MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 6:45 am regarded as precedent or cited before any 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 Romy N. Elswerky Gregory F. Zoeller Gibson Law Office Attorney General of Indiana Lafayette, Indiana Jonathan R. Sichtermann Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony L. Hall, January 29, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1504-CR-254 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Randy J. Williams, Judge Trial Court Cause No. 79D01-1412-F4-4
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 1 of 8 [1] Anthony L. Hall was convicted after a bifurcated trial of five counts of
possession of a firearm by a serious violent felon (“SVF”),1 each as a Level 4
felony, and was found to be a habitual offender. He was subsequently
sentenced to an aggregate sentence of twenty-one years. Hall appeals, raising
the following restated issues for our review:
I. Whether the trial court abused its discretion when it sentenced him for his five convictions of possession of a firearm by a SVF and a habitual offender enhancement; and
II. Whether the trial court properly attached the habitual offender enhancement to the sentence for Count I.
[2] We affirm and remand.
Facts and Procedural History [3] On December 4, 2014, Jeffrey Pruitt reported to the police that a burglary had
occurred at his residence. When the police arrived at Pruitt’s home, they asked
him to check the residence to ascertain what had been taken. Pruitt reported
that the burglar had taken five firearms from the home, as well as other items.
[4] A few hours later, officers were dispatched to the parking lot of a Wal-Mart in
Lafayette, Indiana on a report of a gunshot being fired in a parked van. Police
located the van and ordered the two occupants to exit the vehicle. Hall, who
1 See Ind. Code § 35-47-4-5.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 2 of 8 had been in the driver’s seat, gave consent for the officers to search the van.
During the search, the police found five firearms that matched the descriptions
of the firearms that Pruitt had reported stolen from his home during the
burglary.
[5] The State charged Hall with five counts of possession of a firearm by a SVF,
each as a Level 4 felony, one count of burglary as a Level 4 felony, and one
count of theft as a Level 6 felony. The State also alleged Hall to be a habitual
offender. A jury trial was held, and the jury acquitted Hall on the burglary and
theft charges, but found that he had possessed the five firearms; during the
second phase of the trial, the trial court convicted Hall of five counts of
possession of a firearm by a SVF. The trial court also found Hall to be a
habitual offender. At the sentencing hearing, the trial court ordered Hall to
serve nine years for each of his five convictions for Level 4 felony possession of
a firearm by a SVF, all to run concurrent with each other. The trial court also
ordered Count I to be enhanced by an additional twelve years for the habitual
offender finding, resulting in an aggregate sentence of twenty-one years. In its
sentencing order, the trial court ordered that “the sentence for Count I is
enhanced by a period of twelve (12) years based on Count VIII, the Habitual
Offender sentencing enhancement.” Appellant’s App. at 49. In the next
paragraph, the trial court further ordered that “said sentences in Counts I, II,
III, IV, and V shall run concurrently to each other and consecutive to Count
VIII for a total sentence of twenty-one (21) years.” Id. Hall now appeals.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 3 of 8 Discussion and Decision
I. Abuse of Discretion [6] Sentencing decisions are within the discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. “An abuse of discretion
occurs if the decision is ‘clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538,
544 (Ind. 2006)). A trial court may abuse its discretion (1) by failing to issue a
sentencing statement or (2) by issuing a sentencing statement that bases a
sentence on reasons that are not clearly supported by the record; omits reasons
both advanced for consideration and clearly supported by the record; or
includes reasons that are improper as a matter of law. Id. at 490-91.
[7] Hall argues that the trial court abused its discretion in sentencing him because
the sentence given was “unduly harsh and manifestly unreasonable.”2
Specifically, Hall contends that his sentence was an abuse of discretion because
the trial court used his criminal history to justify elevating his sentences for the
2 To the extent that Hall is arguing that his sentence is manifestly unreasonable, we note that that is no longer the standard Indiana courts apply when reviewing a sentence. Orta v. State, 940 N.E.2d 370, 379 n.7 (Ind. Ct. App. 2011). Instead, the applicable standard we now use is whether the sentence is inappropriate in light of the nature of offense and the character of the offender under Indiana Appellate Rule 7(B). Id. However, Hall does not make a showing under the current standard. He has, therefore, waived any argument that his sentence is inappropriate for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8); Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010).
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 4 of 8 Level 4 felony possession of a firearm by a SVF to nine years, which is above
the advisory sentence. Hall asserts that this was an abuse of discretion because
the trial court also used his criminal history to enhance his sentence when it
found him to be a habitual offender and sentenced him to an additional twelve
years. He, therefore, claims that it was improper for the trial court to use his
criminal history to both impose a sentence above the advisory and to enhance
his sentence as a habitual offender. Hall further argues that the trial court failed
to reasonably articulate why it imposed his sentence.
