Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                                 GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    JESSE R. DRUM
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                              Sep 04 2014, 9:27 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

MARCUS J. SCHNEIDER,                                )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 52A02-1402-CR-117
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MIAMI SUPERIOR COURT
                          The Honorable Daniel C. Banina, Judge
                             Cause No. 52D02-1308-FC-178



                                        September 4, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Following Marcus J. Schneider’s guilty plea to Class D felony residential entry1 and

his admission to habitual offender2 status, the trial court sentenced Schneider to six years

of incarceration. Schneider appeals and asserts that the trial court improperly sentenced

him.

        We affirm and remand for correction of the sentencing statement.

                           FACTS AND PROCEDURAL HISTORY

        Schneider and his then-wife, Erica, divorced in January 2012. They have one child

together. In August 2013, Erica and Schneider arranged to meet at a gas station to bring

Schneider’s clothes to him. Erica’s then-boyfriend, Randy, to whom she is now married,

accompanied her to meet Schneider. After their meeting, Erica and Randy went to a local

bar and grill, and Schneider followed them. An altercation ensued, and Schneider was

thrown out of the premises. When Erica and Randy left, Schneider was waiting, and he

followed them to Erica’s home. He tried to enter the home and was refused. Eventually,

he got his foot in the door and entered the home. After a scuffle, Erica and Randy threw

Schneider out onto the porch. The contents of his pockets fell out, including a knife.

Schneider tried to gain entry again, but ran away when Erica called the police. Peru Police

Department Officer Jeremy Brindle apprehended Schneider, who told the officer he had a




        1
           See Ind. Code § 35-43-2-1.5. We note that, effective July 1, 2014, a new version of this criminal
statute was enacted. Because Schneider committed his crime prior to July 1, 2014, we will apply the statute
in effect at the time he committed his crime.
        2
          See Ind. Code § 35-50-2-8. Like the residential entry statute, the habitual offender statute was
recodified, effective July 1, 2014, but we apply the statute in effect at the time Schneider committed his
crime in 2013.

                                                     2
knife in his pocket. Schneider told police nothing had happened and denied having entered

Erica’s house.

       Several days later, the State charged Schneider with four counts: (I) Class C felony

intimidation; (II) Class D felony residential entry; (III) Class A misdemeanor battery

resulting in bodily injury; and (IV) Class B misdemeanor criminal mischief. The next day,

the State added a fifth count, alleging Schneider was an habitual offender for having two

prior unrelated felony convictions, one in 2006 for Class D felony auto theft and another

in 2012, also for Class D felony auto theft.

       In December 2013, the parties appeared for a change of plea hearing, at which the

trial court was presented with a plea agreement that Schneider had signed. Schneider

pleaded guilty to Count II, Class D felony residential entry and admitted to being an

habitual offender. The plea agreement provided that “sentencing will be left to the

discretion of the court with an agreement for a cap of six years.” Tr. at 22; Appellant’s

App. at 84. The trial court read the charges to Schneider, and in response to each, he

pleaded guilty. The trial court explained the maximum and minimum sentences that

statutorily could be imposed for each conviction. With regard to the habitual offender

finding, the trial court identified the two prior felonies being alleged, and then explained,

“If they prove both those allegations they will have proved the Habitual Offender which

could enhance the sentence up to . . . four and a half years on top of the original charge[.]”

Tr. at 24. Schneider testified and admitted to the two prior felonies. The trial court found

him guilty of the residential entry charge and found the habitual offender count to be true.

Id. at 25. It also dismissed counts I, II, and IV, and dismissed a pending probation violation.

                                               3
       At the subsequent sentencing hearing, Schneider testified that he was on probation

at the time of the current offense, and the trial court reviewed with Schneider the various

juvenile and adult criminal history convictions appearing in his presentence investigation

report. The trial court identified the following as aggravating factors: (1) Schneider’s prior

criminal record; (2) Schneider was on probation at the time of the offense; (3) he was

carrying a knife; and (4) prior attempts at rehabilitation were unsuccessful, such that

probation was “a disaster.” Id. at 39. The trial court identified as mitigating factors: (1)

Schneider entered a plea of guilty, saving the time and expense of trial; and (2) the mother

of his child was requesting that he not be ordered to serve any incarceration. The trial court

determined that the aggravating circumstances outweighed the mitigating ones, and it

sentenced Schneider to three years in the Department of Correction for residential entry

and three years for the habitual offender finding, for a total of six years executed. Schneider

now appeals.

