Jacob Lumbley v. State of Indiana , 2017 Ind. App. LEXIS 151 ( 2017 )

FILED
Apr 06 2017, 10:30 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacob R. Lumbley, April 6, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1604-CR-798
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1411-F3-3
Brown, Judge.
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[1] Jacob R. Lumbley appeals his convictions and sentence for conspiracy to
commit robbery as a level 5 felony, robbery as a level 5 felony, and two counts
of criminal confinement as level 3 felonies, enhanced by the use of a firearm.
Lumbley raises three issues which we revise and restate as:
I. Whether the trial court erred by enhancing the sentences for his two
criminal confinement convictions based upon his use of a firearm;
II. Whether the trial court erred in ordering that the enhanced sentence for
each criminal confinement conviction be served consecutive to each
other; and
III. Whether double jeopardy prohibits his convictions for conspiracy to
commit robbery and robbery.
We affirm.
Facts and Procedural History
[2] During October and November 2014, Lumbley and Miguel Garcia agreed to
commit robbery. Lumbley obtained sweatshirts and masks to conceal their
identities and a gun. On November 1, 2014, Lumbley and others took property
including U.S. currency and merchandise from a Speedway in Tippecanoe
County. Lumbley took property from the clerk, Michael Reynolds, by putting
him in fear by pointing a Ruger handgun and demanding property. Lumbley
confined Reynolds without his consent by using the deadly weapon. Lumbley
pointed it and put it close to the clerk’s head and face. He also took Reynolds’
cellphone so he would not call the police and shared in the proceeds of the
robbery.
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[3] On November 5, 2014, Lumbley, Garcia, and Tiffany Mounts were together.
Lumbley took property, U.S. currency, merchandise, and cellphones from Josh
Moore and Megan Vessels, clerks at a Village Pantry, by threatening to use
force or putting them in fear. Lumbley also took property of Village Pantry.
He possessed a shotgun and confined Moore by “using a firearm and pointing
the firearm at him . . . .” Transcript at 48. Specifically, he elevated the gun and
pointed it at both Moore and Vessels. Lumbley also confined Vessels.
[4] On November 12, 2014, the State charged Lumbley with: Count I, conspiracy
to commit robbery as a level 3 felony; Count II, robbery as a level 3 felony;
Count III, criminal confinement as a level 3 felony; Count IV, theft as a class A
misdemeanor; Count V, theft as a class A misdemeanor; Count VI, carrying a
handgun without a license as a class A misdemeanor; Count VII robbery as a
level 3 felony; Count VIII, criminal confinement as a level 3 felony; Count IX,
criminal confinement as a level 3 felony; Count X, theft as a class A
misdemeanor; Count XI, theft as a class A misdemeanor; and Count XII,
carrying a handgun while having a prior felony conviction as a level 5 felony.
On December 4, 2014, the State added the following charges: Count XIII,
unlawful use of a firearm in the commission of criminal confinement; and
Count XIV, unlawful use of a firearm in the commission of criminal
confinement. On December 10, 2014, the State filed amendments to the
charging information.
[5] On July 28, 2015, Lumbley filed a motion to suppress, and the court denied the
motion on August 12, 2015. On September 1, 2015, the day of Lumbley’s
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scheduled trial, he pled guilty as charged. He admitted that he had been
convicted of a felony within the past fifteen years and agreed that he knowingly
or intentionally used a firearm in the commission of the criminal confinements
at the Speedway and Village Pantry. Specifically, Lumbley’s counsel asked him
if he confined Reynolds “by using that deadly weapon and not allowing him to
leave, correct?” Id. at 43-44. Lumbley answered: “Correct.” Id. at 44.
Lumbley’s counsel asked him if he confined Moore “by using a firearm and
pointing the firearm at him, and not allowing him to move freely or leave,
correct?” Id. at 48. Lumbley answered: “Yes.” Id. On cross-examination by
the prosecutor, Lumbley admitted that he took a Ruger handgun into the
Speedway and pointed it at and put it close to the clerk’s head and face. The
prosecutor asked Lumbley: “And so, and so you not only possessed but you
used that, correct?” Id. at 56. Lumbley answered: “Yes.” Id. He also admitted
that he carried a shotgun into the Village Pantry, elevated it, and pointed it at
the clerks.
