Zachary L. Lewis v. State of Indiana , 2015 Ind. App. LEXIS 372 ( 2015 )

Apr 28 2015, 10:26 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Zachery L. Lewis, April 28, 2015
Appellant-Defendant, Court of Appeals Case No.
35A05-1410-CR-496
v. Appeal from the Huntington Superior
Court
State of Indiana,
The Honorable Jeffrey R.
Appellee-Plaintiff Heffelfinger, Judge
Cause No. 35D01-1407-F6-196
Najam, Judge.
Statement of the Case
[1] Zachery L. Lewis appeals his sentence following his convictions for two counts
of battery, one as a Level 6 felony, and one as a Class A misdemeanor. Lewis
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presents three issues for our review, which we consolidate and restate as the
following two issues:
1. Whether the two batteries constitute an episode of
criminal conduct under Indiana Code Section 35-50-1-2(c).
2. Whether the trial court abused its discretion when it
sentenced him.
We affirm.
Facts and Procedural History
[2] On July 24 and 25, 2014, Lewis and his live-in girlfriend, Kelsey Cohen,
engaged in a protracted and heated argument. Cohen finally went to sleep at
approximately 6:00 a.m. on July 25. At approximately 9:00 that morning,
Cohen awoke to find Lewis holding a hot hair straightening tool against her
thigh, which burned her skin. And Cohen later discovered that Lewis had
shaved off a portion of one of her eyebrows while she slept.
[3] Later on July 25, Cohen went to the home of a friend, Jacque Stephan. And at
approximately 11:00 or 11:30 that night, Lewis went to Stephan’s house to see
Cohen. Cohen and Stephan, who were inside the house, heard Lewis yelling
Cohen’s name from outside. Cohen and Stephan went outside and told Lewis
to leave, but he refused. Stephan again asked Lewis to leave, and he pushed her
to the ground. Stephen’s body struck two parked cars as she fell, and she
sustained injuries.
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[4] The State charged Lewis with two counts of battery, one as a Level 6 felony and
one as a Class A misdemeanor.1 A jury found him guilty as charged. The trial
court entered judgment of conviction accordingly and sentenced Lewis to two
and one-half years for the Level 6 felony and one year for the Class A
misdemeanor, to be served consecutively, for an aggregate term of three and
one-half years. This appeal ensued.
Discussion and Decision
Issue One: Episode of Criminal Conduct
[5] Lewis first contends that the two batteries constitute an episode of criminal
conduct. Indiana Code Section 35-50-1-2(c) provides in relevant part that,
except for crimes of violence, the total of the consecutive terms of
imprisonment to which the defendant is sentenced for multiple felony
convictions arising out of an episode of criminal conduct shall not exceed the
advisory sentence for a felony that is one class of felony higher than the most
serious of the felonies for which the person has been convicted. “Episode of
criminal conduct” means offenses or a connected series of offenses that are
closely related in time, place, and circumstance. I.C. § 35-50-1-2(b). Lewis
maintains that, because the advisory sentence for a felony that is one level
1
The Level 6 felony charge stemmed from the battery against Cohen, and the Class A misdemeanor charge
stemmed from the battery against Stephan.
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higher than a Level 6 felony is three years,2 the trial court erred when it imposed
an aggregate sentence of three and one-half years. We do not agree.
[6] Initially, we note that, effective July 1, 2014, our sentencing guidelines have
replaced “classes” of felonies with “levels” of felonies. See, e.g., Ind. Code § 35-
50-2-4. But our legislature has not revised Indiana Code Section 35-50-1-2 to
refer to “levels” of felonies instead of “classes” of felonies. This is obviously an
oversight and does not affect the applicability of Indiana Code Section 35-50-1-
2 to the sentences imposed for felonies committed on or after July 1, 2014. 3
[7] Lewis’ contention on this issue is without merit. Indiana Code Section 35-50-1-
2(c) only applies to sentencing for “multiple felony convictions.” Here, Lewis
was convicted of one felony and one misdemeanor. Thus, even if Lewis’
offenses constituted an episode of criminal conduct, which they do not, 4 the
statutory sentencing limit would not apply. The trial court did not err when it
imposed an aggregate sentence of three and one-half years.
2
Indiana Code Section 35-50-2-6(b) provides in relevant part that the advisory sentence for a Level 5 felony
is three years.
3
We note that there is legislation pending in the General Assembly that would, in relevant part, eliminate
the use of the term “class” in Indiana Code Section 35-50-1-2. See S.B. 559, 119th Gen. Assemb., Reg. Sess.
(Ind. 2015).
4
The evidence shows that the batteries occurred more than twelve hours apart at two different locations and
involved two different victims. A complete account of one of the batteries can be given without referring to
the other offense. Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995). Thus, Lewis’ crimes do not
constitute an episode of criminal conduct.
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Issue Two: Abuse of Discretion in Sentencing
[8] Lewis next contends that the trial court abused its discretion when it sentenced
him. Sentencing decisions rest within the sound discretion of the trial court and
are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218
(Ind. 2007). An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom. Id.
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the
trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Id. at 490-91.
