Jerimia Heffner v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:22 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Anthony S. Churchward Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Michael G. Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerimia Heffner, March 31, 2016
Appellant-Defendant, Court of Appeals Case No.
02A05-1510-CR-1806
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1506-F6-546
Pyle, Judge.
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Case Summary
[1] Jerimia Heffner (“Heffner”) appeals the sentence imposed after he pleaded
guilty to three counts of Level 6 felony invasion of privacy 1 for telephone calls
that he made to his then-wife Tina, (“Tina”), from the Allen County Jail. He
specifically contends that the trial court erred in ordering two of the sentences
to run consecutively. Because the three phone calls stem from three separate
acts of criminal misconduct, the trial court did not abuse its discretion when it
ordered consecutive sentences.
[2] We affirm.
Issue
Whether the trial court abused its discretion in ordering
consecutive sentences.
Facts
[3] In March 2015, thirty-five-year-old Heffner, who was incarcerated in the Allen
County Jail, was under a no-contact order with his then-wife Tina. On March
2, Heffner telephoned Tina and told her not to cooperate with the authorities
and to contact the small claims court using a “deep voice like a man” to change
a court date. (App. 14). The following day, March 3, Heffner telephoned Tina
and told her not to cooperate with Child Protective Services because it could
1
IND. CODE § 35-46-1-15.1.
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“f*** up his entire case and he could get six years.” (App. 14). On March 5,
Heffner telephoned Tina and told her that she was “the one that caused this
sh*t.” (App. 14).
[4] The State charged Heffner with three counts of Level 6 felony invasion of
privacy, one count for each of the three telephone calls. Heffner pleaded guilty
to the three counts without a plea agreement. The trial court sentenced him to
two years each for Counts I and II, with one year executed and one year
suspended to probation, sentences to run concurrently. The trial court further
sentenced Heffner to one and one-half years for Count III. The court ordered
that sentence to run consecutively to the two-year concurrent sentence for
Counts I and II, for a total sentence of three and one-half years. Heffner
appeals his sentence.
Decision
[5] Heffner argues that the trial court erred in ordering his sentence for Count III to
run consecutively to the concurrent sentence for Counts I and II. Specifically,
he contends that his “three (3) charges of Invasion of Privacy all stemmed from
one episode of criminal conduct.” (Heffner’s Br. 11). Therefore, according to
Heffner, his total sentence was limited to the advisory sentence for the next
higher class of felony, which is three years.
[6] Sentencing decisions rest within the sound discretion of the trial court. Bisard
v. State, 26 N.E.3d 1060, 1070 (Ind. Ct. App. 2015), trans. denied. INDIANA
CODE § 35-50-1-2(c) provides that, except for statutory crimes of violence,
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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.
An “episode of criminal conduct” refers to “offenses or a connected series of
offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-
1-2(b). Whether multiple offenses constitute a single episode of criminal
conduct is a fact-sensitive inquiry to be determined by the trial court. Schlichter
v. State, 779 N.E.2d 1155, 1157 (Ind. 2002). In making this determination, we
look to the simultaneous and contemporaneous nature of the crimes, which
would constitute a single episode of criminal conduct. Reed v. State, 856 N.E.2d
1189, 1200 (Ind. 2006). Separate offenses are not part of a single episode of
criminal conduct when a full account of each crime can be given without
referring to the other offenses. Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct.
App. 2011), trans. denied.
[7] Here, our review of the record reveals that Heffner made the three phone calls
on three different days, and a full account of each call can be given without
referring to the other calls. Specifically, each call involved a separate invasion
of the victim’s privacy. In addition, each call contained a different threat or
instruction. The crimes were distinct in nature and were not part of a
continuous transaction. We therefore conclude that Heffner’s crimes were not
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part of a single episode of criminal conduct, and the trial court did not abuse it
discretion in ordering consecutive sentences.
[8] Affirmed.
Kirsch, J., and Riley, J., concur.
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