Snelbaker correctly notes that neither of his battery convictions are crimes of

      violence as defined in Indiana Code subsection 35-50-1-2(a). Snelbaker,

      however, must also establish that his two battery convictions arose out of a

      single episode of criminal conduct. Snelbaker has failed to establish that this is

      the case.


[8]   An “episode of criminal conduct” refers to “offenses or a connected series of

      offenses that are closely related in time, place, and circumstance.” Ind. Code §

      § 35-50-1-2(b). Whether multiple offenses constitute a single episode of

      criminal conduct is a fact-sensitive inquiry to be determined by the trial court.


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      Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002). In making this

      determination, we look to the simultaneous and contemporaneous nature of the

      crimes, which would constitute a single episode of criminal conduct. Reed v.

      State, 856 N.E.2d 1189, 1200 (Ind. 2006). Separate offenses are not part of a

      single episode of criminal conduct when a full account of each crime can be

      given without referring to the other offenses. Reeves v. State., 953 N.E.2d 665,

      671 (Ind. Ct. App. 2011), trans. denied.


[9]   One of Snelbaker’s battery convictions required proof that he committed a

      battery on the road during the chase that injured a public safety officer, while

      the other required proof that he committed a battery in the field using a deadly

      weapon. Although the limited record does not indicate how far apart in time

      these two crimes occurred, each stands alone, and a full account of each can be

      given without referring to the other. In other words, the crimes occurred in

      different places and under different circumstances, and even if we assume they

      the second battery occurred not long after the first, they certainly were not

      simultaneous. Snelbaker has failed to establish that the trial court abused its

      discretion in imposing consecutive sentences for his two battery convictions.1




      1
        At least at the time of his guilty plea, Snelbaker must have shared our view in that he pled guilty to these
      two separate incidents and crimes.

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                                         II. Double Jeopardy                    2




[10]   Snelbaker also argues that his two Level 5 felony battery convictions violate

       prohibitions against double jeopardy. In Richardson v. State, 717 N.E.2d 32

       (Ind. 1999), the Indiana Supreme Court held “that two or more offenses are the

       ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution,

       if, with respect to … the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense.” Id. at 49-50.


               To show that two challenged offenses constitute the “same
               offense” in a claim of double jeopardy, a defendant must
               demonstrate a reasonable possibility that the evidentiary facts
               used by the fact-finder to establish the essential elements of one
               offense may also have been used to establish the essential
               elements of a second challenged offense.
       Id. at 53. “In determining the facts used by the fact-finder to establish the

       elements of each offense, it is appropriate to consider the charging information,

       jury instructions, and arguments of counsel.” Lee v. State, 892 N.E.2d 1231,

       1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832 (Ind. 2002);

       Richardson, 717 N.E.2d at 54 n.48).


[11]   Here, even on the limited record generated at Snelbaker’s guilty plea hearing, it

       is clear that his two battery convictions do not violate the “actual evidence”




       2
         The State contends that Snelbaker waived any claim that his convictions violate prohibitions against double
       jeopardy by pleading guilty. Rather than address the State’s waiver argument, we choose to address
       Snelbaker’s claim directly and express no opinion on the merits of the State’s argument.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1704-CR-756 | September 5, 2017           Page 6 of 8
       test. As charged, one of Snelbaker’s battery convictions required proof that he

       committed a battery that injured a public safety officer, while the other required

       proof that he committed a battery using a deadly weapon. The factual basis

       included separate facts supporting each of these convictions. Supporting the

       first charge, Snelbaker affirmed that he intentionally ran his car into Officer

       Parmeter’s in an attempt to force him from the road and that the impacts

       caused the officer pain and swelling. As for the second charge, Snelbaker

       affirmed that later, in a field, he intentionally “slammed” his vehicle into

       Officer Parmeter’s occupied police vehicle. Tr. Vol. II p. 12. At the very least,

       the two convictions involve different impacts at different times and places (on

       the road and later in the field), and the first is supported by evidence of bodily

       injury that is irrelevant to the second. Snelbaker’s two battery convictions were

       not supported by the same actual evidence.


[12]   Snelbaker also argues that his two battery convictions violate an Indiana

       common-law prohibition against double jeopardy, namely “‘[c]onviction and

       punishment for a crime which consists of the very same act as another crime for

       which the defendant has been convicted and punished.’” Guyton v. State, 771

       N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson, 717 N.E.2d at 56 (Sullivan,

       J., concurring)). As mentioned, Snelbaker’s two battery convictions were based

       on two acts—Snelbaker running his car into Officer Parmeter’s as he tried to

       force him from the road and then then running his car into Officer Parmeter’s

       again in the field after Snelbaker had been cornered. Snelbaker’s argument is

       based on his contention that the charging informations for the two batteries are


       Court of Appeals of Indiana | Memorandum Decision 09A05-1704-CR-756 | September 5, 2017   Page 7 of 8
       similar. Be that as it may, the factual basis at Snelbaker’s guilty plea hearing

       makes it clear that two distinct acts supported the two battery convictions.

       Snelbaker’s two battery convictions do not constitute being punished twice for

       the same act.


[13]   We affirm the judgment of the trial court.


       May, J., and Barnes, J., concur.




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