MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    Feb 28 2017, 8:26 am
court except for the purpose of establishing                      CLERK
the defense of res judicata, collateral                       Indiana Supreme Court
                                                                 Court of Appeals
estoppel, or the law of the case.                                  and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James D. Crum                                            Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C.                             Attorney General of Indiana
Carmel, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith Gwaltney,                                          February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A04-1610-CR-2283
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Steven R. Nation,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D01-1510-CM-8747
                                                         29D01-1510-F6-8748



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017   Page 1 of 5
                                Case Summary and Issue
[1]   Keith Gwaltney was convicted of possession of a synthetic or lookalike drug as

      a Class A misdemeanor and failure to return to lawful detention as a Level 6

      felony. The trial court sentenced Gwaltney to an aggregate sentence of two and

      one-half years in the Indiana Department of Correction, to be served

      consecutively to each of two prior sentences Gwaltney received in the months

      leading up to this case. Gwaltney now appeals, raising a single issue, which we

      restate as whether the trial court abused its discretion in sentencing him.

      Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   In June 2015, Gwaltney was convicted of criminal confinement as a Level 5

      felony in Hamilton County Superior Court 1. The trial court sentenced him to

      six years in prison (“Sentence One”), a portion of which was to be served on

      work release. While serving Sentence One on work release in September 2015,

      Gwaltney was found in possession of spice, failed to return to work release, and

      contacted the victim of his criminal confinement crime despite a no contact

      order. Thereafter, the State charged Gwaltney with invasion of privacy as a

      Class A misdemeanor in Hamilton County Superior Court 3. The State also

      charged Gwaltney with possession of a synthetic or lookalike drug as a Class A

      misdemeanor and failure to return to lawful detention as a Level 6 felony; each

      of these charges was filed in Superior Court 1.



      Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017   Page 2 of 5
[3]   On April 22, 2016, Gwaltney was convicted of invasion of privacy as a Class A

      misdemeanor in Superior 3 and sentenced to one year executed in the

      Department of Correction (“Sentence Two”), to be served consecutively to

      Sentence One. On September 22, 2016, Gwaltney was convicted of possession

      of a synthetic drug as a Class A misdemeanor and failure to return to lawful

      detention as a Level 6 felony. The trial court sentenced him to one year

      executed for the possession conviction and two and one-half years executed for

      the failure to return conviction, to be served concurrently (“Sentence Three”).

      The trial court further ordered Sentence Three be served consecutively to

      Sentence One and concurrently with Sentence Two.


[4]   The following day, the trial court reconvened the sentencing hearing in order to

      clarify Gwaltney’s sentence. The trial court explained, “[s]entencing hearing

      occurred yesterday . . . and the Court in making the [sentencing] statement

      included . . . that the sentences were concurrent with [Sentence Two]. When I

      was reviewing the orders to sign on this, that was not my intent and I’m now

      going to correct the record . . . .” Transcript of Appeal at 16. Thus, the trial

      court amended its sentencing order and ordered Sentence Three be served

      consecutively to Sentence One and consecutively to Sentence Two. This appeal

      ensued.



                                 Discussion and Decision
[5]   Gwaltney contends the trial court abused its discretion in sentencing him.

      Specifically, he claims the trial court erroneously concluded it could not as a

      Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017   Page 3 of 5
      matter of law order Sentence Three run concurrent with Sentence Two, when in

      fact the court was not obligated to run these sentences consecutively but had

      discretion to order the sentences be served concurrently.1 He therefore requests

      we reverse and remand to the trial court with instructions to order Sentence

      Three run concurrent with Sentence Two. The State counters the trial court

      had always intended to impose consecutive sentences and it properly clarified

      its sentencing statement to reflect its intent. We agree with the State.


[6]   We review a trial court’s sentencing decision for an abuse of discretion.

      McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). An abuse of discretion

      occurs when the trial court’s decision is clearly against the logic and effect of

      the facts and circumstances before the court or when the court misinterprets the

      law. Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied.


[7]   Gwaltney turns our attention to a single statement at the clarification hearing

      where the trial court stated, “[T]he Court’s intention was to be sure that I did

      not set aside what the [Superior 3] Judge had done. And the [Superior 3] Judge

      had ordered that [Sentence Two] was a consecutive sentence to [Sentence

      One].” Tr. of Appeal at 19. Thus, according to Gwaltney, the trial court was

      under the impression it was required to order Sentence Three be served

      consecutively to Sentence Two because doing otherwise would “negatively




      1
       Gwaltney agrees his sentence has to be served consecutively to Sentence One. See Appellant’s Brief at 7.
      Moreover, he does not challenge his sentence on the basis the trial court did not have the authority to order
      Sentence Three be served consecutively to Sentence Two. As the State points out, there were valid reasons
      supporting consecutive sentences.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017            Page 4 of 5
      affect the Superior Court 3 judge’s intent for [Sentence Two] to be consecutive

      to [Sentence One].” Appellant’s Brief at 7. Although we certainly

      acknowledge some confusion occurred in sentencing Gwaltney, a thorough

      review of the clarification hearing transcript makes clear the trial court always

      intended to order Sentence Three be served consecutively to Sentence Two. See

      Tr. of Appeal at 20 (trial court noting the State’s assertion that the parties

      convened for the clarification hearing “to clarify and make sure that the order

      shows the Court’s original intention yesterday morning” was “correct”). After

      reviewing its statement ordering Sentence Three be served concurrently with

      Sentence Two, the trial court recognized its mistake and promptly scheduled a

      hearing the following day to clarify its order to reflect its original intent to order

      Sentence Three be served consecutively to Sentence Two. We therefore

      conclude the trial court did not abuse its discretion in ordering Sentence Three

      be served consecutively to Sentence Two.



                                              Conclusion
[8]   The trial court did not abuse its discretion in sentencing Gwaltney.

      Accordingly, we affirm.


[9]   Affirmed.


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




      Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017   Page 5 of 5