[6] That same day, the court entered an order titled “GUILTY PLEA ORDER
(Without Plea Agreement).” Appellant’s Appendix III at 142. The court found
Lumbley guilty of: amended Count I, conspiracy to commit robbery as a level 3
felony; Count II, robbery as a level 3 felony; Count III, criminal confinement as
a level 3 felony; Count IV, theft as a class A misdemeanor; Count V theft as a
class A misdemeanor; Count VI, carrying a handgun without a license as a class
A misdemeanor; amended Count VII, robbery as a level 3 felony; amended
Count VIII, criminal confinement as a level 3 felony; amended Count IX,
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criminal confinement as a level 3 felony; amended Count X, theft as a class A
misdemeanor; amended Count XI, theft as a class A misdemeanor; Count XII,
carrying a handgun while having a prior felony conviction as a level 5 felony;
Count XIII, unlawful use of a firearm as a sentencing enhancement; and Count
XIV, unlawful use of a firearm as a sentencing enhancement.
[7] On March 28, 2016, for the crimes related to the Speedway gas station, the
court sentenced Lumbley to five years for amended Count I, conspiracy to
commit robbery reduced to a level 5 felony, five years for Count II, robbery
reduced to a level 5 felony, ten years for Count III, criminal confinement as a
level 3 felony, one year for Count V, theft as a class A misdemeanor, and five
years for Count XII, carrying a handgun while having a prior felony conviction
as a level 5 felony. The court ordered that Lumbley be sentenced to five years
as charged in Count XIII, a sentencing enhancement, to run consecutive to
Count III. It ordered that Counts I, II, V, and XII run concurrent with Count
III for a total executed sentence of fifteen years for the crimes related to the
Speedway gas station. It ordered that Count IV, theft as a class A
misdemeanor, merged into Count II, that Count VI, carrying a handgun
without a license, merged into Count XII, and it vacated the previously entered
judgments of conviction for Counts IV and VI.
[8] For the crimes involving the Village Pantry gas station, the court sentenced
Lumbley to five years for amended Count VII, robbery reduced to a level 5
felony, ten years for amended Count VIII, criminal confinement as a level 3
felony, ten years for amended Count IX, criminal confinement as a level 3
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felony, one year for amended Count XI, theft as a class A misdemeanor, and
ten years for Count XIV, unlawful use of a firearm, a sentencing enhancement,
to be served consecutive to Count VIII. The court ordered that amended
Counts VII, IX, and XI run concurrent with amended Count VIII for a total
executed sentence of twenty years for crimes related to the Village Pantry gas
station. It ordered that amended Count X, theft as a class A misdemeanor,
merged into Count VII, and it vacated the previously entered judgment of
conviction for Count X.
[9] The court ordered that Count III and amended Count VIII run consecutive to
each other for a total executed sentence of thirty-five years in the Department of
Correction. It cited the seriousness of the offenses and multiple victims as the
reasons for the consecutive sentences.
Discussion
I.
[10] The first issue is whether the trial court erred by enhancing the sentences for
Lumbley’s two criminal confinement convictions based upon his use of a
firearm. Lumbley argues that the trial court abused its discretion in imposing
sentencing enhancements for use of a firearm. He does not dispute that he
pointed the firearm at victims and also placed the firearm in proximity to their
bodies, but he asserts that he did not “use” the firearm as contemplated by the
sentencing enhancement because the weapon was not discharged and there was
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no attempt to do so. The State argues that Lumbley cannot raise his challenge
to the two firearm enhancements in this direct appeal from his guilty plea.