                              DISCUSSION AND DECISION

       Schneider presents one issue alleging that the trial court improperly sentenced him,

but therein alleges several errors in the trial court’s sentencing, contending that (1) the trial

court abused its discretion when it found as an aggravator that Schneider was carrying a

knife in violation of his probation, (2) the sentence is inappropriate in light of the nature of

the offense and the character of the offender, and (3) the trial court improperly entered a

separate sentence for the habitual offender finding rather than an enhancement of the

residential entry sentence. We address each in turn.



                                               4
                                     I.       Improper Aggravator

       Schneider argues that the trial court abused its discretion when it found that his

possession of a knife3 constituted an aggravating circumstance. Sentencing determinations

are within the trial court’s discretion and will be reversed only for an abuse of discretion.

Baker v. State, 994 N.E.2d 306, 311 (Ind. Ct. App. 2013), trans. denied; see also Anglemyer

v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218. An abuse of

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

the facts and circumstances before it. Baker, 994 N.E.2d at 311. A trial court may abuse

its discretion by failing to enter a sentencing statement, entering findings of aggravating

and mitigating factors unsupported by the record, omitting factors clearly supported by the

record and advanced for consideration, or giving reasons that are improper as a matter of

law. Anglemyer, 868 N.E.2d at 490-91. We may review both the written and oral

sentencing statements. Harris v. State, 964 N.E.2d 920, 926 (Ind. Ct. App. 2012), trans.

denied.

       Here, in its sentencing statement and during the sentencing hearing, the trial court

identified four aggravating factors: (1) Schneider’s criminal record; (2) he was on

probation at the time of this offense; (3) he was carrying a knife at the time of the incident;

and (4) prior attempts at rehabilitation had failed. Appellant’s App. at 5; Tr. at 39-40. With

regard to the knife, which is the only aggravator being challenged in the appeal, the trial

court stated, “I’m also going to find that it’s in violation . . . that he was carrying a, a knife




       3
           It is undisputed that the knife was a regular-sized pocket knife.

                                                       5
at the time of the offense which is also a violation of his probation.” Tr. at 39. On appeal,

Schneider asserts that, although a pending probation violation was dismissed as part of his

guilty plea agreement, the record contains no evidence of the terms of his probation or the

claimed violation and, consequently, it is not known whether possession of a knife was

precluded as a condition of his probation. Furthermore, he asserts, the record contains no

evidence that Schneider intended to use the knife. For these reasons, Schneider claims the

sentencing statement is not supported by the record and/or the trial court’s reasoning is

improper as a matter of law. Given the record before us, we are not persuaded.

       At the sentencing hearing, Schneider told the trial court he was, in fact, on probation

and conceded that he was not supposed to be carrying a knife:

       By the Court:        And you were on probation at that time?

       Schneider:           Correct.

       By the Court:        Then you should not have [had] a knife at all. Correct?

       Schneider:           Correct.

Tr. at 36. Even if, as Schneider asserts, the trial court did not know the actual terms and

conditions of the probation, and thus whether possession of the knife was a violation of it,

the trial court did hear Schneider admit he was not supposed to be carrying a knife. Also,

contrary to Schneider’s claim that there was no evidence that he intended to use the knife,

Erica told police that Schneider opened the knife after it fell out of his pocket. This was a

deliberate act. Randy heard Erica yell that Schneider had a knife, and Randy pulled her

inside the house. They called the police, and Schneider ran away.



