                                                                               FILED
                                                                           Jun 29 2018, 6:12 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Timothy P. Broden                                          Curtis T. Hill, Jr.
Lafayette, Indiana                                         Attorney General of Indiana

                                                           Tyler G. Banks
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tony Lemorris Clemons,                                     June 29, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A02-1712-CR-2931
        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Steven P. Meyer,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           79D02-1704-F5-52



May, Judge.




Court of Appeals of Indiana | Opinion 79A02-1712-CR-2931 | June 29, 2018                           Page 1 of 6
[1]   Tony Lemorris Clemons appeals his sentence for Level 5 felony domestic

      battery 1 and Level 6 felony invasion of privacy. 2 Clemons asserts the trial court

      erred when it imposed consecutive sentences for the two convictions because

      those convictions “were closely related in time, place, and circumstances.” 3

      (Br. of Appellant at 5.) As we find no abuse of discretion, we affirm.



                                Facts and Procedural History
[2]   Clemons and S.C. were married. Pursuant to a no contact order entered in

      2016, Clemons was not allowed to interact with S.C. On April 23, 2017, S.C.

      was at a bar in Lafayette, Indiana. Clemons went into the bar and sat next to

      S.C. Clemons took S.C.’s phone but S.C. would not give him the password.

      Clemons left the bar with the phone. S.C. followed him to the parking lot

      where she attempted to retrieve her phone. Clemons refused to give it to her.

      Clemons grabbed S.C. and threw her, headfirst, on the ground. When the

      police arrived, S.C. was bleeding from a head wound.


[3]   The State charged Clemons with four counts of domestic battery and two

      counts of invasion of privacy. Pursuant to a plea agreement, Clemons pled

      guilty to one count of Level 5 felony domestic battery and one count of Level 6




      1
          Ind. Code § 35-42-2-1.3 (2016).
      2
          Ind. Code § 35-46-1-15.1 (2016).
      3
       Clemons’ brief includes no standard of review. Appellate Rule 46(A)(8)(b) provides the argument section of
      an appellant’s brief must contain “a concise statement of the applicable standard of review.”

      Court of Appeals of Indiana | Opinion 79A02-1712-CR-2931 | June 29, 2018                        Page 2 of 6
      felony invasion of privacy. In return, the State dismissed the other charges

      under this cause number and a pending petition to revoke probation in an

      unrelated case. The trial court found the aggravators outweighed the mitigators

      and imposed a five-year sentence for domestic battery and a two-year sentence

      for invasion of privacy. The trial court ordered the sentences served

      consecutively.



                                  Discussion and Decision
[4]   Clemons argues the trial court erred by imposing consecutive sentences when

      the two convictions happened so closely in time as to warrant a single incident.

      Clemons argues this is one single incident because he could not commit battery

      on S.C. without first committing invasion of privacy. As such, he argues the

      sentences should have been imposed concurrently.


[5]   Sentencing decisions rest within the sound discretion of the trial court and will

      be disturbed only on a showing of abuse of discretion. Anderson v. State, 989

      N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion

      occurs when the decision is clearly against the logic and effect of the evidence

      before the court or the reasonable inferences to be drawn therefrom. Id.


[6]   If not a violation of the prohibition of double jeopardy, and if not in violation of

      applicable statutory mandates, “[a] trial court may impose consecutive

      sentences for separate and distinct crimes that arise out of a single confrontation

      involving the same victim.” Vermillion v. State, 978 N.E.2d 459, 466 (Ind. Ct.


      Court of Appeals of Indiana | Opinion 79A02-1712-CR-2931 | June 29, 2018   Page 3 of 6
      App. 2012). It is undisputed that Clemons’ crimes are not crimes of violence as

      defined in Indiana Code section 35-50-1-2(a). Therefore, his sentences are

      subject to the limits as prescribed under Indiana Code section 35-50-1-2(d)(2).


[7]   An “episode of criminal conduct” is defined as “offenses or a connected series

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

      § 35-50-1-2(b). If consecutive sentences are imposed for an episode of criminal

      conduct, the aggregate sentence is limited by the “most serious crime for which

      the defendant is sentenced[.]” Ind. Code § 35-50-1-2(d)(2). If that crime “is a

      Level 5 felony, the total consecutive terms of imprisonment may not exceed

      seven (7) years.” Id. The trial court here ordered a seven-year sentence, which

      was within the statutory limits for a single episode of criminal conduct.

      Accordingly, Clemons cannot demonstrate error in his sentence based on that

      statute. See Williams v. State, 889 N.E.2d 1274, 1282-83 (Ind. Ct. App. 2008)

      (aggregate sentences equaling less than the statutory limit are not a violation of

      Indiana Code section 35-50-1-2), trans. denied.


[8]   Clemons does not explicitly argue his right against double jeopardy has been

      implicated. Nevertheless, to support his assertion the trial court erred when it

      ordered him to serve the sentences for his two convictions consecutively,

      Clemons relies on a double jeopardy analysis regarding crimes arising from a

      single incident from Kocielko v. State, 938 N.E.2d 243 (Ind. Ct. App. 2010), on

      rehearing Kocielko v. State, 943 N.E.2d 1282 (Ind. Ct. App. 2011), trans. denied.

      In Kocielko, we held the trial court should have imposed concurrent sentences in

      order to reflect “the episodic nature of the crimes[.]” Id. at 1283.

      Court of Appeals of Indiana | Opinion 79A02-1712-CR-2931 | June 29, 2018    Page 4 of 6
[9]    However, in Vermillion, we noted Kocielko was not primarily concerned with

       consecutive sentencing but rather double jeopardy. Vermillion, 978 N.E.2d at

       466. We then declined to interpret Kocielko to mean a trial court may not

       impose consecutive sentences for separate crimes arising out of a single

       confrontation with a single victim. Id. Indiana Code section 35-50-1-2 supports

       this holding in that it specifically allows a trial court to impose consecutive

       sentencing for “felony convictions arising out of an episode of criminal

       conduct” provided the aggregate sentence is capped based on the most serious

       crime for which the defendant is convicted.


[10]   Here, the trial court sentenced Clemons to five years for domestic battery and

       two years for invasion of privacy. Finding the aggravators outweighed the

       mitigators, the trial court also noted the two offenses were separate, stating,

       “the invasion of privacy actually occurred even prior to the battery although it

       occurred close in time, there were two separate offenses here.” (Tr. at 68.) The

       aggregate sentence is not more than the statutory maximum of seven years set

       forth for a Level 5 felony in Indiana Code section 35-50-1-2(d)(2). Therefore,

       we cannot say the trial court abused its discretion in ordering the sentences to

       be served consecutive to one another. See Vermillion, 978 N.E.2d at 466 (if

       crimes “constitute a single episode of criminal conduct” and are not crimes of

       violence, the aggregate sentence may not exceed the maximum imprisonment

       as defined in Indiana Code section 35-50-1-2 but the trial court is allowed to

       impose consecutive sentences).




       Court of Appeals of Indiana | Opinion 79A02-1712-CR-2931 | June 29, 2018    Page 5 of 6
[11]   As Clemons has not demonstrated the trial court abused its discretion when it

       ordered Clemons to serve his sentences consecutively, we affirm.


[12]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1712-CR-2931 | June 29, 2018   Page 6 of 6
