MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Feb 08 2017, 8:32 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jack Quirk                                               Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Billy Stacy Jr.,                                         February 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1608-CR-1829
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable John M. Feick,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         18C04-1412-F3-2



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1608-CR-1829 | February 8, 2017       Page 1 of 4
                               Case Summary and Issues
[1]   Following a jury trial, Billy Stacy Jr. was convicted of rape, criminal

      confinement, battery, strangulation, and theft. He was also found to be an

      habitual offender. The trial court sentenced Stacy to an aggregate sentence of

      sixty-two years executed in the Indiana Department of Correction. Stacy

      appeals his sentence, raising two issues for our review: (1) whether the trial

      court abused its discretion in sentencing him, and (2) whether his sentence is

      inappropriate in light of the nature of the offenses and his character. However,

      we find an issue raised sua sponte to be dispositive: whether the trial court

      improperly sentenced Stacy. Concluding Stacy’s sentence exceeds statutory

      authority, we reverse and remand.



                            Facts and Procedural History
[2]   Late in the evening on December 15, 2014, Stacy joined friends, including

      K.W., at a local bar and later returned to K.W.’s home where K.W. became

      extremely intoxicated. K.W. fell asleep and awoke to discover Stacy standing

      at the foot of the bed. Stacy then jumped on, struck, choked, and raped K.W.

      Thereafter, Stacy fled the home and stole a vehicle.


[3]   On December 23, 2014, the State charged Stacy with rape as a Level 3 felony,

      criminal confinement as a Level 3 felony, battery as a Level 5 felony,

      strangulation as a Level 6 felony, and theft as a Level 6 felony. The State also
      Court of Appeals of Indiana | Memorandum Decision 18A02-1608-CR-1829 | February 8, 2017   Page 2 of 4
      alleged he was an habitual offender. A jury found Stacy guilty as charged. The

      trial court then sentenced Stacy to an aggregate sentence of sixty-two years

      executed. Relevant here, the trial court sentenced Stacy to twenty years for the

      rape conviction and enhanced that sentence by eighteen years due to Stacy’s

      status as an habitual offender. Stacy now appeals his sentence.



                                 Discussion and Decision
[4]   We sua sponte address the legality of Stacy’s sentence. “A sentence that is

      contrary to or violative of a penalty mandated by statute is illegal in the sense

      that it is without statutory authorization. A sentence that exceeds statutory

      authority constitutes fundamental error.” Reffett v. State, 844 N.E.2d 1072, 1073

      (Ind. Ct. App. 2006) (citations omitted) (reversing and remanding to the trial

      court for resentencing after sua sponte discovering the trial court imposed an

      illegal sentence). Here, the trial court entered judgment of conviction on the

      crime of rape as a Level 3 felony. Indiana Code section 35-50-2-5(b)(2)

      provides a person who commits a Level 3 felony shall be imprisoned for a fixed

      term of between three and sixteen years, with the advisory sentence being nine

      years. In sentencing Stacy for rape as a Level 3 felony, the trial court ordered

      Stacy to serve twenty years, four years above the maximum sentence for a Level

      3 felony. Therefore, Stacy’s sentence is in excess of statutory authority.

      Because Stacy’s sentence for rape is illegal and the trial court enhanced this

      sentence due to Stacy’s habitual offender status, we reverse the sentence and




      Court of Appeals of Indiana | Memorandum Decision 18A02-1608-CR-1829 | February 8, 2017   Page 3 of 4
      remand this case for re-sentencing in accordance with this opinion. For these

      reasons, we need not address the merits of Stacy’s claims. See id. at 1073 n.3.



                                              Conclusion
[5]   The trial court improperly sentenced Stacy because it imposed a sentence

      exceeding statutory authority. Stacy’s sentence is therefore reversed and we

      remand to the trial court for re-sentencing in accordance with this opinion.


[6]   Reversed and remanded.


      Kirsch, J., and Barnes, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1608-CR-1829 | February 8, 2017   Page 4 of 4
