MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                          May 16 2017, 8:23 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                     Curtis T. Hill, Jr.
Law Office of Christopher G. Walter,                    Attorney General of Indiana
P.C.
Nappanee, Indiana                                       Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Armando Gonzalez, Jr.,                                  May 16, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1608-CR-2110
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Terry C.
Appellee-Plaintiff                                      Shewmaker, Judge
                                                        Trial Court Cause No.
                                                        20C01-1311-FB-131



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017            Page 1 of 6
[1]   Armando Gonzalez, Jr., appeals the sentence he received following our remand

      for him to be resentenced. As Gonzalez has not demonstrated the sentence

      imposed by the trial court is “illegal,” (Appellant’s Br. at 4), we affirm.



                            Facts and Procedural History
[2]   When Gonzalez’s case was before us in 2016, we explained:

              The State charged Gonzalez with five Class B felonies: robbery
              while armed with a deadly weapon, burglary, criminal
              confinement, conspiracy to commit burglary, and unlawful
              possession of a firearm by a serious violent felon. A jury found
              Gonzalez guilty of the first four charges. In a second stage of the
              trial, the court found Gonzalez guilty of unlawful possession of a
              firearm by a serious violent felon.


              On March 12, 2015, over the State’s objection, the trial court
              reduced the robbery and criminal confinement convictions to
              Class C felonies because of double jeopardy concerns. It
              sentenced Gonzalez to eight years for each Class C felony and
              ordered the sentences served consecutively, for a total of sixteen
              years. The trial court then sentenced Gonzalez to fifteen years
              for each Class B felony to be served consecutively, for a total of
              forty-five years. Gonzalez’s aggregate sentence was sixty-one
              years.


      Gonzalez v. State, No. 20A03-1504-CR-133, slip op. at *2 (Ind. Ct. App. Jan. 12,

      2016) (footnotes omitted).


[3]   Gonzalez challenged the order that he serve three of his sentences

      consecutively, and the State cross-appealed the court’s decision to reduce


      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017   Page 2 of 6
      Gonzalez’s convictions of robbery and criminal confinement to Class C

      felonies. Id. at *1. We did not address Gonazalez’s issue. Instead, we

      remanded for resentencing after addressing the State’s cross-appeal:

              The trial court erred when it reduced Gonzalez’s conviction for
              robbery and criminal confinement from Class B to Class C
              felonies based on double jeopardy concerns. Accordingly, we
              remand for resentencing with the convictions of robbery and
              criminal confinement as Class B felonies.


      Id. at *3 (footnote omitted).


[4]   On remand, the trial court held a hearing, at which no new evidence was

      submitted, and resentenced Gonzalez for five Class B felony convictions. The

      court ordered Gonzalez to serve consecutive sentences of fifteen years for

      robbery, sixteen years for burglary, ten years for confinement, ten years for

      conspiracy to commit burglary, and ten years for possession of a firearm by a

      serious violent felon. Thus, Gonzalez’s aggregate sentence was again 61 years.



                                Discussion and Decision
[5]   In his Summary of Argument, Gonzalez asserts

              the trial court then modified the length of the sentence on
              [robbery] and [confinement] without any direction from the
              Court of Appeals and without any further evidence being
              admitted. This clearly was error. While it was necessary for the
              trial court to follow the directive of the Court of Appeals to
              amend [those counts] to Class B Felonies, there was no
              discernible reason to modify the length of the sentences . . . .

      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017   Page 3 of 6
      (Appellant’s Br. at 6.)


[6]   First, contrary to Gonzalez’s argument, our opinion did, in fact, give the trial

      court authority to modify the sentence lengths. We wrote that we were

      remanding “for resentencing with the convictions of robbery and criminal

      confinement as Class B felonies.” Gonzalez, No. 20A03-1504-CR-133 at *3. If

      we had wanted the trial court to simply enter a new order that called those

      crimes Class B felonies, as Gonzalez asserts, we would have told the trial court

      to enter a new order without resentencing Gonzalez. See, e.g., O’Connell v. State,

      742 N.E.2d 943, 952 (Ind. 2001) (remanding for “a new sentencing order”

      because the original sentencing order did not explain the court’s basis for the

      sentence).1 But we did not use that language; we ordered the trial court to

      “resentenc[e]” him. Gonzalez, No. 20A03-1504-CR-133 at *3.


[7]   Second, we disagree “there was no discernible reason for the trial court to

      increase the sentence on [robbery] by seven (7) years and the sentence on

      [confinement] by two years.” (Appellant’s Br. at 10.) The discernible reason is

      that Gonzalez’s convictions are now of Class B, rather than Class C, felonies.

      When Gonzalez committed his crimes in 2013, the sentencing range for a Class

      C felony was two to eight years, with the advisory sentence being four years,




      1
        Gonzalez relies on O’Connell as a complete list of “the options available to a trial court when an appellate
      court sends a cause back to it for resentencing.” (Appellant’s Br. at 9.) However, the Supreme Court
      remanded O’Connell’s case to the trial court for a new sentencing order that merely explained how the court
      arrived at O’Connell’s sentence; the Supreme Court did not order O’Connell be resentenced. See O’Connell,
      742 N.E.2d at 952-53. Thus, O’Connell does not control the extent of the trial court’s authority when
      resentencing Gonzalez.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017                Page 4 of 6
      Ind. Code § 35-50-2-6 (2005), and the sentencing range for a Class B felony was

      six to twenty years, with the advisory sentence being ten years. Ind. Code § 35-

      50-2-5 (2005). The trial court, based on its weighing of the aggravators and

      mitigators, had imposed maximum sentences of eight years when the

      convictions were entered as Class C felonies, and it therefore makes sense that,

      when resentencing Gonzalez for crimes that were one felony class higher, the

      trial court would wish to impose sentences that were at or above the advisory

      sentence. Cf. Lane v. State, 727 N.E.2d 454, 457 (Ind. Ct. App. 2000) (when

      appellate court remanded for correction of Lane’s sentence, because trial court

      had imposed a fifty-year presumptive sentence after statutory change had made

      the presumptive sentence only forty years, trial court was required to enter the

      presumptive sentence when resentencing, even though presumptive was ten

      years shorter).


[8]   Finally, Indiana law provides that

              on resentencing after the reversal of a conviction in a multicount
              proceeding, the trial court has “flexibility upon remand,
              including the ability to increase sentences for individual
              convictions without giving rise to a presumption of vindictive
              sentencing, so long as the aggregate sentence is no longer than
              originally imposed.” In so holding, we explained that “a trial
              court is likely to view individual sentences in a multi-count
              proceeding as part of an overall plan, a plan that can be
              overthrown if one or more of the convictions is reversed or
              reduced in degree.”




      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017   Page 5 of 6
       Guffey v. State, 42 N.E.3d 152, 163 (Ind. Ct. App. 2015) (internal citations

       omitted), trans. denied. If trial courts have the flexibility on remand to increase

       sentences for remaining convictions when one conviction has been reversed, see

       also Hmurovic v. State, 43 N.E.3d 685, 689 (Ind. Ct. App. 2015) (remanding to

       vacate conviction and resentence on the remaining conviction), it would be

       illogical to hold trial courts did not have the same flexibility after we required

       the trial court to enter certain convictions as more serious felonies.


[9]    For all these reasons, we find no error in the trial court imposing a fifteen-year

       sentence for Gonzalez’s conviction of Class B felony robbery and a ten-year

       sentence for Gonzalez’s conviction of Class B felony criminal confinement.

       Accordingly, we affirm.


[10]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017   Page 6 of 6
