MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Dec 15 2015, 6:36 am 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 J. Clayton Miller Gregory F. Zoeller Jordan Law, LLC Attorney General of Indiana Richmond, Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Shuminoff, December 15, 2015
Appellant-Defendant, Court of Appeals Case No. 89A01-1505-CR-502 v. Appeal from the Wayne Superior Court State of Indiana, The Honorable Gregory A. Horn, Judge Appellee-Plaintiff. Cause No. 89D02-1206-FC-42
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Michael Shuminoff (Shuminoff), appeals his sentence
after pleading guilty to four Counts of burglary, Class C felonies, Ind. Code §
35-43-2-1 (2013), and his adjudication as an habitual offender, I.C. § 35-50-2-8.
[2] We affirm.
ISSUE
[3] Shuminoff raises one issue on appeal, which we restate as: Whether the trial
court abused its discretion when it determined that the four burglaries did not
constitute a single episode of criminal conduct for purposes of sentencing.
FACTS AND PROCEDURAL HISTORY
[4] Over a span of nineteen days, Shuminoff committed four burglaries in three
different businesses in Richmond, Indiana. On May 29, 2012, Shuminoff broke
into and entered into the Primex Plastics Plant, where he stole a security
camera and damaged two vending machines to obtain the money that was
inside. Four days later, on June 2, 2012, Shuminoff broke into and entered
Mathew International Casket, where he stole money out of various vending
machines. Thereafter, on June 10, 2012, Shuminoff again broke into and
entered Primex Plastics Plant where he destroyed two vending machines to
steal the money. Lastly, on June 17, 2012, police officers were dispatched to
the Mosey Manufacturing Plant on a report that “an unknown individual had
been in the break room of the plant and that the change machine had been
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 2 of 7 shoved back into the wall and had a screwdriver jammed into it as well as the
coffee machine had been shoved over.” (Appellant’s App. p. 15). The officers
located Shuminoff in a small office inside Mosey Manufacturing Plant. He
admitted to having committed all four burglaries.
[5] On June 19, 2012, the State filed an Information charging Shuminoff with four
Counts of burglary, Class C felonies, as well as an Information for an habitual
offender enhancement. On February 5, 2015, Shuminoff entered an open plea
as to the four burglary Counts and the habitual offender charge. On March 4,
2015, the trial court conducted a sentencing hearing. During the hearing,
Shuminoff argued that the four burglaries constituted a single episode of
criminal conduct. The trial court ordered both parties to brief “as to what
exactly is an episode and why [Shuminoff] fits it or why his doesn’t fit it.”
(Transcript p. 29). On April 27, 2015, the trial court resumed the sentencing
hearing and found that the burglaries were not “a connected series of offenses
that are closely connected in time, place, and circumstance.” (Tr. p. 35).
Accordingly, the trial court sentenced Shuminoff to seven years on each Count
with no time suspended, with Counts I, II, and III to run consecutively, and
Count IV to run concurrently with Counts I through III. Count I was enhanced
by ten years for the habitual offender adjudication. In sum, the trial court
imposed an aggregate sentence of thirty-one years with no time suspended.
[6] Shuminoff now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 3 of 7 [7] Shuminoff contends that the trial court abused its discretion in ordering
consecutive sentences after finding that the four burglaries did not constitute a
single episode of criminal conduct because they were not closely connected in
time, place, and circumstance.
[8] In general, a trial court cannot order consecutive sentences in the absence of
express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006).
“‘A sentence that is contrary to or violative of a penalty mandated by statute is
illegal in the sense that it is without statutory authorization.’” Id. (quoting
Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)). “An appellate claim of
sentencing error is subject to review for abuse of trial court discretion; reversal
results ‘only if there has been a manifest abuse of discretion.’” Reynolds v. State,
657 N.E.2d 438, 440 (Ind. Ct. App. 1995) (quoting Fugate v. State, 608 N.E.2d
1370, 1374 (Ind. 1993)).
[9] Indiana Code section 35-50-1-2(c)(2) provides that except for statutory crimes of
violence—which burglary is not—“the total of the consecutive terms of
imprisonment . . . 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.” The term
“episode of criminal conduct” has been statutorily defined as “offenses or a
connected series of offenses that are closely related in time, place, and
circumstance.” I.C. § 35-50-1-2(b). “Whether certain offenses constitute a
single episode of criminal conduct is a fact-sensitive inquiry to be determined by
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 4 of 7 the trial court before it is subject to appellate review. Schlichter v. State, 779
N.E.2d 1155, 1157 (Ind. 2002).
