Keith Gwaltney v. State of Indiana (mem. dec.) ( 2017 )

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.
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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.
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[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
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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.
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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.
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