MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 08 2016, 8:42 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 Daniel Dixon Gregory F. Zoeller Lawrence County Attorney General of Indiana Public Defender Agency Richard C. Webster Bedford, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jesse B. Craig, March 8, 2016 Appellant-Defendant, Court of Appeals Case No. 47A01-1508-CR-1113 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable Michael A. Appellee-Plaintiff Robbins, Judge Trial Court Cause No. 47D01-1409-F6-1238
Mathias, Judge.
[1] Jesse Craig (“Craig”) was convicted in Lawrence Superior Court of Level 6
felony escape and pleaded guilty to being a habitual offender. Craig was
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 1 of 6 ordered to serve an aggregate eight-and-one-half-year sentence in the
Department of Correction. Craig appeals and argues that his sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
[2] We affirm but remand for proceedings consistent with this opinion.
Facts and Procedural History
[3] On September 16, 2014, Lawrence Superior Court ordered Craig to pre-trial
house arrest with electronic monitoring after the State charged him with Level 6
felony domestic battery. Around 1:15 p.m. that same day, Craig met with
Director of Community Corrections, Chad Shew (“Director Shew”). Director
Shew explained the terms and conditions for participation in the home
detention program with Craig. Specifically, Director Shew highlighted Rule 14,
which explained that if Craig left or failed to return to his residence without
permission from Community Corrections that he would be considered an
absconder and could be charged with the crime of escape.
[4] Craig initialed and signed the Home Detention Participant Conditions and
Agreement. Craig also provided Director Shew with an address on Johnson
Lane in Bedford, Indiana for purposes of home detention. Director Shew then
placed an electronic monitoring bracelet on Craig and instructed him to go
home immediately to await officers, who would set up the electronic
monitoring equipment. Around 4:30 p.m., Officers Emily Riggs (“Officer
Riggs”) and Bryce Bolton (“Officer Bolton”) arrived at the Johnson Lane
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 2 of 6 residence to activate the bracelet and install the home detention equipment.
Craig was not present at the home. Officers Riggs and Bolton drove around the
area attempting to locate Craig but could not find him. Officer Riggs then
notified Director Shew that the electronic monitoring system was not set up
because Craig was not at the Johnson Lane residence. Based on this
information, Director Shew obtained an arrest warrant for Craig.
[5] Over a month later, on October 31, 2014, the Bedford Police Department
received a tip concerning Craig’s location. Officers reported to an apartment
located on Hillcrest Road in Bedford, Indiana and inquired about Craig. A
woman answered the door and directed the officers upstairs, where they found
Craig hiding under a mattress. Craig was still wearing his un-activated
electronic monitoring bracelet at the time of arrest.
[6] The State charged Craig with Level 6 felony escape on September 19, 2014, and
added a habitual offender violation on April 13, 2015. A jury trial was held on
June 17, 2015. The jury convicted Craig of Level 6 felony escape, and Craig
pleaded guilty to the habitual offender enhancement. The court ordered Craig
to serve consecutive sentences of two-and-one-half years for the Level 6 felony
and six years for being a habitual offender. Craig now appeals.
Discussion
[7] Craig argues that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. Under Indiana Appellate Rule 7(B):
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 3 of 6 [We] may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.
When reviewing a sentence, our principal role is to “leaven the outliers” rather
than necessarily achieve what is perceived as the “correct” result. Conley v. State,
972 N.E.2d 864, 876 (Ind. 2012). We do not look to determine if the sentence
was appropriate; instead we look to make sure the sentence was not
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Sentencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008) (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.
1996)). Therefore, the defendant has the burden of persuading us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed in assessing the nature of the
offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007). The “character of
the offender” portion of the sentence involves consideration of the aggravating
and mitigating circumstances and general considerations. Clara v. State, 899
N.E.2d 733, 735 (Ind. Ct. App. 2009).
[9] Craig was convicted of Level 6 felony escape and of being a habitual offender.
The sentencing range for a Level 6 felony is between six months and two-and-
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 4 of 6 one-half years, with the advisory sentence being one year. See Ind. Code § 35-
50-2-7(b). The sentencing range for a habitual offender convicted of Level 6
felony is between two years and six years. See Ind. Code § 35-50-2-8(i)(2). The
trial court imposed a consecutive sentence of two-and-one-half years for Level 6
felony escape and six years for the habitual offender enhancement.
[10] Concerning the nature of the offense, Director Shew instructed Craig to return
immediately home after the meeting so that the officers could set up the
electronic monitoring system. Craig also signed the Home Detention
Participant Conditions and Agreement in which the rule about not being
present at home could result in being charged with Level 6 felony escape was
highlighted. Further, Director Shew placed an electronic monitoring bracelet on
Craig’s leg.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 08 2016, 8:42 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 Daniel Dixon Gregory F. Zoeller Lawrence County Attorney General of Indiana Public Defender Agency Richard C. Webster Bedford, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jesse B. Craig, March 8, 2016 Appellant-Defendant, Court of Appeals Case No. 47A01-1508-CR-1113 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable Michael A. Appellee-Plaintiff Robbins, Judge Trial Court Cause No. 47D01-1409-F6-1238
Mathias, Judge.
[1] Jesse Craig (“Craig”) was convicted in Lawrence Superior Court of Level 6
felony escape and pleaded guilty to being a habitual offender. Craig was
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 1 of 6 ordered to serve an aggregate eight-and-one-half-year sentence in the
Department of Correction. Craig appeals and argues that his sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
[2] We affirm but remand for proceedings consistent with this opinion.