[10] In support of his argument that the four burglaries are part of one episode of
criminal conduct and his sentence should be reduced to ten years, 1 Shuminoff
relies on Henson v. State, 881 N.E.2d 36 (Ind. Ct. App. 2008), trans. denied, and
Gallien v. State, 19 N.E.3d 303 (Ind. Ct. App. 2014), trans. denied. In Henson,
Henson was convicted of burglarizing two neighboring garages during the early
morning hours of the same day. Henson, 881 N.E.2d at 39. Because “the
burglaries were ‘closely related in time, place, and circumstance,’” this court
found them to be part of one single episode of criminal conduct. Id. (quoting
I.C. § 35-50-1-2(b)). Similarly, in Gallien, the defendant committed two
separate burglaries in two different business within the same morning. Gallien,
19 N.E.3d at 305. The trial court declined to find a single episode of criminal
conduct and imposed consecutive sentences. Id. at 308. In post-conviction
proceedings, we concluded that Gallien’s appellate counsel was ineffective for
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Dec 15 2015, 6:36 am 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 J. Clayton Miller Gregory F. Zoeller Jordan Law, LLC Attorney General of Indiana Richmond, Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Shuminoff, December 15, 2015
Appellant-Defendant, Court of Appeals Case No. 89A01-1505-CR-502 v. Appeal from the Wayne Superior Court State of Indiana, The Honorable Gregory A. Horn, Judge Appellee-Plaintiff. Cause No. 89D02-1206-FC-42
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Michael Shuminoff (Shuminoff), appeals his sentence
after pleading guilty to four Counts of burglary, Class C felonies, Ind. Code §
35-43-2-1 (2013), and his adjudication as an habitual offender, I.C. § 35-50-2-8.
[2] We affirm.
ISSUE
[3] Shuminoff raises one issue on appeal, which we restate as: Whether the trial
court abused its discretion when it determined that the four burglaries did not
constitute a single episode of criminal conduct for purposes of sentencing.
FACTS AND PROCEDURAL HISTORY
[4] Over a span of nineteen days, Shuminoff committed four burglaries in three
different businesses in Richmond, Indiana. On May 29, 2012, Shuminoff broke
into and entered into the Primex Plastics Plant, where he stole a security
camera and damaged two vending machines to obtain the money that was
inside. Four days later, on June 2, 2012, Shuminoff broke into and entered
Mathew International Casket, where he stole money out of various vending
machines. Thereafter, on June 10, 2012, Shuminoff again broke into and
entered Primex Plastics Plant where he destroyed two vending machines to
steal the money. Lastly, on June 17, 2012, police officers were dispatched to
the Mosey Manufacturing Plant on a report that “an unknown individual had
been in the break room of the plant and that the change machine had been
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 2 of 7 shoved back into the wall and had a screwdriver jammed into it as well as the
coffee machine had been shoved over.” (Appellant’s App. p. 15). The officers
located Shuminoff in a small office inside Mosey Manufacturing Plant. He
admitted to having committed all four burglaries.
[5] On June 19, 2012, the State filed an Information charging Shuminoff with four
Counts of burglary, Class C felonies, as well as an Information for an habitual
offender enhancement. On February 5, 2015, Shuminoff entered an open plea
as to the four burglary Counts and the habitual offender charge. On March 4,
2015, the trial court conducted a sentencing hearing. During the hearing,
Shuminoff argued that the four burglaries constituted a single episode of
criminal conduct. The trial court ordered both parties to brief “as to what
exactly is an episode and why [Shuminoff] fits it or why his doesn’t fit it.”
(Transcript p. 29). On April 27, 2015, the trial court resumed the sentencing
hearing and found that the burglaries were not “a connected series of offenses
that are closely connected in time, place, and circumstance.” (Tr. p. 35).
Accordingly, the trial court sentenced Shuminoff to seven years on each Count
with no time suspended, with Counts I, II, and III to run consecutively, and
Count IV to run concurrently with Counts I through III. Count I was enhanced
by ten years for the habitual offender adjudication. In sum, the trial court
imposed an aggregate sentence of thirty-one years with no time suspended.
[6] Shuminoff now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 3 of 7 [7] Shuminoff contends that the trial court abused its discretion in ordering
consecutive sentences after finding that the four burglaries did not constitute a
single episode of criminal conduct because they were not closely connected in
time, place, and circumstance.
[8] In general, a trial court cannot order consecutive sentences in the absence of
express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006).
“‘A sentence that is contrary to or violative of a penalty mandated by statute is
illegal in the sense that it is without statutory authorization.’” Id. (quoting
Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)). “An appellate claim of
sentencing error is subject to review for abuse of trial court discretion; reversal
results ‘only if there has been a manifest abuse of discretion.’” Reynolds v. State,
657 N.E.2d 438, 440 (Ind. Ct. App. 1995) (quoting Fugate v. State, 608 N.E.2d
1370, 1374 (Ind. 1993)).
