Mаtthew Christopher Yost, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Court of Appeals Case No. 19A-CR-2834
COURT OF APPEALS OF INDIANA
June 5, 2020
Bailey, Judge.
MEMORANDUM DECISION. 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 defеnse of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: Talisha R. Griffin, Marion County Public Defender Agency, Appellate Division, Indianapolis, Indiana. ATTORNEYS FOR APPELLEE: Steven J. Hosler, Samantha M. Sumcad, Deputy Attorneys General, Indianapolis, Indiana. Appeal frоm the Marion Superior Court, The Honorable Grant W. Hawkins, Judge, Trial Court Cause No. 49G05-1909-F5-35951.
[1] Matthew Christopher Yost (“Yost“) appeals his five convictions of criminal recklessness, as Level 5 felonies,1 and his sentence. We dismiss, without prejudice, his appeal of his convictions, and we rеverse his sentence and remand with instructions.
Issues
[2] Yost raises two issues which we restate as follows:
- Whether Yost may challenge his convictions on direct appeal after pleading guilty without a plea agreement.
- Whether the trial court abused its discretion when it imposed consecutive terms of imprisonment.
Facts and Procedural History
[3] On September 12, 2019, the State charged Yost with five counts of criminal recklessness, as Level 5 felonies. At his October 9 guilty plea hearing, Yost pled guilty to all five counts. At that hearing, Yost admitted as follows.
[4] On September 7, 2019, Yost reported to police that there was a silver Dodge Charger parked in front of his house and that the occupants of the Charger were firing guns and attempting to enter his house. When Indianapolis Metropolitan Police Department (“IMPD“) Officer Joshua Brown (“Officer Brown“) and Detective Theodore Brink (“Det. Brink“) arrived at the scene, there was a silver Dodge Charger there but no individuals firing any weapons or trying to enter the house. The officers were in marked cars and in full police uniforms. The officers saw Yost look out through the blinds of a window in his house several times, but Yost relayed through dispatch that he did not see officers outside of his house. Dispatch then hung up so that the officers on the scene could attempt to communicate with Yost.
[5] After hanging up, Yost opened fire on the IMPD officers, firing bullets through the French doors on the east side of the house towards the front yard and street where Det. Brink аnd Officer Brown were located. The officers took cover and requested back up. At least one of the bullets fired towards the officers hit the house behind where they had taken cover. Yost also fired bullets into the house of his neighbor, Mary Glaser (“Glaser“), and into
[6] Yost having admitted to a factual basis for his guilty plea, the trial court entered convictions on all five criminal recklessness counts.
[7] At Yost‘s November 6 sentencing hearing, the State offered testimony from IMPD officers as to the timing in between the rounds of gunshots during the September 7 incident. The first volley, comprised of two shots, was fired by Yost through the French double doors on the side of Yost‘s house and towаrds Officer Brown and Det. Brink. After approximately two minutes of silence, Yost fired a second volley of gunshot rounds, a number of which ricocheted off the sidewalk in between the silver Dodge and the black CRV behind which the officers had taken cover. During that volley, Det. Brink also heard gunshot rounds hitting buildings. Yost also fired gunshot rounds at Glaser‘s house. Glaser was at a window looking across the side yard at Yost‘s French double doors when Yost fired ten rounds at her house, three of which entered the house.
[8] A third volley of gunshot rounds began approximately eight to ten minutes after the sеcond volley. The third volley included four rounds which Det. Brink believed were fired from the back of Yost‘s house towards other officers who had taken up position there. After the third volley ended, Det. Brink saw Yost open a window at the front of the house, yell something, and then close thе window after Det. Brink called for Yost to show him his hands. Approximately ten minutes after the third volley, Yost fired another single gunshot toward the alley behind his and Glaser‘s houses. Then a special weapons and tactics (“SWAT“) team arrived and ordered Yost to exit his house. Yost compliеd and was arrested.
[9] From this incident, Yost was charged with five separate offenses. Counts I and III were based on the second volley of gunshot rounds fired at Glaser‘s house and into the sidewalk and street in front of Yost‘s house, respectively. Count II was based on a round of gunshots hitting Lexington Avenue after passing Det. Brink during one of the first three volleys. Count IV stemmed from the first volley of gunshot rounds fired at the sidewalk and street between Det. Brink and Officer Brown. And, Count V was based on the single gunshot fired into the alley between Yost‘s and Glaser‘s house approximately ten minutes after the third vоlley.
[10] At the sentencing hearing, the State also presented evidence of Yost‘s extensive criminal history. The trial court sentenced Yost to an aggregate fifteen-year term of imprisonment. Specifically, the court sentenced Yost to six years each on Counts I and III with both counts running concurrently; three years on Count II, which was to run concurrently with all other counts; six years on Count IV to be served consecutively to Counts I and III; and three years on Count V to be served consecutively to Count IV. Yost now appeals his convictions and his sentence.