Facts and Procedural History
[3] On September 16, 2014, Lawrence Superior Court ordered Craig to pre-trial
house arrest with electronic monitoring after the State charged him with Level 6
felony domestic battery. Around 1:15 p.m. that same day, Craig met with
Director of Community Corrections, Chad Shew (“Director Shew”). Director
Shew explained the terms and conditions for participation in the home
detention program with Craig. Specifically, Director Shew highlighted Rule 14,
which explained that if Craig left or failed to return to his residence without
permission from Community Corrections that he would be considered an
absconder and could be charged with the crime of escape.
[4] Craig initialed and signed the Home Detention Participant Conditions and
Agreement. Craig also provided Director Shew with an address on Johnson
Lane in Bedford, Indiana for purposes of home detention. Director Shew then
placed an electronic monitoring bracelet on Craig and instructed him to go
home immediately to await officers, who would set up the electronic
monitoring equipment. Around 4:30 p.m., Officers Emily Riggs (“Officer
Riggs”) and Bryce Bolton (“Officer Bolton”) arrived at the Johnson Lane
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 2 of 6 residence to activate the bracelet and install the home detention equipment.
Craig was not present at the home. Officers Riggs and Bolton drove around the
area attempting to locate Craig but could not find him. Officer Riggs then
notified Director Shew that the electronic monitoring system was not set up
because Craig was not at the Johnson Lane residence. Based on this
information, Director Shew obtained an arrest warrant for Craig.
[5] Over a month later, on October 31, 2014, the Bedford Police Department
received a tip concerning Craig’s location. Officers reported to an apartment
located on Hillcrest Road in Bedford, Indiana and inquired about Craig. A
woman answered the door and directed the officers upstairs, where they found
Craig hiding under a mattress. Craig was still wearing his un-activated
electronic monitoring bracelet at the time of arrest.
[6] The State charged Craig with Level 6 felony escape on September 19, 2014, and
added a habitual offender violation on April 13, 2015. A jury trial was held on
June 17, 2015. The jury convicted Craig of Level 6 felony escape, and Craig
pleaded guilty to the habitual offender enhancement. The court ordered Craig
to serve consecutive sentences of two-and-one-half years for the Level 6 felony
and six years for being a habitual offender. Craig now appeals.
Discussion
[7] Craig argues that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. Under Indiana Appellate Rule 7(B):
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 3 of 6 [We] may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.
When reviewing a sentence, our principal role is to “leaven the outliers” rather
than necessarily achieve what is perceived as the “correct” result. Conley v. State,
972 N.E.2d 864, 876 (Ind. 2012). We do not look to determine if the sentence
was appropriate; instead we look to make sure the sentence was not
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Sentencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008) (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.
1996)). Therefore, the defendant has the burden of persuading us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed in assessing the nature of the
offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007). The “character of
the offender” portion of the sentence involves consideration of the aggravating
and mitigating circumstances and general considerations. Clara v. State, 899
N.E.2d 733, 735 (Ind. Ct. App. 2009).
[9] Craig was convicted of Level 6 felony escape and of being a habitual offender.
The sentencing range for a Level 6 felony is between six months and two-and-
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 4 of 6 one-half years, with the advisory sentence being one year. See Ind. Code § 35-
50-2-7(b). The sentencing range for a habitual offender convicted of Level 6
felony is between two years and six years. See Ind. Code § 35-50-2-8(i)(2). The
trial court imposed a consecutive sentence of two-and-one-half years for Level 6
felony escape and six years for the habitual offender enhancement.
[10] Concerning the nature of the offense, Director Shew instructed Craig to return
immediately home after the meeting so that the officers could set up the
electronic monitoring system. Craig also signed the Home Detention
Participant Conditions and Agreement in which the rule about not being
present at home could result in being charged with Level 6 felony escape was
highlighted. Further, Director Shew placed an electronic monitoring bracelet on
Craig’s leg.
[11] Craig knew that he was supposed to return to the Johnson Lane address to
begin home detention. Instead, Craig disregarded the agreement he had just
signed and hid from Community Corrections and the police for over a month
before he was found and arrested at a different address in Bedford.
[12] At the sentencing hearing, the trial court determined that Craig had a
significant criminal history, with eleven prior felony convictions, and that Craig
had previously violated terms and conditions of probation, parole, community
correction, or pre-trial release. It was clear to the trial court and is likewise clear
to us that Craig has not learned from his criminal past and his prior encounters
with the justice system. We accord considerable deference to the trial court’s
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 5 of 6 sentencing discretion and conclude that the court’s imposition of a maximum
aggregate eight-and-one-half-year sentence was not inappropriate in light of the
nature of the offense and the character of the offender.
[13] However, as the State addressed in its brief, the trial court incorrectly entered a
separate six-year sentence for the habitual offender conviction to be served
consecutive to the two-and-one half-year sentence for Level 6 felony escape. It
is well settled that a habitual offender finding does not constitute a separate
crime, nor does it result in a separate sentence. See Ind. Code § 35-50-2-8.
Rather, a habitual offender finding results in a sentence enhancement imposed
upon the conviction of a subsequent felony. Harris v. State, 964 N.E.2d 920, 927
(Ind. Ct. App. 2012) (citing Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.
2011)), trans. denied. We therefore remand to the trial court for correction of the
sentencing order, so that it reflects the six-year habitual offender sentence serves
as an enhancement of the two-and-one-half year Level 6 felony escape sentence.
[14] Affirmed and remanded for proceedings consistent with this opinion.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 47A01-1508-CR-1113 | March 8, 2016 Page 6 of 6