Michael D. Terry v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 25 2018, 10:38 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael D. Terry, June 25, 2018
Appellant-Defendant, Court of Appeals Case No.
15A01-1710-CR-2361
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
15C01-1610-F5-75
Pyle, Judge.
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Statement of the Case
[1] Michael D. Terry (“Terry”) appeals the five-year sentence imposed after he pled
guilty to Level 6 Felony battery,1 Level 6 felony operating while intoxicated
with a prior conviction,2 and Class A misdemeanor possession of a schedule IV
controlled substance.3 He argues that the trial court’s imposition of consecutive
sentences violates INDIANA CODE § 35-50-1-2(c) and that his sentence is
inappropriate in light of the nature of the offenses and his character. Because
we conclude that the trial court’s imposition of consecutive sentences does not
violate INDIANA CODE § 35-50-1-2(c) and that Terry’s sentence is not
inappropriate, we affirm Terry’s five-year sentence.
Issues
1. Whether the trial court’s imposition of consecutive
sentences violates INDIANA CODE § 35-50-1-2(c).
2. Whether Terry’s sentence is inappropriate in light of the
nature of the offenses and his character.
Facts
[2] At approximately 10 p.m. on October 18, 2016, seventeen-year-old E.S. was
returning home from work on State Road 1 in Dearborn County. Terry was
driving the car directly in front of E.S. As Terry approached Sawdon Ridge
1
IND. CODE § 35-42-2-1.
2
IND. CODE § 9-30-5-3.
3
I.C. § 35-48-4-7.
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Road (“Sawdon Ridge”), he turned on his right turn signal. Terry applied his
brakes but missed the turn on Sawdon Ridge. As E.S. turned right on Sawdon
Ridge, he noticed Terry back up on State Road 1 and turn behind him on
Sawdon Ridge. Terry suddenly passed E.S. and stopped his car, blocking both
lanes of Sawdon Ridge. When E.S. honked his horn, Terry backed up and got
behind E.S.’s car again. As E.S. proceeded on Sawdon Ridge, Terry began
flashing his lights and tailgating E.S. Terry again passed E.S., stopped, and
blocked both lanes of the road. This time, Terry got out of his car and
approached E.S., who locked his car door but was unable to get his window up.
When Terry reached the car, he began punching E.S. through the open
window. Terry punched E.S. approximately ten times in the face and back of
his head. E.S. was covering his head with hands and begging Terry to stop
when “everything just went black,” and E.S. lost consciousness. (Tr. 29).
When E.S. regained consciousness, Terry was gone. E.S. contacted the police
and drove home.
[3] An hour later, police officers received a report of suspicious activity in the area
of State Road 1. A deputy who responded to the area noticed Terry’s empty
vehicle parked on the side of the road. While searching for Terry, the deputy
received information that a man had been found inside a nearby house. The
deputy drove to that house and encountered an intoxicated Terry. Terry’s
blood contained alprazolam, or Xanax, at a concentration of 81.2 nanograms
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per milliliter, which is two to eight times the drug’s therapeutic range,4 and
Terry did not have a prescription for Xanax. A search of Terry’s car revealed
marijuana, a pain pill, and alprazolam.
[4] The State charged Terry with five felonies and one misdemeanor. In May
2017, he entered into a plea agreement and pled guilty to Level 6 felony battery,
Level 6 felony operating a vehicle while intoxicated with a prior conviction,
and Class A misdemeanor possession of a schedule IV controlled substance,
alprazolam. The State dismissed the other charges and sentencing was left to
the trial court’s discretion.
[5] Testimony at the sentencing hearing revealed that as a result of the beating, E.S.
suffered a concussion, pain to his nose and face, and headaches, which lasted
for approximately two months. Because of the headaches, high school senior
E.S. was not able to attend school, timely complete his college applications,
work, or drive. In addition, Terry’s pre-sentence investigation report revealed
that Terry has a fifteen-year criminal history that includes convictions for
disorderly conduct, battery, shoplifting, operating a vehicle under the influence,
public intoxication, residential entry, and auto theft. In addition to these
convictions, Terry has open cases involving driving while suspended or
revoked, no proof of insurance, operating without a certificate of inspection or
failure to produce a certificate, registration violation, reckless driving, no
4
The therapeutic range for alprazolam is 10 to 40 nanograms per milliliter of blood.
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operator’s license, failure to produce an insurance card, no vehicle insurance,
and fraud and related activity in connection with access devices. The testimony
also revealed that before pleading guilty, Terry had called his girlfriend from jail
on at least two occasions and had asked her to testify that he had not hit E.H.
and had not been driving that night. The testimony further revealed that Terry
had made another telephone call from jail wherein he stated that he had to go
to court and say “I’m sorry and all this other crap.” (Tr. 48).
[6] The trial court sentenced Terry to two years for each Level 6 felony and one
year for the Class A misdemeanor. The trial court further ordered the sentences
to run consecutively to each other for a total sentence of five years. Terry now
appeals his sentence.
Decision
[7] Terry argues that: (1) the trial court’s imposition of consecutive sentences
violates INDIANA CODE § 35-50-1-2(c); and (2) his sentence is inappropriate in
light of the nature of the offenses and his character. We address each of his
contentions in turn.
1. Consecutive Sentences and INDIANA CODE § 35-50-1-2(c)
[8] Terry first argues that the trial court abused its discretion in ordering him to
serve consecutive sentences. The decision to impose consecutive sentences is
within the trial court’s discretion. Williams v. State, 891 N.E.2d 621, 630 (Ind.
