MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing May 16 2017, 8:23 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Christopher G. Walter, Attorney General of Indiana P.C. Nappanee, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Armando Gonzalez, Jr., May 16, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1608-CR-2110 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Appellee-Plaintiff Shewmaker, Judge Trial Court Cause No. 20C01-1311-FB-131
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 1 of 6 [1] Armando Gonzalez, Jr., appeals the sentence he received following our remand
for him to be resentenced. As Gonzalez has not demonstrated the sentence
imposed by the trial court is “illegal,” (Appellant’s Br. at 4), we affirm.
Facts and Procedural History [2] When Gonzalez’s case was before us in 2016, we explained:
The State charged Gonzalez with five Class B felonies: robbery while armed with a deadly weapon, burglary, criminal confinement, conspiracy to commit burglary, and unlawful possession of a firearm by a serious violent felon. A jury found Gonzalez guilty of the first four charges. In a second stage of the trial, the court found Gonzalez guilty of unlawful possession of a firearm by a serious violent felon.
On March 12, 2015, over the State’s objection, the trial court reduced the robbery and criminal confinement convictions to Class C felonies because of double jeopardy concerns. It sentenced Gonzalez to eight years for each Class C felony and ordered the sentences served consecutively, for a total of sixteen years. The trial court then sentenced Gonzalez to fifteen years for each Class B felony to be served consecutively, for a total of forty-five years. Gonzalez’s aggregate sentence was sixty-one years.
Gonzalez v. State, No. 20A03-1504-CR-133, slip op. at *2 (Ind. Ct. App. Jan. 12,
2016) (footnotes omitted).
[3] Gonzalez challenged the order that he serve three of his sentences
consecutively, and the State cross-appealed the court’s decision to reduce
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 2 of 6 Gonzalez’s convictions of robbery and criminal confinement to Class C
felonies. Id. at *1. We did not address Gonazalez’s issue. Instead, we
remanded for resentencing after addressing the State’s cross-appeal:
The trial court erred when it reduced Gonzalez’s conviction for robbery and criminal confinement from Class B to Class C felonies based on double jeopardy concerns. Accordingly, we remand for resentencing with the convictions of robbery and criminal confinement as Class B felonies.
Id. at *3 (footnote omitted).
[4] On remand, the trial court held a hearing, at which no new evidence was
submitted, and resentenced Gonzalez for five Class B felony convictions. The
court ordered Gonzalez to serve consecutive sentences of fifteen years for
robbery, sixteen years for burglary, ten years for confinement, ten years for
conspiracy to commit burglary, and ten years for possession of a firearm by a
serious violent felon. Thus, Gonzalez’s aggregate sentence was again 61 years.
Discussion and Decision [5] In his Summary of Argument, Gonzalez asserts
the trial court then modified the length of the sentence on [robbery] and [confinement] without any direction from the Court of Appeals and without any further evidence being admitted. This clearly was error. While it was necessary for the trial court to follow the directive of the Court of Appeals to amend [those counts] to Class B Felonies, there was no discernible reason to modify the length of the sentences . . . .
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 3 of 6 (Appellant’s Br. at 6.)
[6] First, contrary to Gonzalez’s argument, our opinion did, in fact, give the trial
court authority to modify the sentence lengths. We wrote that we were
remanding “for resentencing with the convictions of robbery and criminal
confinement as Class B felonies.” Gonzalez, No. 20A03-1504-CR-133 at *3. If
we had wanted the trial court to simply enter a new order that called those
crimes Class B felonies, as Gonzalez asserts, we would have told the trial court
to enter a new order without resentencing Gonzalez. See, e.g., O’Connell v. State,
742 N.E.2d 943, 952 (Ind. 2001) (remanding for “a new sentencing order”
because the original sentencing order did not explain the court’s basis for the
sentence).1 But we did not use that language; we ordered the trial court to
“resentenc[e]” him. Gonzalez, No. 20A03-1504-CR-133 at *3.
[7] Second, we disagree “there was no discernible reason for the trial court to
increase the sentence on [robbery] by seven (7) years and the sentence on
[confinement] by two years.” (Appellant’s Br. at 10.) The discernible reason is
that Gonzalez’s convictions are now of Class B, rather than Class C, felonies.