[11] To the extent Lumbley argues that he did not “use” the firearm as contemplated
by the sentencing enhancement, he essentially challenges the factual basis for
his guilty plea to the sentencing enhancements, and we conclude that his
argument is not properly before us. See Robey v. State, 7 N.E.3d 371, 383-384
(Ind. Ct. App. 2014) (citing Tumulty v. State, 666 N.E.2d 394 (Ind. 1996), and
holding that if the defendant wished to challenge the factual basis underlying
his admission to being an habitual offender, he would have to do so in a
petition for post-conviction relief), trans. denied; Stanley v. State, 849 N.E.2d 626,
630 (Ind. Ct. App. 2006) (observing that status as an habitual offender calls for
an enhancement of a sentence, that the defendant’s admission to being an
habitual offender was the equivalent of a guilty plea in which he assented to all
of the elements of the habitual offender charge, holding that “[b]ecause [the
defendant’s] argument concerns the habitual offender determination, as
opposed to the sentence imposed upon that determination, it is not properly
before us and we cannot, therefore, resolve it on its merits,” and dismissing the
defendant’s guilty plea without prejudice to his right to raise the issue in a
subsequent post-conviction proceeding, if he so chooses); see also Kling v. State,
837 N.E.2d 502, 504 (Ind. 2005) (holding that a person who pleads guilty
cannot challenge the conviction by means of direct appeal but only through a
petition for post-conviction relief; one of the things a person gives up by
pleading guilty is the right to a direct appeal) (citing Tumulty, 666 N.E.2d 394).
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II.
[12] The next issue is whether the trial court erred in ordering that Lumbley’s
enhanced sentences for his criminal confinement convictions be served
consecutive to each other. Lumbley contends that the trial court erred by
imposing consecutive sentencing enhancements pursuant to Ind. Code § 35-50-
2-11, and that absent specific statutory authority, the sentencing enhancements
for use of a firearm cannot be run consecutively, just as habitual offender
enhancements cannot.
[13] The State argues that, because Indiana jurisprudence allows for consecutive
sentences where there are multiple victims, the fact that the legislature
promulgated the firearm enhancement in light of this jurisprudence implies that
it authorized consecutive firearm enhancements where multiple victims were
affected. It also argues that the firearm enhancement is qualitatively different
from the habitual offender and habitual substance offender enhancements
because it is an additional penalty imposed for using a firearm and not a
recidivist enhancement that is punishing a defendant for past misbehavior for
which he has already received a punishment.
[14] While a defendant cannot challenge a conviction following a guilty plea on
direct appeal, a defendant is entitled to contest on direct appeal the merits of a
trial court’s sentencing discretion. See Mapp v. State, 770 N.E.2d 332, 334 n.1
(Ind. 2002). We note that the sentences which were enhanced dealt with the
separate offenses. Specifically, Count III, criminal confinement while armed
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with a deadly weapon as a level 3 felony, occurred at the Speedway on
November 1, 2014, and Count VIII, criminal confinement with a deadly
weapon as a level 3 felony, occurred at the Village Pantry on November 5,
2014. At the time of the offenses, Ind. Code § 35-50-1-2(e) provided: “If the
factfinder determines under IC 35-50-2-11 that a person used a firearm in the
commission of the offense for which the person was convicted, the term of
imprisonment for the underlying offense and the additional term of
imprisonment imposed under IC 35-50-2-11 must be served consecutively.” 1
[15] Lumbley cites Breaston v. State, 907 N.E.2d 992 (Ind. 2009), in which the
Indiana Supreme Court addressed whether it was proper for the defendant to
receive consecutive habitual offender enhancements following unrelated trials.
The Court observed that Ind. Code § 35-50-1-2 provides that a court has
discretion to determine whether terms of imprisonment are to be served
concurrently or consecutively. 907 N.E.2d at 994. It noted that it had
previously discussed the policies that distinguish the power to impose
consecutive sentences and the power to enhance sentences based on a finding of
habitual offender status as follows:
The provision appears unlimited in scope, applying to the class of
all sentences. Yet the power to order consecutive sentences is
subject to the rule of rationality and the limitations in the
constitution. The sentence enhanced under the habitual offender
1
Subsequently amended by Pub. L. No. 238-2015, § 16 (eff. July 1, 2015); Pub. L. No. 13-2016, § 18 (eff.
July 1, 2016).
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statute is a special statutory one. It can have the dramatic effect
of increasing a single sentence from two years to half a lifetime.