[9] Indiana Code section 35-50-1-2(c)(2) provides that except for statutory crimes of
violence—which burglary is not—“the total of the consecutive terms of
imprisonment . . . 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.” The term
“episode of criminal conduct” has been statutorily defined as “offenses or a
connected series of offenses that are closely related in time, place, and
circumstance.” I.C. § 35-50-1-2(b). “Whether certain offenses constitute a
single episode of criminal conduct is a fact-sensitive inquiry to be determined by
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 4 of 7 the trial court before it is subject to appellate review. Schlichter v. State, 779
N.E.2d 1155, 1157 (Ind. 2002).
[10] In support of his argument that the four burglaries are part of one episode of
criminal conduct and his sentence should be reduced to ten years, 1 Shuminoff
relies on Henson v. State, 881 N.E.2d 36 (Ind. Ct. App. 2008), trans. denied, and
Gallien v. State, 19 N.E.3d 303 (Ind. Ct. App. 2014), trans. denied. In Henson,
Henson was convicted of burglarizing two neighboring garages during the early
morning hours of the same day. Henson, 881 N.E.2d at 39. Because “the
burglaries were ‘closely related in time, place, and circumstance,’” this court
found them to be part of one single episode of criminal conduct. Id. (quoting
I.C. § 35-50-1-2(b)). Similarly, in Gallien, the defendant committed two
separate burglaries in two different business within the same morning. Gallien,
19 N.E.3d at 305. The trial court declined to find a single episode of criminal
conduct and imposed consecutive sentences. Id. at 308. In post-conviction
proceedings, we concluded that Gallien’s appellate counsel was ineffective for
failing to raise the consecutive sentencing issue on direct appeal. Id. Finding
“the fact that two different businesses were burglarized” was not dispositive, we
focused on “the small distance between the two burglaries, the short amount of
time between them and the apparent scheme that tied them together” to
1 The advisory sentence for a Class B felony, which is one Class of felony higher than the felonies Shuminoff was charged with, is ten years. See I.C. § 35-50-2-5.
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 5 of 7 conclude that both burglaries were “closely related in time, place, and
circumstance.” Id. at 310.
[11] In response, the State points to Williams v. State, 891 N.E.2d 621 (Ind. Ct. App.
2008), and Reynolds v. State, 657 N.E.2d 438 (Ind. Ct. App. 1995). In Williams,
we focused on “the timing of the offenses and the simultaneous and
contemporaneous nature, if any, of the crimes” while “additional guidance on
the question can be obtained by considering whether the alleged conduct was so
closely related [] that a complete account of one charge cannot be related
without referring to the details of the other charge.” Williams, 891 N.E.2d at
631. Within these parameters, we concluded that “[w]hile the two drug buys
occurred within twenty-four hours of each other and at the same location, they
were, nonetheless, distinct arrangements for the sale of narcotics. Indeed, a
complete recount of the first drug buy can be given without reference to the
other[.]” Id. Likewise, in Reynolds, we determined that three separate
burglaries of three different homes within a single day constituted separate
offenses. Reynolds, 657 N.E.2d at 441. The court noted that “[e]ach burglary
took place as a distinct episode in itself; each can be described without referring
to details of the others.” Id.
[12] In a more recent opinion by this court, we held that three burglaries did not
arise from a single episode of criminal conduct. Slone v. State, 11 N.E.3d 969,
972 (Ind. Ct. App. 2014). There, the defendant broke into one building in
December 2012, another in April 2013, and a third in May 2013. We noted
that although there were some common elements between the burglaries, they
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 6 of 7 were committed over the course of six months and thus “were not of a
simultaneous or contemporaneous nature.” Id.
[13] Here, Shuminoff committed the four burglaries over a nineteen-day period.
Although two victims were the same, and the modus operandi of the crimes
indicated several similarities, the drawn out time span of the crime spree and
the three different locations of the burglarized businesses illustrate that the
crimes were not of a contemporaneous nature. Moreover, each burglary can be
described as a distinct episode in itself, without referring to the details of the
other charges. Accordingly, based on these facts, we find Shuminoff’s situation
more in line with the Williams, Reynolds, and Slone precedents than Henson and
Gallien. Therefore, we affirm the trial court’s finding that the burglaries were
not “a connected series of offenses that are closely related in time, place, and
circumstance.” I.C. § 35-50-1-2(b).
CONCLUSION
[14] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it determined that the four burglaries did not constitute a single
episode of criminal conduct for purposes of imposing consecutive sentences.
[15] Affirmed.
[16] Brown, J. and Altice, J. concur
Court of Appeals of Indiana | Memorandum Decision 89A01-1505-CR-502 | December 15, 2015 Page 7 of 7