Matthew Christopher Yost v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 05 2020, 10:56 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
Talisha R. Griffin Steven J. Hosler
Marion County Public Defender Agency Samantha M. Sumcad
Appellate Division Deputy Attorneys General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Christopher Yost, June 5, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2834
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W. Hawkins,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G05-1909-F5-35951
Bailey, Judge.
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Case Summary
[1] Matthew Christopher Yost (“Yost”) appeals his five convictions of criminal
recklessness, as Level 5 felonies,1 and his sentence. We dismiss, without
prejudice, his appeal of his convictions, and we reverse his sentence and
remand with instructions.
Issues
[2] Yost raises two issues which we restate as follows:
I. Whether Yost may challenge his convictions on direct
appeal after pleading guilty without a plea agreement.
II. Whether the trial court abused its discretion when it
imposed consecutive terms of imprisonment.
Facts and Procedural History
[3] On September 12, 2019, the State charged Yost with five counts of criminal
recklessness, as Level 5 felonies. At his October 9 guilty plea hearing, Yost pled
guilty to all five counts. At that hearing, Yost admitted as follows.
[4] On September 7, 2019, Yost reported to police that there was a silver Dodge
Charger parked in front of his house and that the occupants of the Charger were
firing guns and attempting to enter his house. When Indianapolis Metropolitan
1
Ind. Code § 35-42-2-2(a), (b)(2).
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Police Department (“IMPD”) Officer Joshua Brown (“Officer Brown”) and
Detective Theodore Brink “(Det. Brink”) arrived at the scene, there was a silver
Dodge Charger there but no individuals firing any weapons or trying to enter
the house. The officers were in marked cars and in full police uniforms. The
officers saw Yost look out through the blinds of a window in his house several
times, but Yost relayed through dispatch that he did not see officers outside of
his house. Dispatch then hung up so that the officers on the scene could
attempt to communicate with Yost.
[5] After hanging up, Yost opened fire on the IMPD officers, firing bullets through
the French doors on the east side of the house towards the front yard and street
where Det. Brink and Officer Brown were located. The officers took cover and
requested back up. At least one of the bullets fired towards the officers hit the
house behind where they had taken cover. Yost also fired bullets into the house
of his neighbor, Mary Glaser (“Glaser”), and into an alley between Yost and
Glaser’s houses. Yost reported that at the time of the incident he was suffering
from withdrawal of Benzodiazepine, his mental health medication.
[6] Yost having admitted to a factual basis for his guilty plea, the trial court entered
convictions on all five criminal recklessness counts.
[7] At Yost’s November 6 sentencing hearing, the State offered testimony from
IMPD officers as to the timing in between the rounds of gunshots during the
September 7 incident. The first volley, comprised of two shots, was fired by
Yost through the French double doors on the side of Yost’s house and towards
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Officer Brown and Det. Brink. After approximately two minutes of silence,
Yost fired a second volley of gunshot rounds, a number of which ricocheted off
the sidewalk in between the silver Dodge and the black CRV behind which the
officers had taken cover. During that volley, Det. Brink also heard gunshot
rounds hitting buildings. Yost also fired gunshot rounds at Glaser’s house.
Glaser was at a window looking across the side yard at Yost’s French double
doors when Yost fired ten rounds at her house, three of which entered the
house.
[8] A third volley of gunshot rounds began approximately eight to ten minutes after
the second volley. The third volley included four rounds which Det. Brink
believed were fired from the back of Yost’s house towards other officers who
had taken up position there. After the third volley ended, Det. Brink saw Yost
open a window at the front of the house, yell something, and then close the
window after Det. Brink called for Yost to show him his hands. Approximately
ten minutes after the third volley, Yost fired another single gunshot toward the
alley behind his and Glaser’s houses. Then a special weapons and tactics
(“SWAT”) team arrived and ordered Yost to exit his house. Yost complied and
was arrested.
[9] From this incident, Yost was charged with five separate offenses. Counts I and
III were based on the second volley of gunshot rounds fired at Glaser’s house
and into the sidewalk and street in front of Yost’s house, respectively. Count II
was based on a round of gunshots hitting Lexington Avenue after passing Det.
Brink during one of the first three volleys. Count IV stemmed from the first
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volley of gunshot rounds fired at the sidewalk and street between Det. Brink
and Officer Brown. And, Count V was based on the single gunshot fired into
the alley between Yost’s and Glaser’s house approximately ten minutes after
the third volley.
[10] At the sentencing hearing, the State also presented evidence of Yost’s extensive
criminal history. The trial court sentenced Yost to an aggregate fifteen-year
term of imprisonment. Specifically, the court sentenced Yost to six years each
on Counts I and III with both counts running concurrently; three years on
Count II, which was to run concurrently with all other counts; six years on
Count IV to be served consecutively to Counts I and III; and three years on
Count V to be served consecutively to Count IV. Yost now appeals his
convictions and his sentence.