Discussion and Decision
Appeal of Convictions
[11] Yost directly appeals his convictions as violations of the constitutional prohibition against double jeopardy, despite the fact that he pled guilty to all five convictions. However, it is well-settled that a conviction based on a guilty plea may not be challenged by direct appeal, Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996); rather, it must be challenged through a petition for post-conviction relief, Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). As we recently explained in Hoskins v. State, there are
[t]wo exceptions to the prohibition on challenging a guilty plea on direct appeal.... First, a person who pleads guilty is entitled to contest on direct appeal the merits of a trial court‘s sentencing decision where the trial court exercised sentencing discretion. Collins v. State, 817 N.E.2d 230 (Ind. 2004). Further, a person who pleads guilty is entitled to contest on direct appeal the trial court‘s discretion in denying withdrawal of the guilty plea prior to sentencing. Brightman v. State, 758 N.E.2d [41, 44 (Ind. 2001)].
143 N.E.3d 358, 360 (Ind. Ct. App. 2020) (emphasis added) (quoting Creekmore v. State, 853 N.E.2d 523, 532-33 (Ind. Ct. App. 2006), clarified on denial of reh‘g, 858 N.E.2d 230). See also Hayes v. State, 906 N.E.2d 819, 821 n.1 (Ind. 2009) (noting that, under Tumulty v. State, Hayes could not have directly appealed his conviction because he pled guilty, and holding the Court of Appeals acted contrary to Tumulty when it reversed Hayes‘s conviction sua sponte); Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002) (reaching same conclusion within the context of a direct appeal based on double jeopardy grounds). Neither exception discussed in Hoskins apрlies here; therefore, Yost may not challenge his convictions through a direct appeal.
[12] Yost asserts that the inability to bring a direct appeal of a conviction to which a defendant pled guilty applies only when there is a plea agreement, not when there is an “open” guilty plea, such as his, where the trial court is left with sentencing discretion. E.g., Collins, 817 N.E.2d at 231. However, the cases Yost cites are either inapplicable2 or contrary to Indiana Supreme Court precedent.3
[13] Because Yost‘s challenge to his convictions cannot be brought on direct appeal, we dismiss his appeal of his convictions without prejudice as to his ability to presеnt his claim in a petition for post-conviction relief. See Hoskins, 143 N.E.3d at 361.
Consecutive Sentences
[14] Yost also challenges his sentence, and that is a challenge that he may—indeed, must—raise in a direct appeal, if at all. Kling v. State, 837 N.E.2d 502, 504 (Ind. 2005) (citing Collins, 817 N.E.2d at 230). Specifically, Yost contends that the trial court erred when it imposed consecutive terms of imprisonment that exceeded the maximum term allowed under
[15] Unless a defendant‘s offenses are crimes of violence as defined by statute,4
recklessness. Thеrefore, the only question is whether Yost‘s crimes were part of a “single episode of criminal conduct” for which his consecutive sentence must be limited to seven years.
[16] An “episode of criminal conduct” is defined as “offenses or a connected series of оffenses that are closely related in time, place, and circumstance.”
[17] Both the Supreme Court and this court have held that criminal actions that were not “precisely simultaneous or contemporaneous” but took place only seconds or minutes apart were a single episode of criminal conduct. See Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006) (hоlding rounds of gunshots that were fired a few seconds apart at two different officers in two different cars were a single episode); see also Harris, 861 N.E.2d at 1188 (holding sexual acts against two different victims that took place five minutes apart in the same location were a single episode of criminal conduct); Dimmit v. State, 25 N.E.3d 203, 219 (Ind. Ct. App. 2015) (holding two batteries occurring during a bar fight within a few minutes of each other and against two different victims were a single episode), trans. denied; Henson v. State, 881 N.E.2d 36, 39 (Ind. Ct. App. 2008) (holding two burglaries of different garages in the same morning were a single episode of criminal conduct), trans. denied.5
[18] Here, Yost fired multiple rounds of gunshots within minutes of each other. The rounds were fired at different people but from the same location and apparently for the same reason—i.e., Yost contended he was experiencing withdrawal symptoms because he had stopped taking his mental health medication. The multiple rounds of gunfire took place within a total period of twenty minutes, which is a relatively short period of time. See Purdy, 727 N.E.2d at 1092 (holding defendant‘s assault of girlfriend and subsequent acts of resisting arrest and battery of the police were a single еpisode of criminal conduct as they took place during “a relatively short period of time and all were related to his assault on [his girlfriend]“). The four rounds of gunfire were a “connected series of offenses that [were] closely related in time, place, and circumstance,” i.e., a single episode of criminal conduct.6
court erred in imposing an aggregate sentence in excess of seven years.
Conclusion
[19] Because Yost‘s challenge to his convictions cannot be brought on direct appeal given his guilty plea, we dismiss his appeal of his convictions without prejudice as to his ability to present his claim in a petition for post-conviction relief. However, we reverse Yost‘s sentence and remand with instructions for the trial court to limit the aggregate term of imprisonment to not more than sеven years per
[20] Dismissed in part, reversed and remanded in part.
Crone, J., and Altice, J., concur.