MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 22 2015, 9:35 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 Craig Persinger Gregory F. Zoeller Marion, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven Cole, September 22, 2015 Appellant-Defendant, Court of Appeals Case No. 27A02-1501-CR-24 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1406-FD-271
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 1 of 6 [1] Steven Cole (“Cole”) pleaded guilty to battery1 as a Class A misdemeanor and
two counts of invasion of privacy,2 each as a Class D felony.3 The battery and
first invasion of privacy sentences were to be served concurrently but
consecutive to the second invasion of privacy sentence, for an aggregate term of
six years executed. Cole appeals and raises the issue of whether his consecutive
sentences constitute unlawful double enhancement due to the trial court’s use of
the same prior unrelated conviction of invasion of privacy. Specifically, he has
raised for our review the issue of whether his consecutive sentences for invasion
of privacy constitute unlawful double enhancement.
Facts and Procedural History [2] On June 25, 2014, Cole was subject to an order prohibiting him from having
any contact with Mischa Mantz (“Mantz”).4 Despite the order, Cole knowingly
contacted Mantz and went to her home on that date. Several days later, on
June 28, 2014, Cole sent his minor son, C.C., and uncle, Oakley Oakerson,
(“Oakerson”) to Mantz’s home to tell her that Cole was in the hospital, and she
needed to go with C.C. and Oakerson to see Cole. When Mantz refused, Cole
directed C.C. to return to her home later in the day and inform her that Cole
1 See Ind. Code § 35-42-2-1(a)(1)(A). 2 See Ind. Code 35-46-1-15.1(12). 3 We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Cole committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his crimes. 4 The no contact order was issued under cause number 27D02-1403-FD-12.
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 2 of 6 was going to drive his truck into a tree if she did not go to see him. Also, on the
same date, Cole was involved in a physical altercation with Oakerson. 5
[3] On June 30, 2014, Cole was charged with battery resulting in bodily injury as a
Class A misdemeanor and one count of invasion of privacy as a Class D felony
for the offenses that took place on June 28, 2014. The invasion of privacy
charge was enhanced to a felony due to Cole’s prior invasion of privacy
conviction.6 On July 2, 2014, the State amended the information to charge
Cole with a second count of invasion of privacy for the offense that occurred on
June 25, 2014. The second invasion of privacy charge was enhanced to a Class
D felony due to the same prior conviction as the first invasion of privacy
charge.
[4] Cole waived his right to a trial by jury and pleaded guilty to all three charges on
November 28, 2014. At the sentencing hearing on December 22, 2014, the trial
court stated that “between June 25th and June 28th, Mr. Cole had ample
opportunity to confine his behavior to the restrictions of the law, but he chose
not to do so.” Tr. at 58-59. Consequently, the trial court found that the
invasion of privacy offenses that occurred on June 25, 2014 and June 28, 2014
were “not a single course of criminal conduct.” Id. The trial court then
5 Cole was arrested and pleaded guilty to battery resulting in bodily injury for injuries he inflicted upon his uncle Oakerson under this cause number. Appellant’s App. at 44-47. Cole raises no challenge to his battery conviction or sentence. 6 Cole was convicted of invasion of privacy on February 14, 2012 in the Huntington County Superior Court 1 under cause number 35D01-1108-FD-162.
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 3 of 6 proceeded to impose a fully executed sentence of one year for the battery
conviction and three years for each of the invasion of privacy convictions. The
battery and first invasion of privacy sentences were to be served concurrent with
each other but consecutive to the second invasion of privacy sentence, for an
aggregate term of six years executed. Cole now appeals.
Discussion and Decision [5] Sentencing decisions fall within the sound discretion of the trial court and are
only reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E. 2d 218 (Ind. 2007). “An
abuse of discretion occurs if the decision is clearly against the logic and effect of
the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom.” Id. at 490. A trial court may abuse
its discretion by (1) failing to enter a sentencing statement or (2) entering
findings of aggravating and mitigating factors that are unsupported by the
record, omitting facts that were advanced for consideration and clearly
supported by the record, or including reasons that are improper as a matter of
law. Id. at 490-91.
