MEMORANDUM DECISION Dec 15 2015, 6:04 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Timothy P. Broden Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James L. Reynolds, Jr., December 15, 2015
Appellant-Defendant, Court of Appeals Cause No. 79A02-1504-CR-204 v. Appeal from the Tippecanoe Superior Court
State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge
Trial Court Cause No. 79D05-1410-F6-123
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 1 of 7 Case Summary [1] James Reynolds, Jr., appeals his convictions for Level 6 felony residential entry
and Class B misdemeanor criminal mischief and his two-and-one-half-year
sentence for the offenses. We affirm in part and vacate in part.
Issues [2] Reynolds raises two issues, which we restate as:
I. whether his convictions violate double jeopardy principles; and
II. whether his sentence is inappropriate.
Facts [3] Reynolds was Lori Roberts’s longtime boyfriend, and the couple lived together.
Early in the morning on October 27, 2014, Roberts was frustrated that
Reynolds would not turn his music down and walked to a friend’s nearby
house. Reynolds then went to the house looking for Roberts, and she asked
him to leave. Reynolds left, but he returned a few minutes later. He knocked
on the glass door to the porch. When no one answered the door, he broke the
glass, went into the porch, and then went into Roberts’s friend’s house. Roberts
and Reynolds fought, and Roberts’s friend called 911.
[4] The State charged Reynolds with Level 6 felony residential entry, Level 6
felony criminal confinement, Class B misdemeanor battery, and Class A
misdemeanor criminal mischief for breaking the glass door. A jury found Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 2 of 7 Reynolds guilty of the residential entry and criminal mischief charges. At
sentencing, the trial court entered judgments of conviction on both counts and
sentenced Reynolds to two-and-one-half years for the residential entry and to
180 days for the criminal mischief. Because of double jeopardy concerns, the
trial court ordered the sentences to be served concurrently. The trial court
ordered Reynolds to serve one year executed and suspended the remainder of
the sentence to unsupervised probation at a level determined by the Tippecanoe
County Community Corrections. Reynolds now appeals.
Analysis I. Double Jeopardy
[5] Reynolds argues that his convictions for residential entry and criminal mischief
are based on the same evidentiary facts—him breaking the glass door—and
violate the Indiana Constitution’s prohibition against double jeopardy. The
State does not dispute this claim and asserts that the appropriate remedy is to
vacate one of the convictions. Accordingly, we conclude the criminal mischief
conviction must be vacated.
II. Sentencing
[6] Reynolds also argues that his two-and-one-half-year sentence is inappropriate.
Indiana Appellate Rule 7(B) permits us to revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender. Although Appellate Rule 7(B) does not require us to be
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 3 of 7 “extremely” deferential to a trial court’s sentencing decision, we still must give
due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We also understand and recognize the unique perspective
a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[7] The principal role of Appellate Rule 7(B) review “should be to attempt to
leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). We “should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Appellate Rule 7(B), we may consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
[8] Reynolds contends that, although the trial court suspended one-and-one-half
years of his sentence, it is tantamount to a two-and-one-half year executed
sentence because participation in a community corrections program was a
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 4 of 7 condition of probation. In support of this argument, Reynolds relies on a
concurring in result opinion in Shaffer v. State, 755 N.E.2d 1193 (Ind. Ct. App.
2001). In her concurring opinion, Judge Vaidik concluded “that placement in
community corrections programs if it is a condition of probation must also be
considered suspended time. However, I find that direct placement in
community corrections is a different beast than probation and should be treated
accordingly.” Shaffer, 755 N.E.2d at 1198 (Vaidik, J., concurring).
[9] Even if this position had been adopted by the majority in Shaffer, Reynolds
provides us with no analysis of the current statutory scheme as it relates to
community corrections and suspended sentences. Moreover, the trial court’s
written sentencing order specified “Defendant is to serve one (1) year executed
in Count I in the Indiana Department of Corrections . . . . The defendant’s
sentence calls for an executed term of imprisonment of 365 days.” App. p. 12.
The order further provides, “Defendant is placed on UNSUPERVISED
PROBATION for a period of 1 ½ years on the following terms . . . 1 ½ years on
unsupervised probation to be served at a level to be determined by the
Tippecanoe County Community Corrections[.]” Id. Thus, the community
corrections assignment was a condition of probation, which was ordered as part
of the suspended sentence.
[10] Further, at the sentencing hearing, the trial court explained that this
arrangement would give Reynolds a chance to “get out,” to go to school, and to
work. Tr.
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MEMORANDUM DECISION Dec 15 2015, 6:04 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Timothy P. Broden Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James L. Reynolds, Jr., December 15, 2015
Appellant-Defendant, Court of Appeals Cause No. 79A02-1504-CR-204 v. Appeal from the Tippecanoe Superior Court
State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge
Trial Court Cause No. 79D05-1410-F6-123
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 1 of 7 Case Summary [1] James Reynolds, Jr., appeals his convictions for Level 6 felony residential entry
and Class B misdemeanor criminal mischief and his two-and-one-half-year
sentence for the offenses. We affirm in part and vacate in part.
