Kenneth Akers v. State of Indiana ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
FILED
Indianapolis, Indiana
Mar 13 2012, 9:31 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
KENNETH AKERS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1106-CR-313
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Christina Klineman, Commissioner
Cause No. 49G05-1103-FC-018806
March 13, 2012
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Following a jury trial, Kenneth Akers was convicted of battery, resisting law
enforcement, and possession of paraphernalia, all Class A misdemeanors. He was sentenced
to one year in prison for each conviction, with the sentences for battery and resisting law
enforcement to be served concurrently to each other and consecutive to his possession of
paraphernalia sentence. Akers raises one issue for our review: whether Indiana Code section
35-50-1-2 violates the Equal Protection Clause of the United States Constitution or Article 1,
Section 23 of the Indiana Constitution because the statute limits the imposition of
consecutive sentences when someone is convicted of at least one felony, but no such statute
exists limiting the imposition of consecutive sentences for those convicted of only
misdemeanors. The State raises two issues for our review: whether Akers has waived the
challenge he now brings, and whether Akers‟ three convictions were part of an episode of
criminal conduct as Indiana Code section 35-50-1-2 requires. Concluding Akers‟ convictions
did not arise out of an episode of criminal conduct and he therefore lacks standing to
challenge the constitutionality of Indiana Code section 35-50-1-2, we affirm Akers‟
convictions.
Facts and Procedural History
In March 2011, Akers, along with Desean Arnold and an unidentified man, walked by
an older gentleman, Larry Johnson, who was walking along the side of a street. Johnson had
just returned from cashing a check and was showing a friend the money he received. Akers
and Arnold returned a few minutes later, grabbed Johnson, and threw him into a three-foot
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ditch along the road. Indianapolis Metropolitan Police Officer Robert McCauley was
watching from across the street in his police vehicle. Officer McCauley immediately
activated his emergency lights and siren and drove across the street. Akers and Arnold ran
into a nearby apartment and Officer McCauley chased them on foot. Officer McCauley
found Arnold near the front door and discovered Akers down the hallway and around a
corner. Afterwards, Johnson realized his money was gone and he suffered shoulder and neck
pain from the incident. When Akers was searched, a small bag of marijuana was found at his
feet and rolling papers were found in his wallet.
The State charged Akers with attempted robbery, a Class C felony; battery, resisting
law enforcement, possession of paraphernalia, and possession of marijuana, all Class A
misdemeanors; and possession of marijuana, a Class D felony. The State added an habitual
offender charge, but it subsequently dismissed the habitual offender allegation and
possession of marijuana charges. The jury found Akers not guilty of attempted robbery and
guilty of battery, resisting law enforcement, and possession of paraphernalia. The trial court
sentenced Akers to one year in prison for each conviction, but ordered the battery and
resisting law enforcement convictions to be served concurrent with each other and
consecutive to the sentence for possession of paraphernalia, resulting in an aggregate
sentence of two years. Akers now appeals.
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Discussion and Decision1
I. Standard of Review
Our standard of review is well-settled when statutes are challenged as violating the
Indiana Constitution. “A statute is presumed constitutional until the party challenging its
constitutionality clearly overcomes the presumption by a contrary showing.” Sims v. United
States Fidelity & Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003). “The party challenging the
constitutionality of the statute bears the burden of proof, and all doubts are resolved against
that party.” Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996). Preliminarily, a
party must have standing. Gross v. State, 506 N.E.2d 17, 21 (Ind. 1987). To have standing
to challenge the constitutionality of a statute, an appellant must establish that his rights were
adversely affected by the statute. Id.II. Waiver
The State argues Akers‟ constitutional challenge is waived because prior to his appeal
he never raised an argument that the sentencing limitation in Indiana Code section 35-50-1-
2(c) for non-violent episodes of criminal conduct should apply to him. However, “the
constitutionality of a statute may be raised at any stage of the proceeding,” and may even be
raised sua sponte by this court. Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992). Thus,
Akers‟ constitutional challenge is not waived.
III. Standing
1
We heard Oral Argument in Indianapolis, Indiana, on February 16, 2012, and we thank counsel for
their capable advocacy.
