Tony Lemorris Clemons v. State of Indiana , 105 N.E.3d 1139 ( 2018 )

FILED
Jun 29 2018, 6:12 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tony Lemorris Clemons, June 29, 2018
Appellant-Defendant, Court of Appeals Case No.
79A02-1712-CR-2931
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1704-F5-52
May, Judge.
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[1] Tony Lemorris Clemons appeals his sentence for Level 5 felony domestic
battery 1 and Level 6 felony invasion of privacy. 2 Clemons asserts the trial court
erred when it imposed consecutive sentences for the two convictions because
those convictions “were closely related in time, place, and circumstances.” 3
(Br. of Appellant at 5.) As we find no abuse of discretion, we affirm.
Facts and Procedural History
[2] Clemons and S.C. were married. Pursuant to a no contact order entered in
2016, Clemons was not allowed to interact with S.C. On April 23, 2017, S.C.
was at a bar in Lafayette, Indiana. Clemons went into the bar and sat next to
S.C. Clemons took S.C.’s phone but S.C. would not give him the password.
Clemons left the bar with the phone. S.C. followed him to the parking lot
where she attempted to retrieve her phone. Clemons refused to give it to her.
Clemons grabbed S.C. and threw her, headfirst, on the ground. When the
police arrived, S.C. was bleeding from a head wound.
[3] The State charged Clemons with four counts of domestic battery and two
counts of invasion of privacy. Pursuant to a plea agreement, Clemons pled
guilty to one count of Level 5 felony domestic battery and one count of Level 6
1
Ind. Code § 35-42-2-1.3 (2016).
2
Ind. Code § 35-46-1-15.1 (2016).
3
Clemons’ brief includes no standard of review. Appellate Rule 46(A)(8)(b) provides the argument section of
an appellant’s brief must contain “a concise statement of the applicable standard of review.”
Court of Appeals of Indiana | Opinion 79A02-1712-CR-2931 | June 29, 2018 Page 2 of 6
felony invasion of privacy. In return, the State dismissed the other charges
under this cause number and a pending petition to revoke probation in an
unrelated case. The trial court found the aggravators outweighed the mitigators
and imposed a five-year sentence for domestic battery and a two-year sentence
for invasion of privacy. The trial court ordered the sentences served
consecutively.
Discussion and Decision
[4] Clemons argues the trial court erred by imposing consecutive sentences when
the two convictions happened so closely in time as to warrant a single incident.
Clemons argues this is one single incident because he could not commit battery
on S.C. without first committing invasion of privacy. As such, he argues the
sentences should have been imposed concurrently.
[5] Sentencing decisions rest within the sound discretion of the trial court and will
be disturbed only on a showing of abuse of discretion. Anderson v. State, 989
N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion
occurs when the decision is clearly against the logic and effect of the evidence
before the court or the reasonable inferences to be drawn therefrom. Id.[6] If not a violation of the prohibition of double jeopardy, and if not in violation of
applicable statutory mandates, “[a] trial court may impose consecutive
sentences for separate and distinct crimes that arise out of a single confrontation
involving the same victim.” Vermillion v. State, 978 N.E.2d 459, 466 (Ind. Ct.
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App. 2012). It is undisputed that Clemons’ crimes are not crimes of violence as
defined in Indiana Code section 35-50-1-2(a). Therefore, his sentences are
subject to the limits as prescribed under Indiana Code section 35-50-1-2(d)(2).
[7] 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). If consecutive sentences are imposed for an episode of criminal
conduct, the aggregate sentence is limited by the “most serious crime for which
the defendant is sentenced[.]” Ind. Code § 35-50-1-2(d)(2). If that crime “is a
Level 5 felony, the total consecutive terms of imprisonment may not exceed
seven (7) years.” Id. The trial court here ordered a seven-year sentence, which
was within the statutory limits for a single episode of criminal conduct.
Accordingly, Clemons cannot demonstrate error in his sentence based on that
statute. See Williams v. State, 889 N.E.2d 1274, 1282-83 (Ind. Ct. App. 2008)
(aggregate sentences equaling less than the statutory limit are not a violation of
Indiana Code section 35-50-1-2), trans. denied.
[8] Clemons does not explicitly argue his right against double jeopardy has been
implicated. Nevertheless, to support his assertion the trial court erred when it
ordered him to serve the sentences for his two convictions consecutively,
Clemons relies on a double jeopardy analysis regarding crimes arising from a
single incident from Kocielko v. State, 938 N.E.2d 243 (Ind. Ct. App. 2010), on
rehearing Kocielko v. State, 943 N.E.2d 1282 (Ind. Ct. App. 2011), trans. denied.
In Kocielko, we held the trial court should have imposed concurrent sentences in
order to reflect “the episodic nature of the crimes[.]” Id. at 1283.
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[9] However, in Vermillion, we noted Kocielko was not primarily concerned with
consecutive sentencing but rather double jeopardy. Vermillion, 978 N.E.2d at
466. We then declined to interpret Kocielko to mean a trial court may not
impose consecutive sentences for separate crimes arising out of a single
confrontation with a single victim. Id. Indiana Code section 35-50-1-2 supports
this holding in that it specifically allows a trial court to impose consecutive
sentencing for “felony convictions arising out of an episode of criminal
conduct” provided the aggregate sentence is capped based on the most serious
crime for which the defendant is convicted.
[10] Here, the trial court sentenced Clemons to five years for domestic battery and
two years for invasion of privacy. Finding the aggravators outweighed the
mitigators, the trial court also noted the two offenses were separate, stating,
“the invasion of privacy actually occurred even prior to the battery although it
occurred close in time, there were two separate offenses here.” (Tr. at 68.) The
aggregate sentence is not more than the statutory maximum of seven years set
forth for a Level 5 felony in Indiana Code section 35-50-1-2(d)(2). Therefore,
we cannot say the trial court abused its discretion in ordering the sentences to
be served consecutive to one another. See Vermillion, 978 N.E.2d at 466 (if
crimes “constitute a single episode of criminal conduct” and are not crimes of
violence, the aggregate sentence may not exceed the maximum imprisonment
as defined in Indiana Code section 35-50-1-2 but the trial court is allowed to
impose consecutive sentences).
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[11] As Clemons has not demonstrated the trial court abused its discretion when it
ordered Clemons to serve his sentences consecutively, we affirm.
[12] Affirmed.
Riley, J., and Mathias, J., concur.
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