[9] Lewis contends that the trial court abused its discretion when it sentenced him
because, he maintains, the court did not make a reasonably detailed sentencing
statement. In particular, Lewis asserts that: (1) the trial court did not
adequately identify an aggravating circumstance to support the imposition of an
enhanced sentence for the Level 6 felony conviction; and (2) the court did not
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articulate a reason for imposing consecutive sentences. We address each
contention in turn.
[10] The trial court’s written sentencing statement did not provide any explanation
for the imposition of the enhanced sentence or consecutive sentences. But, at
the conclusion of the sentencing hearing, the trial court stated as follows:
The Court incorporates, this [sic] is a previous [pre-sentence
investigation report,] and the Court incorporates it into this
sentencing hearing. You have one adjudication as a juvenile . . .
that was a battery. You have two (2) prior felonies, ten (10) prior
misdemeanors, [and] four (4) petitions to revoke [probation]. Of
your adjudications, both as a juvenile and as an adult, you have
seven (7) prior batteries, two (2) intimidations, and one (1)
resisting law enforcement. For those reasons, on Count one (1),
you are sentenced to [two and a half (2 1/2) years on the level 6
felony, and] for Count two (2), you are sentenced to . . . one (1)
year on the Class A misdemeanor. . . . The Court orders it [sic]
run consecutive to each other.
Tr. at 186-87.
[11] In Anglemyer, 868 N.E.2d at 490, our supreme court stated that,
[i]n order to facilitate its underlying goals, see Abercrombie[ v.
State, 275 Ind. 407, 417 N.E.2d 316, 319[ (1981)5], the
5
In Abercrombie, our supreme court explained that,
when the sentencing judge is required to make a statement of the reasons for imposing a
particular sentence, two important goals are served. First, the judge is confined to proper
grounds for either increasing or decreasing the presumptive sentence provided for the
offense; and, second, the appellate court is enabled to determine the reasonableness of the
sentence imposed, under the circumstances.
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[sentencing] statement must include a reasonably detailed
recitation of the trial court’s reasons for imposing a particular
sentence. If the recitation includes a finding of aggravating or
mitigating circumstances, then the statement must identify all
significant mitigating and aggravating circumstances and explain
why each circumstance has been determined to be mitigating or
aggravating.
[12] Here, in its oral sentencing statement, the trial court identified no mitigators 6
and a single aggravator, namely, Lewis’ extensive criminal history. 7 And the
trial court described Lewis’ criminal history with an emphasis on prior offenses
relevant to the instant batteries. While the trial court’s sentencing statement
lacked detail, it was sufficiently detailed to support Lewis’ enhanced sentence
for a Level 6 felony. See, e.g., Mayes v. State, 744 N.E.2d 390, 396 (Ind. 2001)
(noting that, when a defendant’s criminal history is used as an aggravating
factor to support an enhanced sentence, the trial court must recite the incidents
comprising the criminal history).
But a statement of reasons for imposing a particular sentence serves numerous other goals
beyond the two primary goals. An attempt by the sentencing judge to articulate his
reasons for a sentence in each case should in itself contribute significantly to the
rationality and consistency of sentences. A statement by the sentencing judge explaining
the reasons for commitment can help both the defendant and the public understand why
a particular sentence was imposed. An acceptance of the sentence by the defendant
without bitterness is an important ingredient in rehabilitation, and acceptance by the
public will foster confidence in the criminal justice system.
417 N.E.2d at 319 (citation omitted).
6
Lewis does not contend that the trial court abused its discretion when it did not identify any mitigators.
7
We agree with the State that the trial court’s failure to use the word “aggravator” is not fatal to its
sentencing statement. It is clear that the trial court imposed an enhanced sentence based on Lewis’ criminal
history.
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[13] However, our supreme court has “emphasized that[,] before a trial court can
impose a consecutive sentence, it must articulate, explain, and evaluate the
aggravating circumstances that support the sentence.” Monroe v. State, 886
N.E.2d 578, 580 (Ind. 2008). Here, in imposing Lewis’ sentence, the trial court
described his criminal history and merely concluded that, “[f]or those reasons,”
it was imposing the enhanced sentence on the Level 6 felony and ordering the
two sentences to run consecutively. Tr. at 186.
[14] While a single aggravator may be used both to enhance a sentence and impose
consecutive sentences, Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App.
2012), the trial court’s brief sentencing statement here lacked specificity. But
we need not remand for resentencing because the rationale for consecutive
sentences is apparent on the face of the record. Here there were two victims,
and it is well settled that “injury to multiple victims” supports the imposition of
consecutive sentences. McCann v. State, 749 N.E.2d 1116, 1120 (Ind.
2001). Given Lewis’ extensive criminal history, including four probation
violations, and the fact that Lewis committed batteries against two victims, we
are confident that the trial court would have imposed the same sentence had it
more fully articulated its reasons for imposing consecutive sentences. And we
need not remand for resentencing if we can say with confidence that the trial
court would have imposed the same sentence had it properly considered
reasons that enjoy support in the record. See, e.g., Anglemyer, 868 N.E.2d at
491. The trial court did not abuse its discretion when it sentenced Lewis.
[15] Affirmed.
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Mathias, J., and Bradford, J., concur.
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