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After providing courts with the discretion to determine whether terms of imprisonment
shall be served concurrently or consecutively, Indiana Code section 35-50-1-2 provides:
However, except for crimes of violence, the total of the consecutive terms of
imprisonment . . . to which the defendant is sentenced for felony convictions
arising out of an episode of criminal conduct shall not exceed the advisory
sentence for a felony which is one (1) class of felony higher than the most
serious of the felonies for which the person has been convicted.
The section also defines which crimes constitute a “crime of violence” and defines “episode
of criminal conduct” as “offenses or a connected series of offenses that are closely related in
time, place, and circumstance.” Ind. Code § 35-50-1-2(a), (b). None of Akers‟ convictions
are crimes of violence.
The application of Indiana Code section 35-50-1-2 has been clarified by this court and
our supreme court. In Purdy v. State, 727 N.E.2d 1091, 1094 (Ind. Ct. App. 2000), trans.
denied, where Purdy was convicted of one Class D felony and two Class A misdemeanors,
we stated the statute is ambiguous in that while it does require the defendant be sentenced for
felony convictions, it does not express whether the defendant could also have been sentenced
for misdemeanor convictions. We concluded the statute does apply in cases where a
defendant is sentenced for both felony and misdemeanor convictions. Id. In Dunn v. State,
900 N.E.2d 1291, 1291 (Ind. Ct. App. 2009), Dunn was not convicted of any felonies, but
rather, of three Class A misdemeanors. We concluded Indiana Code section 35-50-1-2 does
not apply in such circumstances because it unambiguously requires that a defendant be
sentenced for felony convictions in order for his or her sentence to fall within the section‟s
purview. Id. at 1292.
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We have also clarified the requirement under the statute that the offenses result from
one “episode of criminal conduct,” although not without some inconsistency. A split has
developed on this court in regard to when crimes of possession are part of an episode of
criminal conduct. In Ratliff v. State, 741 N.E.2d 424, 428 (Ind. Ct. App. 2000), trans.
denied, Ratliff attempted to evade police after they tried to pull him over for driving
erratically. After driving into a cornfield, officers discovered Ratliff lying in the field with a
bag full of marijuana. Ratliff was convicted of OWI, possession of marijuana, and resisting
law enforcement, and this court concluded the OWI and resisting law enforcement were part
of an episode of criminal conduct, but the possession conviction was a separate and distinct
act which did not “bear a direct relation to the others.” Id. at 434. Thus, we held the trial
court was not limited by Indiana Code section 35-50-1-2 in sentencing Ratliff. Id.In Johnican v. State, 804 N.E.2d 211 (Ind. Ct. App. 2004), the court disagreed with
the majority but agreed with Judge Mathias‟s dissent in that case, holding that when “a
defendant possesses contraband on his person as he simultaneously commits other criminal
offenses, the offenses should be deemed part of a single episode of criminal conduct.” Id. at
218. In that case, two officers observed Johnican walking across a street and ordered him to
stop because they knew there was an outstanding warrant for Johnican‟s arrest. Johnican
disobeyed the order and kept moving, and soon thereafter pulled out a gun and attempted to
shoot the officers. After several gunshots were fired by Johnican and the officers, Johnican
was taken to the hospital after an officer shot him in the chest. While at the hospital, cocaine
was discovered in Johnican‟s clothing. “When detectives questioned Johnican about the
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incident with Officers Hoehn and Day, he told them that the reason he ran from the police
was because he had some cocaine in his possession and did not want to go back to jail.” Id.
at 213. He was convicted of possession of cocaine, pointing a loaded firearm at another
person, and resisting law enforcement, and he was determined to be an habitual offender. Id.This court concluded the consecutive sentencing limitation in Indiana Code section 35-50-1-
2 applied to Johnican, but because his consecutive sentence was already less than the
maximum consecutive sentence permitted by that statute, we concluded the trial court did not
violate the statute.
In Cole v. State, 850 N.E.2d 417, 423 (Ind. Ct. App. 2006), we also held that
possessing an illegal substance while resisting law enforcement was part of an episode of
criminal conduct. In that case, police officers spotted Cole and attempted to conduct a traffic
stop because he had an outstanding warrant for his arrest for being an habitual traffic
offender. Id. at 418. However, Cole fled in his vehicle and led the police on a half-hour
chase. Id. Once Cole was apprehended, police discovered a tank containing anhydrous
ammonia in Cole‟s vehicle which Cole planned to use in the manufacture of
methamphetamine. Id. Cole pleaded guilty to resisting law enforcement, possession of
chemical reagents or precursors with intent to manufacture methamphetamine, and being an
habitual offender. Id. This court concluded Cole‟s convictions arose from an episode of
criminal conduct, and, thus, that his consecutive sentence required reduction because it
exceeded the maximum consecutive sentence permitted by Indiana Code section 35-50-1-2.
