Bennie Chamberlain v. State of Indiana ( 2012 )

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this Memorandum Decision shall not be FILED
regarded as precedent or cited before Jun 05 2012, 9:35 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRUCE W. GRAHAM GREGORY F. ZOELLER
Graham Law Office Attorney General of Indiana
Lafayette, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BENNIE CHAMBERLAIN, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1108-CR-770
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1004-FC-20
June 5, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Bennie Chamberlain appeals the sentence imposed after his convictions of Class C
felony stalking,1 Class C felony criminal confinement,2 Class A misdemeanor battery,3 Class
A misdemeanor invasion of privacy,4 two counts of Class D felony residential entry,5 and a
finding he is an habitual offender.6 He presents three issues for our review, two of which we
find dispositive:
1. Whether the trial court abused its discretion when it entered a sentence based
on Chamberlain’s status as an habitual offender but did not attach it to a
specific felony; and
2. Whether the trial court abused its discretion when it ordered him to serve some
of his sentences consecutively.
We reverse and remand.7
FACTS AND PROCEDURAL HISTORY
S.L. obtained a protective order against Chamberlain on March 30, 2010, and she told
Chamberlain about the order when he came to her residence that day. Chamberlain
telephoned S.L. multiple times on April 1. That night around 10:30, someone kicked in
1
Ind. Code § 35-45-10-5(b).
2
Ind. Code § 35-42-3-3(b).
3
Ind. Code § 35-42-2-1(a)(1).
4
Ind. Code § 35-46-1-15.1.
5
Ind. Code § 35-43-2-1.5.
6
Ind. Code § 35-50-2-8.
7
Chamberlain also argues his sentence is inappropriate. As Chamberlain will be resentenced on remand, we
need not address that argument. See Caraway v. State, 959 N.E.2d 847, 854 n.3 (Ind. Ct. App. 2011) (analysis
of appropriateness of sentence not necessary because case was to be remanded for resentencing), trans. denied.
2
S.L.’s back door. She saw Chamberlain in her apartment, and then he ran away. She called
police, who documented the damage to her door but could not find Chamberlain.
S.L. went to a neighbor’s apartment. When she returned home shortly after midnight,
she found her apartment had been ransacked and vandalized. In addition, she found a
message in Chamberlain’s handwriting on her bedroom floor. She again called police, who
again could not find Chamberlain.
Around 2:00 a.m., as S.L. was cleaning up her apartment, Chamberlain again entered
her apartment. He took her to the bedroom and restrained her for about ten minutes, during
which he elbowed S.L. in the nose and mouth, causing a scratch and a cut. While restrained,
S.L. was able to call police, and they arrested Chamberlain and found a copy of the protective
order in his pocket.
After a bench trial Chamberlain was convicted of stalking, criminal confinement, two
counts of residential entry, battery, and invasion of privacy. Subsequently the court
determined he is an habitual offender. The court sentenced Chamberlain to six years for
Count I, Class C felony stalking; six years for Count II, Class C felony criminal confinement;
two years for Count III, Class D felony residential entry; two years for Count IV, Class D
felony residential entry; one year for Count VI, Class A misdemeanor battery; and one year
for Count VIII, Class A misdemeanor invasion of privacy.
The court ordered, “Count II shall run consecutive to Count I, Count III consecutive to
Count I, Counts IV and VI shall run concurrent with Count II; Count VIII shall run
consecutive[.]” (App. at 17.) Finally, for Chamberlain’s status as an habitual offender, the
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trial court entered a sentence of six years to be served consecutive to the sentences for his
crimes. His aggregate sentence was twenty-one years, with fifteen years incarcerated, two
years suspended to supervised probation, and four years suspended to unsupervised
probation.
DISCUSSION AND DECISION
1. Habitual Offender
An habitual offender finding does not amount to a separate crime, nor does it result in
a separate sentence. Davis v. State, 935 N.E.2d 1215, 1218 (Ind. Ct. App. 2010), trans.
denied. Rather it results in a sentence enhancement imposed on the conviction of a
subsequent felony. Id. In the event of multiple felony convictions and a finding of habitual
offender status, a trial court must impose the resulting penalty enhancement on only one
conviction, and it must specify which conviction is enhanced. Id.Chamberlain contends the trial court erred by imposing the habitual offender
enhancement as a separate sentence, and the State agrees. We accordingly remand for the
trial court to attach the enhancement to one of the felonies in a manner consistent with this
opinion.