Issues [2] Reynolds raises two issues, which we restate as:
I. whether his convictions violate double jeopardy principles; and
II. whether his sentence is inappropriate.
Facts [3] Reynolds was Lori Roberts’s longtime boyfriend, and the couple lived together.
Early in the morning on October 27, 2014, Roberts was frustrated that
Reynolds would not turn his music down and walked to a friend’s nearby
house. Reynolds then went to the house looking for Roberts, and she asked
him to leave. Reynolds left, but he returned a few minutes later. He knocked
on the glass door to the porch. When no one answered the door, he broke the
glass, went into the porch, and then went into Roberts’s friend’s house. Roberts
and Reynolds fought, and Roberts’s friend called 911.
[4] The State charged Reynolds with Level 6 felony residential entry, Level 6
felony criminal confinement, Class B misdemeanor battery, and Class A
misdemeanor criminal mischief for breaking the glass door. A jury found Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 2 of 7 Reynolds guilty of the residential entry and criminal mischief charges. At
sentencing, the trial court entered judgments of conviction on both counts and
sentenced Reynolds to two-and-one-half years for the residential entry and to
180 days for the criminal mischief. Because of double jeopardy concerns, the
trial court ordered the sentences to be served concurrently. The trial court
ordered Reynolds to serve one year executed and suspended the remainder of
the sentence to unsupervised probation at a level determined by the Tippecanoe
County Community Corrections. Reynolds now appeals.
Analysis I. Double Jeopardy
[5] Reynolds argues that his convictions for residential entry and criminal mischief
are based on the same evidentiary facts—him breaking the glass door—and
violate the Indiana Constitution’s prohibition against double jeopardy. The
State does not dispute this claim and asserts that the appropriate remedy is to
vacate one of the convictions. Accordingly, we conclude the criminal mischief
conviction must be vacated.
II. Sentencing
[6] Reynolds also argues that his two-and-one-half-year sentence is inappropriate.
Indiana Appellate Rule 7(B) permits us to revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender. Although Appellate Rule 7(B) does not require us to be
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 3 of 7 “extremely” deferential to a trial court’s sentencing decision, we still must give
due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We also understand and recognize the unique perspective
a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[7] The principal role of Appellate Rule 7(B) review “should be to attempt to
leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). We “should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Appellate Rule 7(B), we may consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
[8] Reynolds contends that, although the trial court suspended one-and-one-half
years of his sentence, it is tantamount to a two-and-one-half year executed
sentence because participation in a community corrections program was a
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 4 of 7 condition of probation. In support of this argument, Reynolds relies on a
concurring in result opinion in Shaffer v. State, 755 N.E.2d 1193 (Ind. Ct. App.
2001). In her concurring opinion, Judge Vaidik concluded “that placement in
community corrections programs if it is a condition of probation must also be
considered suspended time. However, I find that direct placement in
community corrections is a different beast than probation and should be treated
accordingly.” Shaffer, 755 N.E.2d at 1198 (Vaidik, J., concurring).
[9] Even if this position had been adopted by the majority in Shaffer, Reynolds
provides us with no analysis of the current statutory scheme as it relates to
community corrections and suspended sentences. Moreover, the trial court’s
written sentencing order specified “Defendant is to serve one (1) year executed
in Count I in the Indiana Department of Corrections . . . . The defendant’s
sentence calls for an executed term of imprisonment of 365 days.” App. p. 12.
The order further provides, “Defendant is placed on UNSUPERVISED
PROBATION for a period of 1 ½ years on the following terms . . . 1 ½ years on
unsupervised probation to be served at a level to be determined by the
Tippecanoe County Community Corrections[.]” Id. Thus, the community
corrections assignment was a condition of probation, which was ordered as part
of the suspended sentence.
[10] Further, at the sentencing hearing, the trial court explained that this
arrangement would give Reynolds a chance to “get out,” to go to school, and to
work. Tr. p 227. We are not convinced that Reynolds’s sentence is the
equivalent of a two-and-one-half-year executed sentence.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 5 of 7 [11] Regarding the nature of the offense, Reynolds ignored Roberts’s request to
leave and, when no one answered the door, he broke the glass door, causing it
to shatter. He then entered Roberts’s friend’s home, and Reynolds and Roberts
argued, which resulted in Roberts’s friend calling 911. Although Roberts used
Reynolds’s money to have the door repaired, we cannot say that the nature of
the offense necessitates a reduction of Reynolds’s sentence.
[12] As for his character, Reynolds has an extensive criminal history including at
least seven misdemeanor convictions and five felony convictions as well as four
other unspecified convictions in Illinois and a felony federal firearms
conviction. Many other charges have been filed and dismissed against
Reynolds, showing near constant contact with the criminal justice system since
1985. Also troubling is the trial court’s assessment that Reynolds did not think
the incident was “a big deal” and still thinks “it’s all a big accident.” Tr. p. 226.
Given his criminal history and the cavalier attitude about his most recent
criminal activity, Reynolds has not established that his sentence is
inappropriate.
Conclusion [13] Reynolds’s criminal mischief conviction violates double jeopardy principles and
must be vacated. However, Reynolds has not shown that his sentence is
inappropriate. We affirm in part and vacate in part.
[14] Affirmed in part and vacated in part.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 6 of 7 Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015 Page 7 of 7