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In our most recent case, Deshazier v. State, 877 N.E.2d 200, 204 (Ind. Ct. App. 2007),
trans. denied, Deshazier was convicted of carrying a handgun with a prior felony, a Class C
felony; two counts of resisting law enforcement, one a Class D felony and one a Class A
misdemeanor; and possession of marijuana, a Class A misdemeanor. The facts of the case
are similar to those before us today: during a traffic stop police officers discovered Deshazier
had a gun, Deshazier ran from the police, and police found marijuana in Deshazier‟s jacket
that he left at the scene when he fled. Id. at 203. After noting this court‟s split of authority
and our supreme court‟s emphasis on the timing of the offenses,2 we reasoned that “no
evidence exists as to when Deshazier came into possession of the handgun or marijuana.
Possession is inherently a „continuing offense,‟ which occurs from the time the defendant
comes into possession of the contraband until the time he relinquishes control.” Id. at 212.
We thus held the possession convictions were not part of an episode of criminal conduct with
Deshazier‟s convictions for resisting law enforcement. Id.Here, Akers‟ possession of paraphernalia conviction is related to his other convictions
only in the sense that his possession was discovered by police officers immediately after or
during his other criminal acts. However, as in Deshazier, it is unclear from the evidence
2
See Reed v. State, 856 N.E.2d 1189, 1200-01 (Ind. 2006) (“The record . . . shows that the time lapse
between the first and last shots fired was approximately five seconds. It was on the basis of these gunshots that
Reed was charged with two counts of attempted murder. And although not precisely „simultaneous‟ or
„contemporaneous,‟ the two offenses were nonetheless „closely connected in time, place, and circumstance.‟”)
(citations omitted); see also Harris v. State, 861 N.E.2d 1182, 1188-89 (Ind. 2007) (Reviewing a prior Indiana
Court of Appeals case, Harris v. State, 749 N.E.2d 57 (Ind. Ct. App. 2001), trans. denied, for ineffective
assistance of counsel, the court stated “[t]he crimes were committed in the same bed only a few minutes apart.
Two acts of sexual misconduct which occurred five minutes apart in the same bed and based on the same
reason – the girls‟ need for a place to stay for the night – are „a connected series of offenses that are closely
connected in time, place, and circumstance.‟”).
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when Akers came into possession of the paraphernalia, making the timing of the offenses
more distinguishable than at first glance. Further, unlike in Johnican, where the criminal
actions of resisting law enforcement and pointing a firearm at another person resulted largely
due to Johnican‟s possession of cocaine, here there is no evidence to suggest that Akers‟
battery of the victim or resisting arrest were fueled by his possession of paraphernalia. Thus,
even putting chronological relation aside, Akers‟ conviction for possession of paraphernalia
was not related in circumstance to his other convictions. There is no nexus between the acts
of battery and the subsequent resisting arrest, and Akers‟ possession of paraphernalia. This is
not to say that possession convictions cannot be part of an episode of criminal conduct with
other convictions, but in the circumstances of this case, Akers‟ convictions are not part of an
episode of criminal conduct for the purposes of Indiana Code section 35-50-1-2.
Thus, the sentencing limitation would not apply to Akers even if it applied to
defendants convicted of only misdemeanors because his convictions did not arise out of an
episode of criminal conduct. The result of this conclusion is that Akers lacks standing to
challenge the statute. Although the total of his consecutive terms of imprisonment is two
years, which is longer than the advisory sentence for one class of felony higher than the
highest misdemeanor Akers committed, his consecutive convictions are not from an episode
of criminal conduct and the statute would therefore not apply, even if his argument was
otherwise well-taken. Thus, we need not reach his constitutional challenge because he lacks
standing.
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Conclusion
Akers‟ convictions were not part of a single episode of criminal conduct. Thus, Akers
does not have standing to challenge Indiana Code section 35-50-1-2 because the statute
would not apply to him even if it applied generally to defendants convicted of only
misdemeanors. We therefore affirm Akers‟ convictions.
Affirmed
KIRSCH, J., and BRADFORD, J., concur.
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