[6] Indiana courts have wrestled with the issue of double enhancements and under
which circumstances trial courts may impose more severe sentences. See, e.g.,
Sweatt v. State, 887 N.E.2d 81, 93 (Ind. 2008); Stokes v. State, 947 N.E.2d 1033,
1037 (Ind. Ct. App. 2011). The general rule regarding multiple enhancement
sentences is that the trial court cannot impose a “double enhancement ‘absent
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 4 of 6 explicit legislative direction.’” Nicoson v. State, 928 N.E.2d 660, 663 (Ind. 2010)
(citation omitted). Consequently, “the crux of these cases revolves around
what, if any, legislative direction we are given.” Id.
[7] “There are three types of statutes authorizing enhanced sentences for recidivist
offenders: the general habitual offender statute; specialized habitual offender
statutes; and progressive-penalty statutes.” Dye v. State, 972 N.E.2d 853, 857
(Ind. 2012), aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). The invasion of privacy
statute is a progressive-penalty statute, which elevates the level of an offense
with a correspondingly enhanced sentence if the defendant previously has been
convicted of invasion of privacy. Id.
[8] Here, the trial court had explicit legislative direction permitting the
enhancements of each of Cole’s invasion of privacy charges. Ind.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 22 2015, 9:35 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 Craig Persinger Gregory F. Zoeller Marion, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven Cole, September 22, 2015 Appellant-Defendant, Court of Appeals Case No. 27A02-1501-CR-24 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1406-FD-271
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 1 of 6 [1] Steven Cole (“Cole”) pleaded guilty to battery1 as a Class A misdemeanor and
two counts of invasion of privacy,2 each as a Class D felony.3 The battery and
first invasion of privacy sentences were to be served concurrently but
consecutive to the second invasion of privacy sentence, for an aggregate term of
six years executed. Cole appeals and raises the issue of whether his consecutive
sentences constitute unlawful double enhancement due to the trial court’s use of
the same prior unrelated conviction of invasion of privacy. Specifically, he has
raised for our review the issue of whether his consecutive sentences for invasion
of privacy constitute unlawful double enhancement.
Facts and Procedural History [2] On June 25, 2014, Cole was subject to an order prohibiting him from having
any contact with Mischa Mantz (“Mantz”).4 Despite the order, Cole knowingly
contacted Mantz and went to her home on that date. Several days later, on
June 28, 2014, Cole sent his minor son, C.C., and uncle, Oakley Oakerson,
(“Oakerson”) to Mantz’s home to tell her that Cole was in the hospital, and she
needed to go with C.C. and Oakerson to see Cole. When Mantz refused, Cole
directed C.C. to return to her home later in the day and inform her that Cole
1 See Ind. Code § 35-42-2-1(a)(1)(A). 2 See Ind. Code 35-46-1-15.1(12). 3 We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Cole committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his crimes. 4 The no contact order was issued under cause number 27D02-1403-FD-12.
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 2 of 6 was going to drive his truck into a tree if she did not go to see him. Also, on the
same date, Cole was involved in a physical altercation with Oakerson. 5
[3] On June 30, 2014, Cole was charged with battery resulting in bodily injury as a
Class A misdemeanor and one count of invasion of privacy as a Class D felony
for the offenses that took place on June 28, 2014. The invasion of privacy
charge was enhanced to a felony due to Cole’s prior invasion of privacy
conviction.6 On July 2, 2014, the State amended the information to charge
Cole with a second count of invasion of privacy for the offense that occurred on
June 25, 2014. The second invasion of privacy charge was enhanced to a Class
D felony due to the same prior conviction as the first invasion of privacy
charge.
[4] Cole waived his right to a trial by jury and pleaded guilty to all three charges on
November 28, 2014. At the sentencing hearing on December 22, 2014, the trial
court stated that “between June 25th and June 28th, Mr. Cole had ample
opportunity to confine his behavior to the restrictions of the law, but he chose
not to do so.” Tr. at 58-59. Consequently, the trial court found that the
invasion of privacy offenses that occurred on June 25, 2014 and June 28, 2014
were “not a single course of criminal conduct.” Id. The trial court then
5 Cole was arrested and pleaded guilty to battery resulting in bodily injury for injuries he inflicted upon his uncle Oakerson under this cause number. Appellant’s App. at 44-47. Cole raises no challenge to his battery conviction or sentence. 6 Cole was convicted of invasion of privacy on February 14, 2012 in the Huntington County Superior Court 1 under cause number 35D01-1108-FD-162.