Ct. App. 2008). Terry specifically argues that the trial court abused its
discretion when it sentenced him to consecutive terms totaling five years
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because such a sentence is in contravention of INDIANA CODE § 35-50-1-2(c),
which provides:
[T]he court shall determine whether terms of imprisonment shall
be served concurrently or consecutively. . . . However, . . . .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 [four years] [i]f the
most serious crime for which the defendant is sentenced is a
Level 6 felony.
[9] Terry contends that the crimes for which he was convicted and sentenced arose
out of an “episode of criminal conduct.” Because the most serious crimes for
which Terry was convicted were two Level 6 felonies, he contends that the
maximum allowable sentence under this statute is four years.
[10] An “episode of criminal conduct” is a “connected series of offenses that are
closely related in time, place, and circumstance.” IND. CODE § 35-50-1-2(b).
“In determining whether multiple offenses constitute an episode of criminal
conduct, the focus is on the timing of the offenses and the simultaneous and
contemporaneous nature, if any, of the crimes.” Williams, 891 N.E.2d at 631.
Additional guidance can be obtained by considering whether the alleged
conduct was so closely related in time, place, and circumstance that a complete
account of one charge cannot be related without referring to the details of the
other charge. Id.[11] Here, our review of the record reveals that the battery and driving while
intoxicated offenses were neither simultaneous nor contemporaneous with the
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possession offense, which occurred at a different time and place. In addition, a
complete account of the battery and driving while intoxicated offenses could be
related without referring to the details of the possession offense. No evidence
exists as to when Terry came into possession of the alprazolam. Accordingly,
the crimes for which Terry was convicted and sentenced did not arise out of an
episode of criminal conduct, and the trial court did not abuse its discretion in
sentencing him to consecutive sentences. See Akers v. State, 963 N.E.2d 615(Ind. Ct. App. 2012) (explaining that where it was unclear from the evidence
when the defendant came into possession of the paraphernalia, his conviction
for possession of paraphernalia was not related in circumstances to convictions
for battery and resisting law enforcement), trans. denied; State v. Deshazier, 877
N.E.2d 200 (Ind. Ct. App. 2007) (explaining that where no evidence existed as
to when the defendant came into possession of a handgun or marijuana,
possession of these items was not closely related to time, place and
circumstance to acts of resisting arrest), trans. denied.5
5
Terry’s reliance on Cole v. State, 850 N.E.2d 417 (Ind. Ct. App. 2006) and Johnican v. State, 804 N.E.2d 211(Ind. Ct. App. 2004) is misplaced. In those cases, the evidence revealed that both Cole and Johnican
possessed contraband when they committed other offenses. Specifically, Cole possessed chemical reagents or
precursors with intent to manufacture when he committed the offense of resisting law enforcement, and
Johnican possessed cocaine when he committed the offenses of pointing a loaded firearm and resisting law
enforcement. In Johnican, 804 N.E.2d at 218, which was cited in Cole, this Court held that where “a
defendant possesses contraband on his person as he simultaneously commits other criminal offenses, the
offenses should be deemed part of a single episode of criminal conduct.” Here, however, there is no evidence
that Terry possessed the alprazolam on his person when he committed the offenses of battery and driving
while intoxicated with a prior conviction. Rather, the alprazolam was discovered in Terry’s car at another
location an hour after he battered E.S. and drove while intoxicated.
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2. Inappropriate Sentence
[12] Terry also argues that his five-year sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) provides
that we may revise a sentence authorized by statute if, after due consideration
of the trial court’s decision, we find that the sentence is inappropriate in light of
the nature of the offense and the character of the offender. The defendant bears
the burden of persuading this Court that his sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as
inappropriate 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[13] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the Legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
Here, Terry pled guilty to two Level 6 felonies and one Class A misdemeanor.
The sentencing range for a Level 6 felony is between six months and two and
one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7. The
trial court sentenced Terry to two years for each of the Level 6 felonies, which
is less than the maximum sentence and more than the advisory sentence. The
maximum sentence for a Class A misdemeanor is one year. I.C. § 35-50-3-2.
The trial court sentenced Terry to one year for the Class A misdemeanor, which
is the maximum sentence.
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[14] Because Terry “concede[s] that the nature of the offense is a very serious
offense,” we turn to his character. (Terry’s Br. at 18). Our review of the
evidence reveals that before Terry had entered into the plea agreement, he had
twice asked his girlfriend to commit perjury by testifying that he had not hit
E.H. and had not been driving that night. Terry had also made a telephone call
from jail wherein he stated that he had to feign remorse when he went to court
by apologizing “and all this other crap.” (Tr. 48). In addition, Terry has a
fifteen-year criminal history that includes convictions for disorderly conduct,
battery, shoplifting, operating a vehicle under the influence, public intoxication,
residential entry, and auto theft. Terry also has open cases involving driving
while suspended or revoked, no proof of insurance, operating without a
certificate of inspection or failure to produce a certificate, registration violation,
reckless driving, no operator’s license, failure to produce an insurance card, no
vehicle insurance, and fraud and related activity in connection with access
devices. His former contacts with the law have not caused him to reform
himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.
denied. Terry has failed to persuade this Court that his five-year sentence is
inappropriate.
[15] Affirmed.
Vaidik, C.J., and Barnes, Sr. J., concur.
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