Terrance L. Williams v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 14, 2017
• Docket: 79A02-1705-CR-1001
• 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 Dec 14 2017, 9:55 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 Brian A. Karle Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Terrance L. Williams, December 14, 2017 Appellant-Defendant, Court of Appeals Case No. 79A02-1705-CR-1001 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1604-F5-48

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 1 of 10 Case Summary [1] Terrance Williams appeals his convictions and four-year sentence for Level 5

felony battery and Class A misdemeanor invasion of privacy. We affirm.

Issues [2] The issues before us are:

I. whether the trial court improperly entered judgment of conviction for a third count, Class A misdemeanor domestic battery; and

II. whether Williams’s sentence is inappropriate.

Facts [3] In 2016, Williams was in a romantic relationship with E.B. They lived together

in Lafayette and had been dating for about three years. On March 30, 2016,

E.B. had a doctor’s appointment for a pregnancy she and Williams had learned

of about a week earlier.1 E.B.’s friend, Sierra James, took E.B. to the

appointment while Williams stayed at the apartment. While E.B. was gone,

Williams discovered a condom in her dresser, which angered him because he

and E.B. did not use condoms.

[4] When E.B. and James returned to the apartment, Williams confronted E.B.

about the condom. The argument became physical, and Williams began

1 The baby apparently was born at the end of October 2016, and Williams does not deny that he is the father.

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 2 of 10 shoving E.B. He also hit her with the bedroom door while she was standing in

the doorway and pushed her so that she fell backwards over a laundry basket,

causing a small cut on her back. E.B. called the police and told an officer who

arrived that Williams had been pushing her around and injured her lower back.

After the officer observed the injury and talked to Williams, he placed Williams

under arrest.

[5] The State charged Williams with Count I, Level 5 felony battery resulting in

bodily injury to a pregnant woman and Count II, Class A misdemeanor

domestic battery. In conjunction with the filing of the charges, the trial court

issued a no-contact order prohibiting Williams from having any direct or

indirect contact with E.B. or James. However, while in jail awaiting trial,

Williams twice called E.B., and those conversations were recorded.

[6] On November 11, 2016, Williams called E.B. and repeatedly blamed her for his

being in jail and facing possible prison time, saying among other things “I’m

f***ed now” and “I hope you and Sierra are happy now.” Ex. 13. E.B., who

was crying during most of the call, said, “Well first of all you shouldn’t even be

putting your hands on a pregnant woman period! Stop blaming me for your

f***ing actions.” Id. Williams continued berating E.B. for calling the police,

allowing them to take pictures, and “pressing charges.” Id. He said that,

according to his bunkmate, if she and James signed and delivered to the trial

court and prosecutor an “affidavit of innocence” stating that he had never

touched E.B., he could have his case dismissed. Id. He asked her to do this

“ASAP” and threatened to end their relationship unless she did so. Id. On

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 3 of 10 December 27, 2016, Williams again called E.B. He began by asking her where

she was and who she was with. He then told E.B. that he had read in a

discovery response that she wanted him to go to jail and said, “You pretty

much just f***ed me.” Id. He talked about rejecting a proposed plea agreement

and said, “I’m f***ed unless you and Sierra go to trial and say that I didn’t do

s***.” Id. E.B. seemed upset at the prospect of Williams going to prison for

several years but said it was unlikely James would change her testimony. E.B.

and Williams’s baby was crying during this phone call, but Williams did not ask

about or mention the baby.

[7] Because of Williams’s contacting E.B. in violation of the no-contact order, the

State thereafter filed a Count III, Class A misdemeanor invasion of privacy. A

jury trial was held on March 7-8, 2017. James testified as to Williams’s battery

of E.B. E.B., however, denied that Williams had battered her and recanted her

original statements to police, and said that she had accidentally tripped and

fallen over the laundry basket. The jury found Williams guilty of all three

counts. The trial court then stated, “The Court accepts the verdicts and enters

judgment of conviction as to the three (3) counts. The issue of merger will be

dealt with at the time of sentencing . . . .” Tr. p. 130. Subsequently, the trial

court entered a written jury trial order, stating in part, “The Court enters

JUDGMENT OF CONVICTION on Counts I, II and III.” App. Vol. II p. 99.

[8] The trial court held a sentencing hearing on April 7, 2017. During the hearing,

the trial court stated that Count II “merges” into Count I and that it would not

impose a sentence on that count. Tr. p. 148. In a written sentencing order, the

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 4 of 10 trial court stated, “The Court finds that Count II merges into Count I, therefore

the Court enters Judgment of Conviction on Counts I and III.” App. Vol. II p.

102. The trial court imposed a sentence of three years for Level 5 felony battery

and one year for Class A misdemeanor invasion of privacy, to be served

consecutively for a total of four years. The trial court further ordered that only

the three-year battery portion of the sentence would be served in the

Department of Correction. Of that three years, the trial court ordered one year

to be fully executed, one year to be served in community corrections, and one

year to be suspended, and also that the invasion of privacy one-year term be

suspended. Williams now appeals.

Analysis I. Disposition of Domestic Battery Charge

[9] Williams contends that convictions for both Level 5 felony battery and Class A

misdemeanor domestic battery would violate double jeopardy principles. The

State does not dispute that point, but argues there is no double jeopardy

violation because the trial court did not enter judgment of conviction for the

Class A misdemeanor charge. It is true, as Williams points out, that the

“merger” of one conviction with another after a judgment of conviction has

been entered, or the imposition of concurrent sentences for two offenses, does

not solve a double jeopardy problem. Hines v. State, 30 N.E.3d 1216, 1221 (Ind.