A basis for such a gross impact is the existence of the two prior
unrelated felony convictions and sentences, and the dangerous
nature of the offender which they bespeak. A basis for the gross
impact which consecutive sentences may have is, by contrast, the
moral principle that each separate and distinct criminal act
deserves a separately experienced punishment. Furthermore the
habitual offender status determination carries a more binding
effect upon the sentence tha[n] does the determination of
multiple criminal acts. Therefore, the purpose and process of the
felony habitual offender statute has special and distinct
dimensions.
In sum, it is apparent, from a study of the present statutes, that
such statutes are silent on the question of whether courts have the
authority to require habitual offender sentences to run
consecutively, when engaged in the process of meting out several
sentences. In the absence of express statutory authorization for
such a tacking of habitual offender sentences, there is none.
907 N.E.2d at 994 (quoting Starks v. State, 523 N.E.2d 735, 736-737 (Ind. 1988)).
[16] The Court further observed that the relevant portions of the consecutive
sentencing statute had remained unchanged in the more than two decades since
Starks and stare decisis and legislative acquiescence supported the result that a
trial court cannot order consecutive habitual offender sentences. Id. at 994-995.
The Court noted that “[i]n Starks, we recognized that the ‘special and distinct
dimensions’ of the habitual offender enhancement precludes a trial court from
ordering habitual offender sentences to run consecutively.” Id. at 995. It
concluded that the trial court erred when it ordered the habitual offender
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sentences to run consecutively. Id. In Starks, the Court stated that it had
previously “sanctioned the process of enhancing two sentences for aggravating
circumstances and then requiring the two sentences to be served consecutively.”
523 N.E.2d at 736 (citing Smith v. State, 474 N.E.2d 71 (Ind. 1985)).
[17] We conclude that the firearm enhancements do not have the special and
distinct dimensions of habitual offender enhancements and are similar to the
finding of aggravating circumstances for separate offenses. We further observe
that Ind. Code § 35-50-2-11 was amended by Pub. L. No. 238-2015, § 18,
effective July 1, 2015, in part to designate the former subsection (e) as
subsection (g) and to add subsection (i) which states: “A person may not be
sentenced under subsections (g) and (h) for offenses, felonies, and
misdemeanors comprising a single episode of criminal conduct.” The addition
of subsection (i) provides further support for the conclusion that the legislature
intended for an enhancement under the statute to support consecutive sentences
and that subsection (i) is intended to prevent the imposition of consecutive
sentences when a single episode of criminal conduct is present. We conclude
that the trial court did not abuse its discretion by enhancing the two separate
criminal confinement convictions and ordering that they be served consecutive
to each other.
III.
[18] The next issue is whether double jeopardy prohibits Lumbley’s convictions for
conspiracy to commit robbery and robbery. Lumbley appears to argue that his
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convictions on Count I, conspiracy to commit robbery as a level 5 felony,
Count II, robbery as a level 5 felony, and Count VII, robbery as a level 5 felony,
violate the Double Jeopardy Clause of the Indiana Constitution, which
provides: “No person shall be put in jeopardy twice for the same offense.” IND.
CONST. art. 1, § 14. He asserts that Count I does nothing more than summarize
the events of the robberies which occurred at the Speedway gas station on
November 1, 2014, and the Village Pantry on November 5, 2014. He concedes
that the elements of conspiracy to commit robbery and robbery are not the same
as each requires proof of facts which the other does not but argues that the
actual evidence which supports his conviction for Count I, conspiracy to
commit robbery, is identical to the evidence used to establish each robbery. The
State argues that the conspiracy was completed before the robbery and the
actual facts comprising the essential elements of the conspiracy were completed
before all of the actual facts comprising the essential elements of the robbery
were completed or even begun.
[19] We again note that a person who pleads guilty cannot challenge the conviction
by means of direct appeal but only through a petition for post-conviction relief.
See Kling, 837 N.E.2d at 504. In Mapp, the Indiana Supreme Court observed
that the defendant contended that he was charged twice for essentially the same
criminal conduct and that the State contended there was evidence to show two
separate charges were sustainable. 770 N.E.2d at 334. The Court observed that
this was the kind of factual dispute that a post-conviction trial court is suited to
resolving and that an appellate court is not. Id. It stated that because the State
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did not argue that the appeal should be dismissed as improper, it elected to
address the claim on the merits. Id. Similarly, here, the State makes no
argument that Lumbley’s appeal should be dismissed with respect to his double
jeopardy claim. Thus, in light of Mapp, we elect to address the merits of
Lumbley’s claim.