Discussion and Decision
Appeal of Convictions
[11] Yost directly appeals his convictions as violations of the constitutional
prohibition against double jeopardy, despite the fact that he pled guilty to all
five convictions. However, it is well-settled that a conviction based on a guilty
plea may not be challenged by direct appeal, Tumulty v. State, 666 N.E.2d 394,
395 (Ind. 1996); rather, it must be challenged through a petition for post-
conviction relief, Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). As we
recently explained in Hoskins v. State, there are
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[t]wo exceptions to the prohibition on challenging a guilty plea
on direct appeal…. First, a person who pleads guilty is entitled to
contest on direct appeal the merits of a trial court’s sentencing
decision where the trial court exercised sentencing discretion.
Collins v. State, 817 N.E.2d 230 (Ind. 2004). Further, a person
who pleads guilty is entitled to contest on direct appeal the trial
court’s discretion in denying withdrawal of the guilty plea prior to
sentencing. Brightman v. State, 758 N.E.2d [41, 44 (Ind. 2001)].
143 N.E.3d 358, 360 (Ind. Ct. App. 2020) (emphasis added) (quoting Creekmore
v. State, 853 N.E.2d 523, 532-33 (Ind. Ct. App. 2006), clarified on denial of reh’g,
858 N.E.2d 230). See also Hayes v. State, 906 N.E.2d 819, 821 n.1 (Ind. 2009)
(noting that, under Tumulty v. State, Hayes could not have directly appealed his
conviction because he pled guilty, and holding the Court of Appeals acted
contrary to Tumulty when it reversed Hayes’s conviction sua sponte); Mapp v.
State, 770 N.E.2d 332, 334 (Ind. 2002) (reaching same conclusion within the
context of a direct appeal based on double jeopardy grounds). Neither
exception discussed in Hoskins applies here; therefore, Yost may not challenge
his convictions through a direct appeal.
[12] Yost asserts that the inability to bring a direct appeal of a conviction to which a
defendant pled guilty applies only when there is a plea agreement, not when
there is an “open” guilty plea, such as his, where the trial court is left with
sentencing discretion. E.g., Collins, 817 N.E.2d at 231. However, the cases
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Yost cites are either inapplicable2 or contrary to Indiana Supreme Court
precedent.3
[13] Because Yost’s challenge to his convictions cannot be brought on direct appeal,
we dismiss his appeal of his convictions without prejudice as to his ability to
present his claim in a petition for post-conviction relief. See Hoskins, 143
N.E.3d at 361.
Consecutive Sentences
[14] Yost also challenges his sentence, and that is a challenge that he may—indeed,
must—raise in a direct appeal, if at all. Kling v. State, 837 N.E.2d 502, 504 (Ind.
2005) (citing Collins, 817 N.E.2d at 230). Specifically, Yost contends that the
trial court erred when it imposed consecutive terms of imprisonment that
exceeded the maximum term allowed under Indiana Code Section 35-50-1-
2(d)(2). A trial court has discretion to sentence a defendant to consecutive or
concurrent terms of imprisonment. I.C. § 35-50-1-2(c); see also Cardwell v. State,
2
Graham v. State, 903 N.E.2d 538, 540 (Ind. Ct. App. 2009), involved a challenge to a sentence, not a
conviction. And McElroy v. State, 864 N.E.2d 392, 396 (Ind. Ct. App.), trans. denied, involved a challenge to a
conviction within the context of a PCR, not a direct appeal.
3
Yost cites Thompson v. State, 82 N.E3d 376, 379 (Ind. Ct. App. 2017), trans. denied; Kunberger v. State, 46
N.E.3d 966, 971 (Ind. Ct. App. 2015); and Warton v. State, 42 N.E.3d 539, 540-41 (Ind. Ct. App. 2015). To
the extent those cases hold that a defendant may directly appeal his conviction when he enters an “open”
guilty plea, they are inconsistent with Supreme Court caselaw such as Hayes and Tumulty, both of which
involved “open” guilty pleas. See Hayes, 906 N.E.2d at 820; Tumulty, 666 N.E.2d at 395. Moreover, they are
distinguishable from the instant case in one very important respect; they all emphasized that they involved
open pleas from which the defendants received no benefit. See, e.g., Thompson, 82 N.E3d at 379; Warton, 42
N.E.3d at 540-41. Yost clearly did receive a benefit from his open guilty plea. Tr. at 74-55; 80-81 (both the
prosecutor and trial court noting that, if Yost had not entered his guilty plea when he did, the State would
have filed the additional charge of attempted murder for which the sentence of imprisonment would have
been much longer).
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895 N.E.2d 1219, 1222 (Ind. 2008) (noting that sentencing decisions lie within
the sound discretion of the trial court). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation
omitted), trans. denied.