                                              6
       Even if we were to find that the trial court erred when it identified possession of the

knife as an aggravator, this court has recognized that a single aggravating circumstance

may be sufficient to support the imposition of an enhanced sentence. Flickner v. State, 908

N.E.2d 270, 274 (Ind. Ct. App. 2009). Here, Schneider does not challenge the validity of

the other three stated aggravating factors, namely, his criminal history, being on probation

at the time of the offense, and the fact that prior attempts at rehabilitation had failed. The

two mitigating factors that the trial court identified were that he pleaded guilty and that his

ex-wife did not want the State to seek punishment. The trial court, after reviewing the

aggravators and mitigators, determined, “obviously aggravating outweigh mitigating.” Tr.

at 40. Even excluding the knife as an aggravator, we find no abuse of discretion in the trial

court’s sentencing of Schneider.

                           II.     Appropriateness of Sentence

       Schneider pleaded guilty the Class D felony residential entry with a habitual

offender enhancement. The sentencing range for Class D felonies is between six months

and three years, with an advisory sentence of one and one-half years. Ind. Code § 35-50-

2-7. A habitual offender is subject to an additional sentence ranging from the advisory

sentence for the underlying offense to three times that advisory sentence. Ind. Code § 35-

50-2-8(h). Therefore, Schneider faced up to seven and one-half years, but the State agreed

to cap his sentence at six years and to dismiss three counts and a pending probation

violation. Following a sentencing hearing, the trial court sentenced Schneider to three

years of incarceration for the residential entry conviction and three years for the habitual

offender finding.    Schneider argues that he “received little benefit” from the plea

                                              7
agreement, because his six-year sentence was only one and one-half years shorter than the

maximum possible. Appellant’s Br. at 12. He asks this court to reverse and impose a

sentence of two years on the residential entry conviction enhanced by two years for the

habitual offender finding, arguing that his sentence is inappropriate pursuant to Indiana

Appellate Rule 7(B).4

        Appellate courts have the constitutional authority to revise a sentence if, after

consideration of the trial court’s decision, the court concludes the sentence is inappropriate

in light of the nature of the offense and character of the offender. Ind. Appellate Rule 7(B).

A defendant bears the burden of showing both prongs of the inquiry favor revision of his

or her sentence. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (citing

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied. When a defendant

requests appellate review and revision of his sentence, we have the power to affirm, reduce,

or increase the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting

our review, we do not look to see whether the defendant’s sentence is appropriate or if

another sentence might be more appropriate; rather, the test is whether the sentence is




        4
          We note that not every sentence that is the product of a plea agreement is subject to Rule 7(B)
review; only if the trial court is exercising discretion in imposing sentence may a defendant then contest on
appeal the merits of that discretion on the grounds that the sentence is inappropriate. Hole v. State, 851
N.E.2d 302, 304 (Ind. 2006). Here, where the plea agreement provided for a sentencing cap, the trial court
was required to exercise discretion in deciding whether to impose the maximum sentence allowed by the
cap, or something less. Therefore, Schneider did not waive his right to contest the merits of that discretion
on grounds that his sentence is inappropriate in light of the nature of the offense and the character of the
offender. Miles v. State, 889 N.E.2d 295, 296 (Ind. 2008) (defendant did not waive appellate sentence
review under invited error doctrine where defense agreed to sixty-five year cap and he was sentenced to
sixty-five years); Childress v. State, 848 N.E.2d 1073, 1078-79 (Ind. 2006) (defendant may challenge
appropriateness of sentence imposed under plea agreement that has sentencing cap or range).

                                                     8
inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007) (emphasis in

original).

       The nature of the offense inquiry compares the defendant’s actions with the required

showing to sustain a conviction under the charged offense. Anderson, 989 N.E.2d at 827.

To convict Schneider of residential entry, the State had to prove that he knowingly or

intentionally broke into and entered Erica’s dwelling. Ind. Code § 35-43-2-1.5. Schneider

claims that he was convicted of entering his ex-wife’s home to discuss discipline concerns

involving their child and concedes that an altercation ensued; however, he contends that

both he and Randy engaged in the altercation and asserts that the record is not clear who

initiated it. Therefore, he argues, the nature of the offense does not warrant the maximum

six-year sentence authorized under the plea agreement.           The State maintains that

Schneider’s conduct exceeded the elements of the residential entry statute, and we agree.