[20] “Indiana’s Double Jeopardy Clause . . . prevent[s] the State from being able to
proceed against a person twice for the same criminal transgression.” Hopkins v.
State, 759 N.E.2d 633, 639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d
32, 49 (In d. 1999)). The Indiana Supreme Court has held that “two or more
offenses are the ‘same offense’ in violation of Article I, Section 14 of the
Indiana Constitution, if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Richardson, 717 N.E.2d at 49. In applying the actual
evidence test, a defendant must demonstrate and a reviewing court must
conclude that there is a reasonable possibility that the evidentiary facts used by
the factfinder to establish the essential elements of an offense for which the
defendant was convicted or acquitted may also have been used to establish all
the essential elements of a second challenged offense. Hines v. State, 30 N.E.3d
1216, 1222 (Ind. 2015). The Indiana Supreme Court has held that “reasonable
possibility” requires “substantially more than a logical possibility.” Lee v. State,
892 N.E.2d 1231, 1236 (Ind. 2008). The existence of a reasonable possibility
turns on a practical assessment of whether the fact finder may have latched on
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to exactly the same facts for both convictions. Garrett v. State, 992 N.E.2d 710,
720 (Ind. 2013). Generally, we evaluate the evidence from the jury’s
perspective and may consider the charging information, jury instructions, and
arguments of counsel. Id.[21] The amended charging information for Count I alleged:
During October and November, 2014, in Tippecanoe County,
State of Indiana, Miguel Garcia, Jacob Rufus Lumbley, Tiffany
Dawn Mounts and Aaron David Arnold did, with the intent to
commit Robbery, agree to commit the offense of Robbery, and
one or more of the following overt acts were performed in
furtherance of said agreement, to wit: On one or more occasions,
Garcia and Lumbley went to businesses while armed with deadly
weapons; on one or more occasions, Garcia, Lumbley, and/or
Mounts obtained and wore hooded sweatshirts and masks to
conceal their identities when they entered businesses they were
robbing; on one occasion Arnold provided a shotgun for use in
committing a robbery; on one occasion Arnold acted as a lookout
during the robbery; on one or more occasions, Garcia, Lumbley
and/or Mounts took property from said businesses; on one or
more occasions, Garcia or Lumbley would take or damage
phones to prevent victims from calling police; on one or more
occasions, Garcia, Lumbley, and/or Mounts would share in the
proceeds of said robberies; further, said offenses were committed
while armed with a deadly weapon, to wit: firearms and/or
knives.
Appellant’s Appendix Volume II at 70. Thus, the charging information
included the overt act of obtaining hooded sweatshirts and masks prior to the
actual robberies. Further, at the hearing, Lumbley testified that he agreed with
others to commit the offense of robbery, that one or more overt acts were
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performed in furtherance of the agreement, that he obtained sweatshirts and
masks to conceal their identities, that he obtained a gun, and that Arnold
provided him with the shotgun.
[22] The offenses of conspiracy and the robberies could have been established by
“separate and distinct facts.” Richardson, 717 N.E.2d at 53. To find a double
jeopardy violation, we must conclude there is a “reasonably possibility” the
facts used to establish the essential elements of one offense may also have been
used to establish the essential elements of a second offense. Garrett, 992 N.E.2d
at 719. Since a “reasonable possibility” requires “substantially more than a
logical possibility,” Lee, 892 N.E.2d at 1236, we cannot conclude Lumbley’s
convictions violate double jeopardy. See Kunberger v. State, 46 N.E.3d 966, 972
(Ind. Ct. App. 2015) (addressing a defendant’s double jeopardy claim following
a guilty plea and holding that we were left with no basis on which to conclude
there was a double jeopardy violation under the actual evidence test).
Conclusion
[23] For the foregoing reasons, we affirm Lumbley’s convictions and sentence.
[24] Affirmed.
Robb, J., and Mathias, J., concur.
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