Keith Gwaltney v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2017
• Docket: 29A04-1610-CR-2283
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2017, 8:26 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James D. Crum Curtis T. Hill, Jr. Coots, Henke & Wheeler, P.C. Attorney General of Indiana Carmel, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Keith Gwaltney, February 28, 2017 Appellant-Defendant, Court of Appeals Case No. 29A04-1610-CR-2283 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Steven R. Nation, Appellee-Plaintiff. Judge Trial Court Cause No. 29D01-1510-CM-8747 29D01-1510-F6-8748

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017 Page 1 of 5 Case Summary and Issue [1] Keith Gwaltney was convicted of possession of a synthetic or lookalike drug as

a Class A misdemeanor and failure to return to lawful detention as a Level 6

felony. The trial court sentenced Gwaltney to an aggregate sentence of two and

one-half years in the Indiana Department of Correction, to be served

consecutively to each of two prior sentences Gwaltney received in the months

leading up to this case. Gwaltney now appeals, raising a single issue, which we

restate as whether the trial court abused its discretion in sentencing him.

Concluding the trial court did not abuse its discretion, we affirm.

Facts and Procedural History [2] In June 2015, Gwaltney was convicted of criminal confinement as a Level 5

felony in Hamilton County Superior Court 1. The trial court sentenced him to

six years in prison (“Sentence One”), a portion of which was to be served on

work release. While serving Sentence One on work release in September 2015,

Gwaltney was found in possession of spice, failed to return to work release, and

contacted the victim of his criminal confinement crime despite a no contact

order. Thereafter, the State charged Gwaltney with invasion of privacy as a

Class A misdemeanor in Hamilton County Superior Court 3. The State also

charged Gwaltney with possession of a synthetic or lookalike drug as a Class A

misdemeanor and failure to return to lawful detention as a Level 6 felony; each

of these charges was filed in Superior Court 1.

Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017 Page 2 of 5 [3] On April 22, 2016, Gwaltney was convicted of invasion of privacy as a Class A

misdemeanor in Superior 3 and sentenced to one year executed in the

Department of Correction (“Sentence Two”), to be served consecutively to

Sentence One. On September 22, 2016, Gwaltney was convicted of possession

of a synthetic drug as a Class A misdemeanor and failure to return to lawful

detention as a Level 6 felony. The trial court sentenced him to one year

executed for the possession conviction and two and one-half years executed for

the failure to return conviction, to be served concurrently (“Sentence Three”).

The trial court further ordered Sentence Three be served consecutively to

Sentence One and concurrently with Sentence Two.

[4] The following day, the trial court reconvened the sentencing hearing in order to

clarify Gwaltney’s sentence. The trial court explained, “[s]entencing hearing

occurred yesterday . . . and the Court in making the [sentencing] statement

included . . . that the sentences were concurrent with [Sentence Two]. When I

was reviewing the orders to sign on this, that was not my intent and I’m now

going to correct the record . . . .” Transcript of Appeal at 16. Thus, the trial

court amended its sentencing order and ordered Sentence Three be served

consecutively to Sentence One and consecutively to Sentence Two. This appeal

ensued.

Discussion and Decision [5] Gwaltney contends the trial court abused its discretion in sentencing him.

Specifically, he claims the trial court erroneously concluded it could not as a

Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017 Page 3 of 5 matter of law order Sentence Three run concurrent with Sentence Two, when in

fact the court was not obligated to run these sentences consecutively but had

discretion to order the sentences be served concurrently.1 He therefore requests

we reverse and remand to the trial court with instructions to order Sentence

Three run concurrent with Sentence Two. The State counters the trial court

had always intended to impose consecutive sentences and it properly clarified

its sentencing statement to reflect its intent. We agree with the State.

[6] We review a trial court’s sentencing decision for an abuse of discretion.

McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). An abuse of discretion

occurs when the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before the court or when the court misinterprets the

law. Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied.

[7] Gwaltney turns our attention to a single statement at the clarification hearing

where the trial court stated, “[T]he Court’s intention was to be sure that I did

not set aside what the [Superior 3] Judge had done. And the [Superior 3] Judge

had ordered that [Sentence Two] was a consecutive sentence to [Sentence

One].” Tr. of Appeal at 19. Thus, according to Gwaltney, the trial court was

under the impression it was required to order Sentence Three be served

consecutively to Sentence Two because doing otherwise would “negatively

1 Gwaltney agrees his sentence has to be served consecutively to Sentence One. See Appellant’s Brief at 7. Moreover, he does not challenge his sentence on the basis the trial court did not have the authority to order Sentence Three be served consecutively to Sentence Two. As the State points out, there were valid reasons supporting consecutive sentences.

Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017 Page 4 of 5 affect the Superior Court 3 judge’s intent for [Sentence Two] to be consecutive

to [Sentence One].” Appellant’s Brief at 7. Although we certainly

acknowledge some confusion occurred in sentencing Gwaltney, a thorough

review of the clarification hearing transcript makes clear the trial court always

intended to order Sentence Three be served consecutively to Sentence Two. See

Tr. of Appeal at 20 (trial court noting the State’s assertion that the parties

convened for the clarification hearing “to clarify and make sure that the order

shows the Court’s original intention yesterday morning” was “correct”). After

reviewing its statement ordering Sentence Three be served concurrently with

Sentence Two, the trial court recognized its mistake and promptly scheduled a

hearing the following day to clarify its order to reflect its original intent to order

Sentence Three be served consecutively to Sentence Two. We therefore

conclude the trial court did not abuse its discretion in ordering Sentence Three

be served consecutively to Sentence Two.

Conclusion [8] The trial court did not abuse its discretion in sentencing Gwaltney.

Accordingly, we affirm.

[9] Affirmed.

Kirsch, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 29A04-1610-CR-2283 | February 28, 2017 Page 5 of 5