When Gonzalez committed his crimes in 2013, the sentencing range for a Class
C felony was two to eight years, with the advisory sentence being four years,
1 Gonzalez relies on O’Connell as a complete list of “the options available to a trial court when an appellate court sends a cause back to it for resentencing.” (Appellant’s Br. at 9.) However, the Supreme Court remanded O’Connell’s case to the trial court for a new sentencing order that merely explained how the court arrived at O’Connell’s sentence; the Supreme Court did not order O’Connell be resentenced. See O’Connell, 742 N.E.2d at 952-53. Thus, O’Connell does not control the extent of the trial court’s authority when resentencing Gonzalez.
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 4 of 6 Ind. Code § 35-50-2-6 (2005), and the sentencing range for a Class B felony was
six to twenty years, with the advisory sentence being ten years. Ind. Code § 35-
50-2-5 (2005). The trial court, based on its weighing of the aggravators and
mitigators, had imposed maximum sentences of eight years when the
convictions were entered as Class C felonies, and it therefore makes sense that,
when resentencing Gonzalez for crimes that were one felony class higher, the
trial court would wish to impose sentences that were at or above the advisory
sentence. Cf. Lane v. State, 727 N.E.2d 454, 457 (Ind. Ct. App. 2000) (when
appellate court remanded for correction of Lane’s sentence, because trial court
had imposed a fifty-year presumptive sentence after statutory change had made
the presumptive sentence only forty years, trial court was required to enter the
presumptive sentence when resentencing, even though presumptive was ten
years shorter).
[8] Finally, Indiana law provides that
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing May 16 2017, 8:23 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Christopher G. Walter, Attorney General of Indiana P.C. Nappanee, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Armando Gonzalez, Jr., May 16, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1608-CR-2110 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Appellee-Plaintiff Shewmaker, Judge Trial Court Cause No. 20C01-1311-FB-131
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 1 of 6 [1] Armando Gonzalez, Jr., appeals the sentence he received following our remand
for him to be resentenced. As Gonzalez has not demonstrated the sentence
imposed by the trial court is “illegal,” (Appellant’s Br. at 4), we affirm.
Facts and Procedural History [2] When Gonzalez’s case was before us in 2016, we explained:
The State charged Gonzalez with five Class B felonies: robbery while armed with a deadly weapon, burglary, criminal confinement, conspiracy to commit burglary, and unlawful possession of a firearm by a serious violent felon. A jury found Gonzalez guilty of the first four charges. In a second stage of the trial, the court found Gonzalez guilty of unlawful possession of a firearm by a serious violent felon.
On March 12, 2015, over the State’s objection, the trial court reduced the robbery and criminal confinement convictions to Class C felonies because of double jeopardy concerns. It sentenced Gonzalez to eight years for each Class C felony and ordered the sentences served consecutively, for a total of sixteen years. The trial court then sentenced Gonzalez to fifteen years for each Class B felony to be served consecutively, for a total of forty-five years. Gonzalez’s aggregate sentence was sixty-one years.
Gonzalez v. State, No. 20A03-1504-CR-133, slip op. at *2 (Ind. Ct. App. Jan. 12,
2016) (footnotes omitted).
[3] Gonzalez challenged the order that he serve three of his sentences
consecutively, and the State cross-appealed the court’s decision to reduce
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 2 of 6 Gonzalez’s convictions of robbery and criminal confinement to Class C
felonies. Id. at *1. We did not address Gonazalez’s issue. Instead, we
remanded for resentencing after addressing the State’s cross-appeal:
The trial court erred when it reduced Gonzalez’s conviction for robbery and criminal confinement from Class B to Class C felonies based on double jeopardy concerns. Accordingly, we remand for resentencing with the convictions of robbery and criminal confinement as Class B felonies.
Id. at *3 (footnote omitted).
[4] On remand, the trial court held a hearing, at which no new evidence was
submitted, and resentenced Gonzalez for five Class B felony convictions. The
court ordered Gonzalez to serve consecutive sentences of fifteen years for
robbery, sixteen years for burglary, ten years for confinement, ten years for
conspiracy to commit burglary, and ten years for possession of a firearm by a
serious violent felon. Thus, Gonzalez’s aggregate sentence was again 61 years.