2015). However, “[w]here the court merges the lesser-included offense without

imposing judgment, there is no need to remand on appeal to ‘vacate.’” Green v.

State, 856 N.E.2d 703, 704 (Ind. 2006).

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 5 of 10 [10] Here, the trial court did originally state, after the jury returned its verdict, that it

was entering judgments of conviction for both Count I, Level 5 felony battery,

and Count II, Class A misdemeanor domestic battery. At sentencing, however,

the trial court imposed no sentence for Count II. Furthermore, in its written

sentencing order the trial court clearly stated that it was not entering a judgment

of conviction for that count. To the extent the trial court may originally have

stated its intention to enter judgment of conviction on that count, its subsequent

statements effectively vacated that judgment or negated that intention. There

are no penal consequences attaching to the finding of guilty on Count II, and

there is no need for us to remand for the trial court to take any further action

with respect to that count.

II. Sentence

[11] Williams also claims that his sentence is inappropriate under Indiana Appellate

Rule 7(B) in light of the nature of the offenses and his character. Although Rule

7(B) does not require us to be “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.

[12] The principal role of 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 Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 6 of 10 ‘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 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).

[13] For Williams’s Level 5 felony conviction, he received an advisory term of three

years, in the middle of the statutory one-to-six years range. See Ind. Code § 35-

50-2-6(b). He received the maximum term for a Class A misdemeanor. See I.C.

§ 35-50-3-2. However, although the trial court ordered the sentences served

consecutively, resulting in a total four-year term, the trial court was generous

with respect to how that sentence would be served. Williams only has to spend

one year incarcerated, one year in community corrections, and then two years

suspended to probation. We will keep this in mind when evaluating the

appropriateness of Williams’s sentence.

[14] Williams contends that the nature of the offenses was not egregious. He notes

that the bodily injury E.B. sustained was not substantial and that she was very

early in her pregnancy. We can agree with Williams’s characterization of the

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 7 of 10 injury but not with his minimizing of the battery based on the early stage of

E.B.’s pregnancy. There should be no serious doubt that battery of a pregnant

woman could result in injury to her fetus as well, regardless of the stage of

pregnancy. And, it is clear that Williams was aware of the pregnancy. As for

Williams’s invasion of E.B.’s privacy, we find it to be highly egregious and

inextricably intertwined with his battery conviction. Williams’s conduct is a

precise reason no-contact orders are entered in cases such as this. He played on

the emotions of a woman who had just given birth, daring to repeatedly blame

her for his predicament and insisting that she recant her statements to police.

Eventually, Williams was successful in emotionally browbeating E.B. into

changing her story and testifying that she had lied in her earlier statements to

police and when she said in the first jail phone call that Williams should not

have put his hands on a pregnant woman.

[15] As for Williams’s character, he was nineteen at the time of the offense and

twenty at sentencing. His juvenile history began in 2013 at the age of sixteen,

when he acquired two delinquency adjudications for what would be Class D

felony theft. Thereafter, multiple modifications of Williams’s probation were

filed for things such as testing positive for marijuana, failing to appear for drug

screens, and failing to abide by house arrest rules. On four occasions, the

modification motions were granted, and in 2014, Williams’s juvenile probation

was terminated as unsuccessful. After committing these offenses in this case

and while out on bond, Williams was charged with Class A misdemeanor

possession of a synthetic drug; he was convicted of that offense before his trial

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 8 of 10 in this case. Williams attempts to downplay the significance of this criminal

history, noting in part that it is for non-violent offenses. That is true, but the

sheer number of offenses within a short period of time, along with his repeated

violations of juvenile probation, reflect very poorly on his character.

[16] Williams contends that he displayed good character by taking classes in jail to

received his GED and that he received extensive support from his family at

sentencing. He also claims that he has a “new perspective” on life after the

birth of his child. Appellant’s Br. p. 11. This alleged “new perspective” was

not on display in Williams’s calls to E.B. after the child’s birth. Rather,

Williams was entirely self-interested, did not express any remorse, and was

more interested in his own welfare than that of either E.B. or his child. In fact,

although Williams at one point expressed sadness that he would not be present

for his child’s first Thanksgiving and Christmas, he never once asked about how

the baby was doing, even when she was crying during the second phone call. In

sum, whatever good character is demonstrated by Williams’s pursuit of a GED

and his extended family support is counterbalanced by his criminal history and

the character displayed in his calls to E.B.

[17] For Williams’s Level 5 felony battery of his girlfriend while she was pregnant

with his child and his subsequent invasion of E.B.’s privacy, he received a

sentence of one year fully executed, one year in community corrections, and

two years suspended. That does not strike us as at all inappropriate in light of

the nature of the offenses and Williams’s character.

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 9 of 10 Conclusion [18] Because the trial court effectively vacated any conviction for Class A

misdemeanor domestic battery and it did not impose a sentence for that count,

we need not remand for the trial court to take any further action. Furthermore,

Williams’s sentence is not inappropriate. We affirm.

[19] Affirmed.

May, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1001 | December 14, 2017 Page 10 of 10