Armando Gonzalez, Jr. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing May 16 2017, 8:23 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Alexander L. Hoover Curtis T. Hill, Jr.
Law Office of Christopher G. Walter, Attorney General of Indiana
P.C.
Nappanee, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Armando Gonzalez, Jr., May 16, 2017
Appellant-Defendant, Court of Appeals Case No.
20A03-1608-CR-2110
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff Shewmaker, Judge
Trial Court Cause No.
20C01-1311-FB-131
May, Judge.
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[1] Armando Gonzalez, Jr., appeals the sentence he received following our remand
for him to be resentenced. As Gonzalez has not demonstrated the sentence
imposed by the trial court is “illegal,” (Appellant’s Br. at 4), we affirm.
Facts and Procedural History
[2] When Gonzalez’s case was before us in 2016, we explained:
The State charged Gonzalez with five Class B felonies: robbery
while armed with a deadly weapon, burglary, criminal
confinement, conspiracy to commit burglary, and unlawful
possession of a firearm by a serious violent felon. A jury found
Gonzalez guilty of the first four charges. In a second stage of the
trial, the court found Gonzalez guilty of unlawful possession of a
firearm by a serious violent felon.
On March 12, 2015, over the State’s objection, the trial court
reduced the robbery and criminal confinement convictions to
Class C felonies because of double jeopardy concerns. It
sentenced Gonzalez to eight years for each Class C felony and
ordered the sentences served consecutively, for a total of sixteen
years. The trial court then sentenced Gonzalez to fifteen years
for each Class B felony to be served consecutively, for a total of
forty-five years. Gonzalez’s aggregate sentence was sixty-one
years.
Gonzalez v. State, No. 20A03-1504-CR-133, slip op. at *2 (Ind. Ct. App. Jan. 12,
2016) (footnotes omitted).
[3] Gonzalez challenged the order that he serve three of his sentences
consecutively, and the State cross-appealed the court’s decision to reduce
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Gonzalez’s convictions of robbery and criminal confinement to Class C
felonies. Id. at *1. We did not address Gonazalez’s issue. Instead, we
remanded for resentencing after addressing the State’s cross-appeal:
The trial court erred when it reduced Gonzalez’s conviction for
robbery and criminal confinement from Class B to Class C
felonies based on double jeopardy concerns. Accordingly, we
remand for resentencing with the convictions of robbery and
criminal confinement as Class B felonies.
Id. at *3 (footnote omitted).
[4] On remand, the trial court held a hearing, at which no new evidence was
submitted, and resentenced Gonzalez for five Class B felony convictions. The
court ordered Gonzalez to serve consecutive sentences of fifteen years for
robbery, sixteen years for burglary, ten years for confinement, ten years for
conspiracy to commit burglary, and ten years for possession of a firearm by a
serious violent felon. Thus, Gonzalez’s aggregate sentence was again 61 years.
Discussion and Decision
[5] In his Summary of Argument, Gonzalez asserts
the trial court then modified the length of the sentence on
[robbery] and [confinement] without any direction from the
Court of Appeals and without any further evidence being
admitted. This clearly was error. While it was necessary for the
trial court to follow the directive of the Court of Appeals to
amend [those counts] to Class B Felonies, there was no
discernible reason to modify the length of the sentences . . . .
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(Appellant’s Br. at 6.)
[6] First, contrary to Gonzalez’s argument, our opinion did, in fact, give the trial
court authority to modify the sentence lengths. We wrote that we were
remanding “for resentencing with the convictions of robbery and criminal
confinement as Class B felonies.” Gonzalez, No. 20A03-1504-CR-133 at *3. If
we had wanted the trial court to simply enter a new order that called those
crimes Class B felonies, as Gonzalez asserts, we would have told the trial court
to enter a new order without resentencing Gonzalez. See, e.g., O’Connell v. State,
742 N.E.2d 943, 952 (Ind. 2001) (remanding for “a new sentencing order”
because the original sentencing order did not explain the court’s basis for the
sentence).1 But we did not use that language; we ordered the trial court to
“resentenc[e]” him. Gonzalez, No. 20A03-1504-CR-133 at *3.
[7] Second, we disagree “there was no discernible reason for the trial court to
increase the sentence on [robbery] by seven (7) years and the sentence on
[confinement] by two years.” (Appellant’s Br. at 10.) The discernible reason is
that Gonzalez’s convictions are now of Class B, rather than Class C, felonies.
When Gonzalez committed his crimes in 2013, the sentencing range for a Class
C felony was two to eight years, with the advisory sentence being four years,
1
Gonzalez relies on O’Connell as a complete list of “the options available to a trial court when an appellate
court sends a cause back to it for resentencing.” (Appellant’s Br. at 9.) However, the Supreme Court
remanded O’Connell’s case to the trial court for a new sentencing order that merely explained how the court
arrived at O’Connell’s sentence; the Supreme Court did not order O’Connell be resentenced. See O’Connell,
742 N.E.2d at 952-53. Thus, O’Connell does not control the extent of the trial court’s authority when
resentencing Gonzalez.
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Ind. Code § 35-50-2-6 (2005), and the sentencing range for a Class B felony was
six to twenty years, with the advisory sentence being ten years. Ind. Code § 35-
50-2-5 (2005). The trial court, based on its weighing of the aggravators and
mitigators, had imposed maximum sentences of eight years when the
convictions were entered as Class C felonies, and it therefore makes sense that,
when resentencing Gonzalez for crimes that were one felony class higher, the
trial court would wish to impose sentences that were at or above the advisory
sentence. Cf. Lane v. State, 727 N.E.2d 454, 457 (Ind. Ct. App. 2000) (when
appellate court remanded for correction of Lane’s sentence, because trial court
had imposed a fifty-year presumptive sentence after statutory change had made
the presumptive sentence only forty years, trial court was required to enter the
presumptive sentence when resentencing, even though presumptive was ten
years shorter).
[8] Finally, Indiana law provides that
on resentencing after the reversal of a conviction in a multicount
proceeding, the trial court has “flexibility upon remand,
including the ability to increase sentences for individual
convictions without giving rise to a presumption of vindictive
sentencing, so long as the aggregate sentence is no longer than
originally imposed.” In so holding, we explained that “a trial
court is likely to view individual sentences in a multi-count
proceeding as part of an overall plan, a plan that can be
overthrown if one or more of the convictions is reversed or
reduced in degree.”
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Guffey v. State, 42 N.E.3d 152, 163 (Ind. Ct. App. 2015) (internal citations
omitted), trans. denied. If trial courts have the flexibility on remand to increase
sentences for remaining convictions when one conviction has been reversed, see
also Hmurovic v. State, 43 N.E.3d 685, 689 (Ind. Ct. App. 2015) (remanding to
vacate conviction and resentence on the remaining conviction), it would be
illogical to hold trial courts did not have the same flexibility after we required
the trial court to enter certain convictions as more serious felonies.
[9] For all these reasons, we find no error in the trial court imposing a fifteen-year
sentence for Gonzalez’s conviction of Class B felony robbery and a ten-year
sentence for Gonzalez’s conviction of Class B felony criminal confinement.
Accordingly, we affirm.
[10] Affirmed.
Najam, J., and Bailey, J., concur.
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