Robert L. SLONE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 17A03-1312-CR-496
Court of Appeals of Indiana.
June 13, 2014.
969
Finally, to the extent that Young‘s conviction could be viewed as a sua sponte amendment to the charging information by the trial court, we conclude that such an amendment would be error. Amendments to charging information are governed by
Conclusion
Concluding it was error, under these circumstances, for the trial court to convict Young of attempted aggravated battery as a lesser included offense of murder, we reverse.
Reversed.
RILEY, J., and BRADFORD, J., concur.
Adam C. Squiller, Squiller & Hardy, Auburn, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BRADFORD, Judge.
CASE SUMMARY
On December 17, 2012, Appellant-De-
On May 6, 2013, Appellee-Plaintiff the State of Indiana (the “State“) charged Slone under Cause Number 17D02-1305-FC-13 (“Cause No. FC-13“) with one count each of Class C felony burglary, Class D felony theft, and Class D felony receiving stolen property. On August 2, 2013, the State charged Slone under Cause Number 17D02-1308-FB-15 (“Cause No. FB-15“) with one count of Class B felony burglary, one count of Class D felony receiving stolen property, one count of Class C felony attempted burglary, and two counts of Class C felony burglary. The State also alleged that Slone was a habitual offender.
Slone subsequently pled guilty to one count of Class C felony burglary under Cause No. FC-13 and two counts of Class C felony burglary under Cause No. FB-15. The trial court sentenced Slone to an aggregate twenty-four-year sentence. On appeal, Slone contends that the trial court abused its discretion in sentencing him, claiming that the three thefts for which he was convicted arose from a single episode of criminal conduct. We affirm.
FACTS AND PROCEDURAL HISTORY
On December 17, 2012, Slone broke and entered into the building or structure of Julia Hobbs with the intent to commit theft therein. On April 23, 2013, Slone broke and entered into the building or structure, specifically, the garage, of Elizabeth Walker with the intent to commit theft therein. On May 4, 2013, Slone broke and entered into the building or structure of Merrill Hunter with the intent to commit theft therein. Each of the three break-ins occurred in DeKalb County.
On May 6, 2013, the State charged Slone under Cause No. FC-13 with one count each of Class C felony burglary, Class D felony theft, and Class D felony receiving stolen property. On August 2, 2013, the State charged Slone under Cause No. FB-15 with one count of Class B felony burglary, one count of Class D felony receiving stolen property, one count of Class C felony attempted burglary, and two counts of Class C felony burglary. The State also alleged that Slone was a habitual offender.
On November 20, 2013, the trial court conducted a combined guilty plea hearing for Cause Nos. FC-13 and FB-15. During this guilty plea hearing, the State requested, and was granted, permission to amend the Class B felony burglary count in Cause No. FB-15 to Class C felony burglary. Under Cause No. FC-13, Slone pled guilty to one count of Class C felony burglary. Under Cause No. FB-15, Slone pled guilty to two counts of Class C felony burglary. In exchange for Slone‘s guilty pleas, the State agreed to dismiss all remaining charges under both Cause No. FC-13 and Cause No. FB-15. Pursuant to the terms of the plea agreement, sentencing was left to the discretion of the trial court.
On December 19, 2013, the trial court sentenced Slone to a term of eight years for each of the Class C felony burglary counts to which Slone pled guilty. The trial court specifically found that Slone‘s criminal actions did not arise out of a single episode of criminal conduct and ordered that the sentences for each of the counts “shall run consecutive to one another,” for an aggregate term of twenty-four
DISCUSSION AND DECISION
Slone contends that the trial court abused its discretion in sentencing him to an aggregate term of twenty-four years. Specifically, Slone claims that the burglaries arose from a single episode of criminal conduct, and, as a result, his sentence should have been limited to no more than ten years. Alternatively, Slone claims that even if all three of the burglaries did not arise from a single episode of criminal conduct, his aggregate sentence should have been limited to eighteen years because the April 23, 2013 and May 4, 2013 burglaries arose from a single episode of criminal conduct as they were of a relatively close temporal proximity.
In general, a trial court cannot order consecutive sentences in the absence of express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind.2006). “‘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.‘” Id. (quoting Rhodes v. State, 698 N.E.2d 304, 307 (Ind.1998)). “An appellate claim of sentencing error is subject to review for abuse of trial court discretion; reversal results ‘only if there has been a manifest abuse of discretion.‘” Reynolds v. State, 657 N.E.2d 438, 440 (Ind.Ct.App.1995) (quoting Fugate v. State, 608 N.E.2d 1370, 1374 (Ind.1993)).
In determining whether multiple offenses constitute an episode of criminal conduct, the focus is on the timing of the offenses and the simultaneous and contemporaneous nature, if any, of the crimes.” [Reed, 856 N.E.2d at 1200]. “[A]dditional guidance on the question” can be obtained by considering “whether ‘the alleged conduct was so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to the details of the other charge.‘” Id. (quoting O‘Connell v. State, 742 N.E.2d 943, 950-51 (Ind.2001)).
Williams v. State, 891 N.E.2d 621, 631 (Ind.Ct.App.2008). “Whether certain offenses constitute a ‘single episode of criminal conduct’ is a fact-intensive inquiry” to be determined by the trial court. Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind.2002).
The burglaries at issue in the instant matter were not simultaneous or continuous. The factual basis provided by Slone at the guilty plea hearing demonstrates that Slone broke and entered into the building or structure of Hobbs with the intent to commit theft on December 17, 2012; the garage of Walker with the intent to commit theft on April 23, 2013; and the building or structure of Hunter on May 4, 2013. (Tr. 17-18) The first and second burglaries were separated by approximately four months, and the second and third burglaries were separated by a few weeks. The trial court took the separation in time under consideration at sentencing, finding that “while there are common elements between the crimes committed, they are
Furthermore, we are unpersuaded by Slone‘s assertion that the fact that the State sought to join Cause Nos. FC-13 and FB-15 for trial purposes indicates that Slone‘s crimes arose from a single episode of criminal conduct.
Before Slone decided to plead guilty, the State moved to join Cause Nos. FC-13 and FB-15 for trial. In requesting that Cause Nos. FC-13 and FB-15 be joined for trial, the State argued that the burglaries displayed a common modus operandi. The State did not argue that the burglaries arose out of a single episode of criminal conduct. We have previously stated that while the phrase “episode of criminal conduct” may involve somewhat similar language to
In sum, we conclude that the trial court did not abuse its discretion in sentencing Slone.
The judgment of the trial court is affirmed.
RILEY, J., and ROBB, J., concur.
Randolph KELLEY, Appellant,
v.
STATE of Indiana and Paige A. Devlin, Appellees.
No. 02A03-1308-CR-329.
Court of Appeals of Indiana.
June 13, 2014.