Coleman v. State

952 N.E.2d 377, 2011 Ind. App. LEXIS 1631, 2011 WL 3792830
Indiana Court of Appeals·Decided August 26, 2011·No. No. 49A02-1101-CR-12·Published·Cited by 28 cases

Opinion

OPINION

BARNES, Judge.

Case Summary

Zarumin Coleman appeals his sixty-year sentence for one count of Class A felony conspiracy to commit robbery and one count of Class B felony possession of a firearm by a serious violent felon (“SVF”). We affirm in part, reverse in part, and remand.

Issues

The issues before us are:

I. whether Coleman’s sentence exceeded the maximum permissible for a single episode of criminal conduct; and
II. whether his sentence is inappropriate.

Facts1

On January 14, 2008, Tommy Warren told Coleman and Ronald Davis that there was a substantial amount of money and marijuana in a house on North Hovey Street in Indianapolis and that it would be an “easy lick,” or robbery, to take those items because only women lived there. Tr. p. 76. Coleman agreed to be the driver for this robbery, using a vehicle he was “renting” in exchange for drugs, and he and Davis also recruited Donte Hobson and Jasper Frazier to assist them. Warren did not participate any further in the events of that day.

Coleman drove to his girlfriend’s residence and directed her to retrieve a Glock handgun, which she gave to Hobson; Davis eventually obtained the Glock. Frazier obtained a Tech 9 pistol that was in the vehicle Coleman was driving. Coleman then drove to the Hovey Street address. Hobson, who had ridden to the scene with Coleman and the others, apparently walked away from the house after giving advice to Davis and Frazier on how to break into the house. When Davis and Frazier went inside the house by climbing through a window, they found Gina Hunt and Andrea Yarrell hiding behind a bed with their two children, one-year-old Jordan Hunt and four-month-old Charlii Yar-rell. Davis began yelling at the women, demanding to know where the marijuana was located. When the women said that it was no longer there, Davis began shooting both women and their children with the Glock, eventually killing all four of them. Frazier and Davis fled from the scene on foot, and Coleman picked them up at a pre-arranged meeting point. Frazier claimed that he later was confined and threatened by Coleman in his apartment.

In a joint information, the State charged Coleman, Davis, Frazier, Hobson, and Warren with a number of offenses. Davis was charged with four counts of murder [380] and four counts of felony murder, along with Class A felony conspiracy to commit robbery and other offenses. None of the other men were charged with murder or felony murder. Coleman was charged with Class A felony conspiracy to commit robbery, Class B felony possession of a firearm by a SVF,2 and Class D felony criminal confinement.

On November 3, 2010, Coleman pled guilty to Class A felony conspiracy to commit robbery and Class B felony possession of a firearm by a SVF, with the confinement charge to be dismissed. Sentencing was left to the trial court’s discretion. In the plea agreement, the State indicated that it had considered filing murder charges against Coleman, but it did not do so because of his guilty plea. Coleman also agreed to cooperate in any proceedings against his co-defendants. The trial court sentenced Coleman to forty-five years for the conspiracy to commit robbery conviction and fifteen years for the SVF conviction, to be served consecutively for a total of sixty years. Although the official records are not before this court, the parties seem to agree that Coleman’s co-defendants received the following sentences: for Davis, 245 years; for Hobson, thirty-five years; for Frazier, seventy years; and for Warren, ten years. Coleman now appeals his sentence.

Analysis

1. Single Episode of Criminal Conduct

First, we address Coleman’s contention that his sixty-year aggregate sentence exceeded the maximum permissible for engaging in a single episode of criminal conduct. With respect to consecutive sentencing, Indiana Code Section 35-50-1 — 2(c) provides in part:

The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, 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.

If the statutory limitation on consecutive sentencing applies in this case, then Coleman’s aggregate sentence cannot exceed fifty-five years, which is the advisory sentence for murder, the next class of felony above a Class A felony. See Ind.Code § 35-50-2-3(a).

Class A felony robbery is a delineated “crime of violence,” pursuant to Indiana Code Section 35 — 50—1—2(a)(12); conspiracy to commit that offense or any of the delineated “crimes of violence” is not expressly listed as a “crime of violence.” Coléman contends that Class A felony conspiracy to commit robbery cannot be considered a “crime of violence” because it is not expressly listed as such in the statute. The State responds that we should nonetheless consider conspiracy to commit an offense the same as committing that offense itself, apparently conceding that Coleman’s acts of possessing a firearm as a SVF and conspiring to commit robbery constituted a single episode of criminal conduct.3

[381] No Indiana case has directly addressed whether conspiracy to commit a “crime of violence” constitutes commission of a “crime of violence” for purposes of Indiana Code Section 85-50-l-2(e). In at least two previous cases, this court proceeded on the assumption that conspiracy to commit a “crime of violence” was not a “crime of violence,” and then analyzed whether the single episode of criminal conduct rule applied to limit a defendant’s sentence. See Fields v. State, 825 N.E.2d 841, 847 (Ind.Ct.App.2005), trans. denied; Green v. State, 850 N.E.2d 977, 984 (Ind.Ct.App.2006), summarily ajfd in relevant part, 856 N.E.2d 703, 704-05 (Ind.2006). Neither Fields nor Green, however, analyzed or provided any citation for whether conspiracy to commit an offense constitutes a “crime of violence.” The precise issue was neither raised nor argued in those cases. Here, the parties squarely raise the issue.

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Coleman v. State, 952 N.E.2d 377, 2011 Ind. App. LEXIS 1631, 2011 WL 3792830 (Ind. Ct. App. 2011).

952 N.E.2d 377 (Coleman v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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