[15] Unless a defendant’s offenses are crimes of violence as defined by statute,4
Indiana Code Section 35-50-1-2 limits the maximum consecutive terms of
imprisonment that a trial court may impose for a single “episode of criminal
conduct.” I.C. § 35-50-1-2(c), (d). The total of the consecutive terms of
imprisonment to which a defendant may be sentenced for felony convictions
arising out of an episode of criminal conduct is seven years when the most
serious crime is a Level 5 felony. I.C. § 35-50-1-2(d)(2); see also Daugherty v.
State, 52 N.E.3d 885, 895 (Ind. Ct. App. 2016) (holding the “aggregate
sentence” for offenses that were a single episode of criminal conduct could not
exceed maximum term of incarceration under the statute), trans. denied; Wood v.
State, 988 N.E.2d 374, 379 (Ind. Ct. App. 2013) (holding “cumulative
sentences” for five Class D felony convictions that were a single episode of
criminal conduct could not exceed statutory maximum term of incarceration).
Here, all of Yost’s convictions are Level 5 felony convictions for criminal
4
Criminal recklessness is not listed as a crime of violence. I.C. § 35-50-1-2(a).
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recklessness. Therefore, the only question is whether Yost’s crimes were part of
a “single episode of criminal conduct” for which his consecutive sentence must
be limited to seven years.
[16] An “episode of criminal conduct” is 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). See also Purdy v. State, 727 N.E.2d 1091, 1092 (Ind. Ct. App. 2000)
(quotation and citation omitted) (stating a single episode of criminal conduct is
“an occurrence or connected series of occurrences and developments which
may be viewed as distinctive and apart although part of a larger or more
comprehensive series”), trans. denied. For criminal actions to be considered a
single episode of criminal conduct, it is not necessary that the victim of each
action is the same. Harris v. State, 861 N.E.2d 1182, 1188 (Ind. 2007). Nor is it
required that the alleged conduct was so closely related in time, place and
circumstances “that a complete account of one charge cannot be related without
referring to details of the other charge,” although that is a factor the court may
consider. Id.[17] Both the Supreme Court and this court have held that criminal actions that
were not “precisely simultaneous or contemporaneous” but took place only
seconds or minutes apart were a single episode of criminal conduct. See Reed v.
State, 856 N.E.2d 1189, 1200 (Ind. 2006) (holding rounds of gunshots that were
fired a few seconds apart at two different officers in two different cars were a
single episode); see also Harris, 861 N.E.2d at 1188 (holding sexual acts against
two different victims that took place five minutes apart in the same location
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were a single episode of criminal conduct); Dimmit v. State, 25 N.E.3d 203, 219
(Ind. Ct. App. 2015) (holding two batteries occurring during a bar fight within a
few minutes of each other and against two different victims were a single
episode), trans. denied; Henson v. State, 881 N.E.2d 36, 39 (Ind. Ct. App. 2008)
(holding two burglaries of different garages in the same morning were a single
episode of criminal conduct), trans. denied.5
[18] Here, Yost fired multiple rounds of gunshots within minutes of each other. The
rounds were fired at different people but from the same location and apparently
for the same reason—i.e., Yost contended he was experiencing withdrawal
symptoms because he had stopped taking his mental health medication. The
multiple rounds of gunfire took place within a total period of twenty minutes,
which is a relatively short period of time. See Purdy, 727 N.E.2d at 1092(holding defendant’s assault of girlfriend and subsequent acts of resisting arrest
and battery of the police were a single episode of criminal conduct as they took
place during “a relatively short period of time and all were related to his assault
on [his girlfriend]”). The four rounds of gunfire were a “connected series of
offenses that [were] closely related in time, place, and circumstance,” i.e., a
single episode of criminal conduct.6 I.C. § 35-50-1-2(b). Therefore, the trial
5
We disagree with the State’s assertion that this case is closer to the facts of Williams v. State, 891 N.E.2d
621, 631 (Ind. Ct. App. 2008), where the criminal acts took place a day apart.
6
We note that, although Yost’s acts were a single “episode of criminal conduct” for purposes of the
consecutive sentencing statute, there was nevertheless a factual basis for the five counts of criminal
recklessness to which Yost knowingly pled guilty in order to obtain the benefit of a sentence lower than that
for attempted murder. And, while we do not address the merits of his convictions of those five counts, we do
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court erred in imposing an aggregate sentence in excess of seven years. I.C. §
35-50-1-2(d)(2); Daugherty, 52 N.E.3d at 895.
Conclusion
[19] Because Yost’s challenge to his convictions cannot be brought on direct appeal
given his guilty plea, we dismiss his appeal of his convictions without prejudice
as to his ability to present his claim in a petition for post-conviction relief.
However, we reverse Yost’s sentence and remand with instructions for the trial
court to limit the aggregate term of imprisonment to not more than seven years
per Indiana Code Section 35-50-1-2(c), (d)(2).
[20] Dismissed in part, reversed and remanded in part.
Crone, J., and Altice, J., concur.
note that his sentence under the consecutive sentencing statute would be limited to seven years whether he
was convicted of two Level 5 felony counts or five such counts. I.C. § 35-50-1-2(c), (d)(2).
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