       According to the record before us, Erica arranged to meet Schneider at a gas station

to give him clothes that belonged to him but that had been left in her possession. After

meeting him, Erica and Randy went to a bar to meet her uncle, pursuant to previous plans.

Schneider followed her, went into the bar, and confronted them at their table; Erica believed

Schneider was going to punch Randy. Eventually, Schneider was kicked out of the bar.

When Erica and Randy later left, Schneider was waiting outside and followed them to

Erica’s home. They denied entry to him, but he pushed open the door and wedged his foot

in the doorway, so they could not shut it. Eventually, he gained entry and a scuffle ensued.

Randy was able to throw Schneider out of the front door, at which time the contents of

Schneider’s pockets emptied, including a pocket knife. Schneider opened it. Meanwhile,

                                             9
Erica had reached police who arrived at the home, and, as they did, Schneider ran way but

was apprehended. He told police nothing had happened, and he denied being inside Erica’s

home.

        As to the character of offender, Schneider reminds us that he is the father of three,

possibly four, children, including his son with Erica, and that he expressed remorse for his

misconduct and accepted responsibility by pleading guilty.         The contention that he

expressed remorse is debatable; at the sentencing hearing, Schneider admitted that he was

“in the wrong” in the situation, but when asked, “Is this something that would not happen

again?” he replied, “I promise it wouldn’t. It’s not worth all this time.” Tr. at 33.

Schneider acknowledges having a juvenile and adult criminal history, but suggests that the

criminal history, “while lengthy, was relatively minor, given the harshest conviction he

received [w]as a Class D felony.” Appellant’s Br. at 11. We disagree that his criminal

history is relatively minor. Schneider’s repeated encounters with the juvenile justice

system began at age twelve, and he was adjudicated delinquent on at least six occasions.

He has eleven convictions as an adult, four of which are felony convictions. One of those

convictions was felony non-support of a dependent, which as the State notes, “undermines

any assertion that being the father of three or four children reflects positively on his

character.” Appellee’s Br. at 12. According to the presentence investigation report,

Schneider has been placed on probation eleven times, has violated probation seventeen

times, and has never completed an adult probation successfully. The trial court stated, “[I]t

seems like you could never stay out of trouble. You never completed any probation. . . .

[Y]ou’ve been given several opportunities for alcohol and drug rehabilitation and never

                                             10
completed any of them.” Tr. at 39. The probation department reported that Schneider was

not an acceptable candidate for the community corrections program.

       We are not persuaded that Schneider’s six-year sentence, which was within the

terms of his plea agreement, is inappropriate in light of the nature of the offense or the

character of the offender.

                             III.   Habitual Offender Sentencing

       At the sentencing hearing, the trial court imposed a sentence of three years for the

residential entry conviction and three years for the habitual offender finding, for a total of

six years executed, stating, “[S]o it’s gonna be three years on Count V, that’s running

consecutive to Count II for a total of six years Department of Correction.” Id. at 40. The

subsequent written sentencing statement likewise indicated a three-year sentence “on each

count” and ordered them to “run consecutively.” Appellant’s App. at 34. Schneider argues,

and the State concedes, that the trial court entered a separate three-year sentence for the

habitual offender finding to be served consecutive to the sentence for the residential entry

conviction, rather than a sentence enhancement.         Schneider is correct that this was

improper.

       A habitual offender finding does not constitute a separate crime, nor does it result

in a separate sentence. See Ind. Code § 35-50-2-8. Rather, a habitual offender finding

results in a sentence enhancement imposed upon the conviction of a subsequent felony.

Harris, 964 N.E.2d at 927 (citing Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001)).

Therefore, we remand for correction of the sentencing order so that it reflects that the three-

year habitual offender enhancement serves as an enhancement of the Class D felony

                                              11
residential entry conviction. See Bauer v. State, 875 N.E.2d 744, 747 (Ind. Ct. App. 2007)

(illustrating remand is appropriate remedy where trial court erroneously treats habitual

offender enhancement as separate sentence), trans. denied.

      Affirmed and remanded.

MAY, J., and BAILEY, J., concur.




                                           12