[8] Here, Hall was convicted of five counts of Level 4 felony possession of a
firearm by a SVF. “A person who commits a Level 4 felony shall be
imprisoned for a fixed term of between two (2) and twelve (12) years, with the
advisory sentence being six (6) years.” Ind. Code § 35-50-2-5.5. In sentencing
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 6:45 am regarded as precedent or cited before any 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 Romy N. Elswerky Gregory F. Zoeller Gibson Law Office Attorney General of Indiana Lafayette, Indiana Jonathan R. Sichtermann Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony L. Hall, January 29, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1504-CR-254 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Randy J. Williams, Judge Trial Court Cause No. 79D01-1412-F4-4
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 1 of 8 [1] Anthony L. Hall was convicted after a bifurcated trial of five counts of
possession of a firearm by a serious violent felon (“SVF”),1 each as a Level 4
felony, and was found to be a habitual offender. He was subsequently
sentenced to an aggregate sentence of twenty-one years. Hall appeals, raising
the following restated issues for our review:
I. Whether the trial court abused its discretion when it sentenced him for his five convictions of possession of a firearm by a SVF and a habitual offender enhancement; and
II. Whether the trial court properly attached the habitual offender enhancement to the sentence for Count I.
[2] We affirm and remand.
Facts and Procedural History [3] On December 4, 2014, Jeffrey Pruitt reported to the police that a burglary had
occurred at his residence. When the police arrived at Pruitt’s home, they asked
him to check the residence to ascertain what had been taken. Pruitt reported
that the burglar had taken five firearms from the home, as well as other items.
[4] A few hours later, officers were dispatched to the parking lot of a Wal-Mart in
Lafayette, Indiana on a report of a gunshot being fired in a parked van. Police
located the van and ordered the two occupants to exit the vehicle. Hall, who
1 See Ind. Code § 35-47-4-5.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 2 of 8 had been in the driver’s seat, gave consent for the officers to search the van.
During the search, the police found five firearms that matched the descriptions
of the firearms that Pruitt had reported stolen from his home during the
burglary.
[5] The State charged Hall with five counts of possession of a firearm by a SVF,
each as a Level 4 felony, one count of burglary as a Level 4 felony, and one
count of theft as a Level 6 felony. The State also alleged Hall to be a habitual
offender. A jury trial was held, and the jury acquitted Hall on the burglary and
theft charges, but found that he had possessed the five firearms; during the
second phase of the trial, the trial court convicted Hall of five counts of
possession of a firearm by a SVF. The trial court also found Hall to be a
habitual offender. At the sentencing hearing, the trial court ordered Hall to
serve nine years for each of his five convictions for Level 4 felony possession of
a firearm by a SVF, all to run concurrent with each other. The trial court also
ordered Count I to be enhanced by an additional twelve years for the habitual
offender finding, resulting in an aggregate sentence of twenty-one years. In its
sentencing order, the trial court ordered that “the sentence for Count I is
enhanced by a period of twelve (12) years based on Count VIII, the Habitual
Offender sentencing enhancement.” Appellant’s App. at 49. In the next
paragraph, the trial court further ordered that “said sentences in Counts I, II,
III, IV, and V shall run concurrently to each other and consecutive to Count
VIII for a total sentence of twenty-one (21) years.” Id. Hall now appeals.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 3 of 8 Discussion and Decision
I. Abuse of Discretion [6] Sentencing decisions are within the discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. “An abuse of discretion
occurs if the decision is ‘clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538,
544 (Ind. 2006)). A trial court may abuse its discretion (1) by failing to issue a
sentencing statement or (2) by issuing a sentencing statement that bases a
sentence on reasons that are not clearly supported by the record; omits reasons
both advanced for consideration and clearly supported by the record; or
includes reasons that are improper as a matter of law. Id. at 490-91.
[7] Hall argues that the trial court abused its discretion in sentencing him because
the sentence given was “unduly harsh and manifestly unreasonable.”2
Specifically, Hall contends that his sentence was an abuse of discretion because
the trial court used his criminal history to justify elevating his sentences for the
2 To the extent that Hall is arguing that his sentence is manifestly unreasonable, we note that that is no longer the standard Indiana courts apply when reviewing a sentence. Orta v. State, 940 N.E.2d 370, 379 n.7 (Ind. Ct. App. 2011). Instead, the applicable standard we now use is whether the sentence is inappropriate in light of the nature of offense and the character of the offender under Indiana Appellate Rule 7(B). Id. However, Hall does not make a showing under the current standard. He has, therefore, waived any argument that his sentence is inappropriate for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8); Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010).
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 4 of 8 Level 4 felony possession of a firearm by a SVF to nine years, which is above
the advisory sentence. Hall asserts that this was an abuse of discretion because
the trial court also used his criminal history to enhance his sentence when it
found him to be a habitual offender and sentenced him to an additional twelve
years. He, therefore, claims that it was improper for the trial court to use his
criminal history to both impose a sentence above the advisory and to enhance
his sentence as a habitual offender. Hall further argues that the trial court failed
to reasonably articulate why it imposed his sentence.