Discussion and Decision [5] In his Summary of Argument, Gonzalez asserts
the trial court then modified the length of the sentence on [robbery] and [confinement] without any direction from the Court of Appeals and without any further evidence being admitted. This clearly was error. While it was necessary for the trial court to follow the directive of the Court of Appeals to amend [those counts] to Class B Felonies, there was no discernible reason to modify the length of the sentences . . . .
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 3 of 6 (Appellant’s Br. at 6.)
[6] First, contrary to Gonzalez’s argument, our opinion did, in fact, give the trial
court authority to modify the sentence lengths. We wrote that we were
remanding “for resentencing with the convictions of robbery and criminal
confinement as Class B felonies.” Gonzalez, No. 20A03-1504-CR-133 at *3. If
we had wanted the trial court to simply enter a new order that called those
crimes Class B felonies, as Gonzalez asserts, we would have told the trial court
to enter a new order without resentencing Gonzalez. See, e.g., O’Connell v. State,
742 N.E.2d 943, 952 (Ind. 2001) (remanding for “a new sentencing order”
because the original sentencing order did not explain the court’s basis for the
sentence).1 But we did not use that language; we ordered the trial court to
“resentenc[e]” him. Gonzalez, No. 20A03-1504-CR-133 at *3.
[7] Second, we disagree “there was no discernible reason for the trial court to
increase the sentence on [robbery] by seven (7) years and the sentence on
[confinement] by two years.” (Appellant’s Br. at 10.) The discernible reason is
that Gonzalez’s convictions are now of Class B, rather than Class C, felonies.
When Gonzalez committed his crimes in 2013, the sentencing range for a Class
C felony was two to eight years, with the advisory sentence being four years,
1 Gonzalez relies on O’Connell as a complete list of “the options available to a trial court when an appellate court sends a cause back to it for resentencing.” (Appellant’s Br. at 9.) However, the Supreme Court remanded O’Connell’s case to the trial court for a new sentencing order that merely explained how the court arrived at O’Connell’s sentence; the Supreme Court did not order O’Connell be resentenced. See O’Connell, 742 N.E.2d at 952-53. Thus, O’Connell does not control the extent of the trial court’s authority when resentencing Gonzalez.
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 4 of 6 Ind. Code § 35-50-2-6 (2005), and the sentencing range for a Class B felony was
six to twenty years, with the advisory sentence being ten years. Ind. Code § 35-
50-2-5 (2005). The trial court, based on its weighing of the aggravators and
mitigators, had imposed maximum sentences of eight years when the
convictions were entered as Class C felonies, and it therefore makes sense that,
when resentencing Gonzalez for crimes that were one felony class higher, the
trial court would wish to impose sentences that were at or above the advisory
sentence. Cf. Lane v. State, 727 N.E.2d 454, 457 (Ind. Ct. App. 2000) (when
appellate court remanded for correction of Lane’s sentence, because trial court
had imposed a fifty-year presumptive sentence after statutory change had made
the presumptive sentence only forty years, trial court was required to enter the
presumptive sentence when resentencing, even though presumptive was ten
years shorter).
[8] Finally, Indiana law provides that
on resentencing after the reversal of a conviction in a multicount proceeding, the trial court has “flexibility upon remand, including the ability to increase sentences for individual convictions without giving rise to a presumption of vindictive sentencing, so long as the aggregate sentence is no longer than originally imposed.” In so holding, we explained that “a trial court is likely to view individual sentences in a multi-count proceeding as part of an overall plan, a plan that can be overthrown if one or more of the convictions is reversed or reduced in degree.”
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 5 of 6 Guffey v. State, 42 N.E.3d 152, 163 (Ind. Ct. App. 2015) (internal citations
omitted), trans. denied. If trial courts have the flexibility on remand to increase
sentences for remaining convictions when one conviction has been reversed, see
also Hmurovic v. State, 43 N.E.3d 685, 689 (Ind. Ct. App. 2015) (remanding to
vacate conviction and resentence on the remaining conviction), it would be
illogical to hold trial courts did not have the same flexibility after we required
the trial court to enter certain convictions as more serious felonies.
[9] For all these reasons, we find no error in the trial court imposing a fifteen-year
sentence for Gonzalez’s conviction of Class B felony robbery and a ten-year
sentence for Gonzalez’s conviction of Class B felony criminal confinement.
Accordingly, we affirm.
[10] Affirmed.
Najam, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-2110 | May 16, 2017 Page 6 of 6