2. Consecutive Sentences
Chamberlain also argues the court abused its discretion when it ordered consecutive
sentences for stalking, criminal confinement, residential entry, and invasion of privacy.
Generally a trial court has discretion to impose consecutive sentences based on aggravating
and mitigating circumstances. Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008).
4
This discretion is constrained, however, by Indiana Code section 35-50-1-2(c), which
provides:
The court may order terms of imprisonment to be served consecutively even if
the sentences are not imposed at the same time. However, except for crimes of
violence, the total of the consecutive terms of imprisonment, exclusive of
terms of imprisonment under IC 35-5-2-8 [habitual offender] and IC 35-50-2-
10 [habitual substance offender], 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.
Chamberlain argues all of his crimes were a single episode of criminal conduct. An
“episode of criminal conduct” is defined as “offenses or a connected series of offenses that
are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-2(b). The
singleness of a criminal episode should be based on whether the alleged offenses were so
closely related in time, place, and circumstance that a complete account of one charge cannot
be related without referring to the details of the other charge. Cole v. State, 850 N.E.2d 417,
419 (Ind. Ct. App. 2006).
The trial court ordered Chamberlain’s sentences for Class C felony stalking, Class C
felony criminal confinement, Class A misdemeanor invasion of privacy, and one of the
counts of Class D residential entry to be served consecutively. The Class A misdemeanor
invasion of privacy count was based on letters Chamberlain sent to S.L. while incarcerated
awaiting trial. The Class D residential entry count was based on Chamberlain’s entry of
S.L.’s apartment on April 1.
5
In the charging information, the State alleged Chamberlain committed stalking
“between April 1, 2010, and April 2, 2010.” (App. at 23.) At trial, the State argued the
evidence presented to prove stalking included “a course of conduct here multiple phone calls
one of which was reported on April 1st, kicking in the door April 1st, uh, the tossing of the
beef stew on April 2nd, and the battery and confinement this is definitely a course of
conduct.” (Tr. at 185.) Thus, based on the evidence presented at trial, Class C felony
stalking, one count of Class D felony residential entry, and Class C felony criminal
confinement were part of a continuing episode of criminal conduct.
Pursuant to Ind. Code § 35-50-1-2(c), the total of the consecutive terms of
imprisonment for those crimes may not exceed ten years, which is the advisory sentence for a
Class B felony. See Ind. Code § 35-50-2-5 (advisory sentence for Class B felony is ten
years). The trial court ordered Chamberlain’s two year sentence for residential entry to be
served consecutive to the six year sentence for stalking for a total sentence of eight years,
which is within the requirements of the statute.
However, the trial court also ordered Chamberlain’s six year sentence for criminal
confinement be served consecutive to the six year sentence for stalking for a total sentence of
fourteen yearsfor these three offenses, which does not comply with Ind. Code § 35-50-1-2(c).
Accordingly, we reverse the sentences for Class C felony stalking, Class C felony criminal
confinement, and Class D felony residential entry and remand to the trial court for
resentencing. On remand, the trial court may not enter sentences for these three crimes that
exceed ten years when served consecutively pursuant to Ind. Code § 35-50-1-2(c).
6
CONCLUSION
We reverse Chamberlain’s sentences for Class C felony stalking and Class C felony
criminal confinement, and Class D felony residential entry because the three crimes were part
of a single episode of criminal conduct and the total of those sentences, which were ordered
served consecutively, exceeds the ten years allowed by Ind. Code § 35-50-1-2(c). We also
must remand for the trial court to attach the habitual offender enhancement to one of
Chamberlain’s felonies. Thus we reverse Chamberlain’s sentence and remand for the court
to resentence him in a manner consistent with this opinion.
Reversed and remanded.
CRONE, J., and BROWN, J., concur.
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