[8] Here, Hall was convicted of five counts of Level 4 felony possession of a
firearm by a SVF. “A person who commits a Level 4 felony shall be
imprisoned for a fixed term of between two (2) and twelve (12) years, with the
advisory sentence being six (6) years.” Ind. Code § 35-50-2-5.5. In sentencing
Hall, the trial court found as aggravating factors that he “has a criminal history,
. . . was on probation at the time of the instant offense was committed [sic],
twelve (12) Petitions to Revoke were filed with four (4) having been found true
and two (2) pending, and that previous attempts at rehabilitation have failed.”
Appellant’s App. at 47-48. It found as a mitigating factor that Hall had family
support. Id. at 47. Finding that the aggravating factors outweighed the
mitigating factors, the trial court sentenced Hall to nine years for each of his
convictions and ordered them to run concurrently. Additionally, in
determining that Hall was a habitual offender, the trial court used convictions
that were part of Hall’s criminal history as support for the habitual offender
finding.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 5 of 8 [9] Initially, to the extent that Hall is arguing that the trial court abused its
discretion when it sentenced him to nine years for each of his convictions for
possession of a firearm by a SVF instead of the six-year advisory sentence, this
argument has been waived as any alleged error was invited error. Under the
invited error doctrine, “‘a party may not take advantage of an error that [he]
commits, invites, or which is the natural consequence of [his] own neglect or
misconduct.’” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). At the
sentencing hearing in the present case, Hall’s counsel requested that the trial
court “order a nine (9) year sentence on the Counts I, II, III, IV and V.” Tr. at
290. Because Hall specifically requested a nine-year-sentence, any alleged error
was invited, and such error is not available for review. See Wright, 828 N.E.2d
at 907.
[10] Further, as to Hall’s argument that the trial court abused its discretion in
sentencing him when it used his criminal history to both order a sentence above
the advisory and to support a habitual offender enhancement, we find no merit.
The criminal sentencing scheme was amended by the General Assembly in
2005 to replace the old presumptive sentence scheme with the current advisory
sentence scheme. Pedraza v. State, 887 N.E.2d 77, 79 (Ind. 2008). Under the
2005 statutory changes, trial courts no longer “enhance” sentences upon finding
aggravators; instead, a trial court can impose any sentence within the statutory
range set for the crime, “regardless of the presence or absence of aggravating
circumstances or mitigating circumstances.” Id. at 79, 80. Therefore, when a
trial court uses the same criminal history as an aggravator and as support for a
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 6 of 8 habitual offender finding, it does not constitute impermissible double
enhancement of the offender’s sentence. Id. at 80.
[11] Hall also contends that the trial court abused its discretion because it failed to
provide a sufficient explanation as to why it imposed his sentence. We
disagree. In its sentencing order, the trial court stated that it found the fact that
Hall had family support to be a mitigating factor. It then found as aggravating
factors that Hall “has a criminal history, . . . was on probation at the time of
the instant offense was committed [sic], twelve (12) Petitions to Revoke were
filed with four (4) having been found true and two (2) pending, and that
previous attempts at rehabilitation have failed.” Appellant’s App. at 47-48. We
conclude that the trial court provided “a reasonably detailed recitation of the
reasons for the sentence imposed.” See Suding v. State, 945 N.E.2d 731, 739
(Ind. Ct. App. 2011), trans. denied. The trial court did not abuse its discretion in
sentencing Hall.
II. Habitual Offender Enhancement [12] Hall contends that the trial court improperly sentenced him when it imposed his
sentence for the habitual offender enhancement. He claims that the trial court
erred in ordering the sentence for his habitual offender finding to run
consecutive to his other concurrent nine-year sentences. Hall alleges that this
essentially sentenced him to an additional sentence for being a habitual
offender, which the trial court was not permitted to do.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 7 of 8 [13] Habitual offender is a status that results in an enhanced sentence. Ind. Code §
35-50-2-8(j). A habitual offender finding does not constitute 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. When imposing a habitual offender
enhancement, the trial court is required to “‘attach the habitual offender
enhancement to the felony conviction with the highest sentence imposed and
specify which felony count is being enhanced.’” State v. Arnold, 27 N.E.3d 315,
321 (Ind. Ct. App. 2015) (quoting Ind. Code § 35-50-2-8(j)), trans. denied.
[14] In the present case, the trial court ordered that Hall’s sentence for Count I be
enhanced by twelve years based on the habitual offender finding. Appellant’s
App. at 49. Therefore, the trial court properly treated the habitual offender
status as an enhancement, attached it to a single conviction, and specified to
which conviction it was attached as it was required to do under Indiana Code
section 35-50-2-8. However, the next paragraph of the sentencing order stated
that the “sentences in Counts I, II, III, IV and V shall run concurrent to each
other and consecutive to Count VIII for a total sentence of twenty-one (21)
years.” Id. We find this additional language to be a misstatement and remand
to the trial court for a new sentencing order that does not include such
language.
[15] Affirmed and remanded.
[16] Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016 Page 8 of 8