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 3 of 6 proceeded to impose a fully executed sentence of one year for the battery
conviction and three years for each of the invasion of privacy convictions. The
battery and first invasion of privacy sentences were to be served concurrent with
each other but consecutive to the second invasion of privacy sentence, for an
aggregate term of six years executed. Cole now appeals.
Discussion and Decision [5] Sentencing decisions fall within the sound discretion of the trial court and are
only reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E. 2d 218 (Ind. 2007). “An
abuse of discretion occurs if the decision is clearly against the logic and effect of
the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom.” Id. at 490. A trial court may abuse
its discretion by (1) failing to enter a sentencing statement or (2) entering
findings of aggravating and mitigating factors that are unsupported by the
record, omitting facts that were advanced for consideration and clearly
supported by the record, or including reasons that are improper as a matter of
law. Id. at 490-91.
[6] Indiana courts have wrestled with the issue of double enhancements and under
which circumstances trial courts may impose more severe sentences. See, e.g.,
Sweatt v. State, 887 N.E.2d 81, 93 (Ind. 2008); Stokes v. State, 947 N.E.2d 1033,
1037 (Ind. Ct. App. 2011). The general rule regarding multiple enhancement
sentences is that the trial court cannot impose a “double enhancement ‘absent
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 4 of 6 explicit legislative direction.’” Nicoson v. State, 928 N.E.2d 660, 663 (Ind. 2010)
(citation omitted). Consequently, “the crux of these cases revolves around
what, if any, legislative direction we are given.” Id.
[7] “There are three types of statutes authorizing enhanced sentences for recidivist
offenders: the general habitual offender statute; specialized habitual offender
statutes; and progressive-penalty statutes.” Dye v. State, 972 N.E.2d 853, 857
(Ind. 2012), aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). The invasion of privacy
statute is a progressive-penalty statute, which elevates the level of an offense
with a correspondingly enhanced sentence if the defendant previously has been
convicted of invasion of privacy. Id.
[8] Here, the trial court had explicit legislative direction permitting the
enhancements of each of Cole’s invasion of privacy charges. Ind. Code § 35-46-
1-15.1(12) (“[T]he offense is a Class D felony if the person has a prior unrelated
conviction for an offense under this section.”). Moreover, it did not violate the
Indiana Constitution’s Double Jeopardy Clause when the trial court used the
same prior invasion of privacy conviction to enhance the two invasion of
privacy convictions and ordered that they be served consecutively. “The
Double Jeopardy Clause does not protect a defendant from being convicted of
multiple counts of the same offense against the same victim.” Minton v. State,
802 N.E.2d 929, 937-38 (Ind. Ct. App. 2004).
[9] Additionally, serving consecutive terms for two separate offenses “is not within
the category of rules precluding the enhancement of each offense based on the
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 5 of 6 very same behavior.” Sistrunk v. State, No. 49S05-1410-CR-654, 2015 WL
4597571, at *3 (Ind. July 30, 2015). Cole received two convictions under the
same statute for two separate and distinct acts. Each invasion of privacy
offense occurred after Cole’s 2012 conviction, therefore elevating them to
felonies. We conclude that the trial court acted properly when it enhanced each
invasion of privacy offense with the prior conviction.
[10] “Furthermore, with a few exceptions, it is within the trial court's discretion
whether to order sentences be served concurrently or consecutively.” Myers v.
State, 27 N.E.3d 1069, 1082 (Ind. 2015). Cole has made no arguments that any
of the exceptions apply to him or that the trial court has otherwise abused its
discretion in its sentencing decision. We, therefore, conclude that Cole
committed two crimes for which he can be punished separately through
consecutive sentences for an aggregate term of six years executed. The trial
court did not abuse its discretion in sentencing Cole.
[11] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 6 of 6