Curtis Ray Brock v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited Aug 30 2013, 5:33 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK K. PHILLIPS GREGORY F. ZOELLER
Boonville, Indiana Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CURTIS RAY BROCK, )
)
Appellant-Defendant, )
)
vs. ) No. 87A05-1303-CR-121
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WARRICK CIRCUIT COURT
The Honorable David O. Kelley, Judge
Cause No. 87C01-1107-FD-314
August 30, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Curtis Ray Brock appeals the one-year and 180-day sentence imposed by the trial
court for one count of Class A misdemeanor battery and one count of Class B
misdemeanor battery. We affirm.
Issue
The sole restated issue before us is whether the trial court properly ordered the
sentences for Brock’s two convictions to run consecutively.
Facts
On July 11, 2011, the State charged Brock with one count of Class D felony
battery and one count of Class B misdemeanor battery against two different individuals.1
On December 17, 2012, Brock pled guilty to both counts as charged. At the sentencing
hearing on February 11, 2013, defense counsel argued that the sentences for the offenses
should be served concurrently because “it’s a single episode of conduct . . . .” Tr. II, p. 5.
The trial court disagreed. It entered judgment of conviction for the Class D felony charge
as a Class A misdemeanor and sentenced Brock to an executed term of one year on that
count. For the Class B misdemeanor charge, the trial court ordered a term of 180 days
suspended to probation, to be served consecutive to the one-year executed term. Brock
now appeals.
1
The facts underlying these charges are absent from the record provided to this court, except that both
batteries were committed against minors. Brock relates additional purported facts regarding the offenses
in his brief and claims that they are contained in the appendix via the presentence report. In fact, they are
not; the presentence report refers to the probable cause affidavit for additional information regarding the
circumstances of the offenses, but the affidavit is not in the appendix.
2
Analysis
On appeal, Brock argues that the imposition of consecutive sentences violated the
continuous crime doctrine. That doctrine “essentially provides that actions that are
sufficient in themselves to constitute separate criminal offenses may be so compressed in
terms of time, place, singleness of purpose, and continuity of action as to constitute a
single transaction.” Borum v. State, 951 N.E.2d 619, 629 (Ind. Ct. App. 2011). The
doctrine is a category of Indiana’s prohibition against double jeopardy that precludes the
State from convicting a defendant multiple times for the same continuous offense.
Walker v. State, 932 N.E.2d 733, 736-37 (Ind. Ct. App. 2010).
The State notes that Brock did not make this argument before the trial court.
Instead, Brock’s attorney referred to the two offenses being “a single episode of conduct .
. . .” Tr. II, p. 5. The “single episode of criminal conduct” rule is a statutory limitation
on the imposition of consecutive sentences. Harris v. State, 861 N.E.2d 1182, 1185 (Ind.
2007) (citing Ind. Code § 35-50-1-2(c)).2 The continuous crime doctrine, by contrast, is a
limitation on the number of convictions the State may obtain against a defendant, not a
sentencing limitation. See Walker, 932 N.E.2d at 736-37. Thus, it is true that Brock
makes a substantively different argument on appeal than he did before the trial court.
It also is true that Brock pled guilty to both batteries, which generally would
preclude any double jeopardy challenge to either conviction, to the extent he is making
2
We also note that to the extent trial counsel argued that the “single episode of criminal conduct” rule
barred the imposition of consecutive sentences, that statutory-based rule does not apply to a defendant,
like Brock, convicted only of misdemeanors. See Dunn v. State, 900 N.E.2d 1291, 1292 (Ind. Ct. App.
2009).
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such a challenge. See Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002). This court has
not strictly applied this rule and has allowed double jeopardy challenges to multiple
convictions following a guilty plea when a defendant pleads guilty as charged without the
benefit of a plea agreement that resulted in reduced or dismissed charges or a limitation
or cap on sentencing. See McElroy v. State, 864 N.E.2d 392, 396 (Ind. Ct. App. 2007),
trans. denied. Brock did plead guilty as charged with no plea agreement and no benefit to
him in doing so. However, even if we were to countenance Brock’s continuous crime
doctrine argument, it plainly is unavailing. Double jeopardy principles, including the
continuous crime doctrine, do not apply when multiple victims are involved. Frazier v.
State, 988 N.E.2d 1257, 1264 (Ind. Ct. App. 2013). Because the battery charges
concerned different victims, convictions on both counts do not violate the continuous
crime doctrine. See id.
Brock also seems to argue that his sentence of one year executed for the Class A
misdemeanor, plus 180 days suspended to probation for the Class B misdemeanor,
exceeds the parameters of Indiana Code Section 35-50-3-1(b). That statute provides that
if a trial court suspends a sentence for a Class A, B, or C misdemeanor, the trial court
may place a defendant on probation for not more than one year, but that a combined term
of imprisonment and probation for a misdemeanor cannot exceed one year. Brock,
however, was properly convicted of two misdemeanors, not “a” misdemeanor. He cites
no authority for the proposition that a term of imprisonment and/or probation cannot
exceed one year when there are multiple misdemeanor convictions. In any event, such a
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proposition would directly conflict with the well-settled authority of trial courts to order
misdemeanor sentences to run consecutively. See Cuyler v. State, 798 N.E.2d 243, 246
(Ind. Ct. App. 2003) (citing I.C. § 35-50-1-2), trans. denied. Brock’s sentence does not
violate the statutory limit on misdemeanor sentences.
Conclusion
Brock’s two battery convictions do not violate the continuous crime doctrine, and
his sentence of one year executed plus 180 days suspended to probation does not violate
statutory authority. We affirm.
Affirmed.
CRONE, J., and PYLE, J., concur.
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