from the Tippecanoe Superior Court The Honorable Steven P.
Meyer, Judge Trial Court Cause No. 79D02-1704-F5-52
ATTORNEY FOR APPELLANT Timothy P. Broden Lafayette, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Tyler G. Banks Deputy Attorney General
Tony Lemorris Clemons appeals his sentence for Level 5 felony
domestic battery and Level 6 felony invasion of
privacy. Clemons asserts the trial court erred when
it imposed consecutive sentences for the two convictions
because those convictions "were closely related in time,
place, and circumstances."(Br. of Appellant at 5.) As we
find no abuse of discretion, we affirm.
and Procedural History
Clemons and S.C. were married. Pursuant to a no contact order
entered in 2016, Clemons was not allowed to interact with
S.C. On April 23, 2017, SC was at a bar in Lafayette,
Indiana. Clemons went into the bar and sat next to S.C.
Clemons took S.C.'s phone but S.C. would not give him the
password. Clemons left the bar with the phone. S.C. followed
him to the parking lot where she attempted to retrieve her
phone. Clemons refused to give it to her. Clemons grabbed
S.C. and threw her, headfirst, on the ground. When the police
arrived, SC was bleeding from a head wound.
The State charged Clemons with four counts of domestic
battery and two counts of invasion of privacy. Pursuant to a
plea agreement, Clemons pled guilty to one count of Level 5
felony domestic battery and one count of Level 6 felony
invasion of privacy. In return, the State dismissed the other
charges under this cause number and a pending petition to
revoke probation in an unrelated case. The trial court found
the aggravators outweighed the mitigators and imposed a
five-year sentence for domestic battery and a two-year
sentence for invasion of privacy. The trial court ordered the
sentences served consecutively.
Clemons argues the trial court erred by imposing consecutive
sentences when the two convictions happened so closely in
time as to warrant a single incident. Clemons argues this is
one single incident because he could not commit battery on
S.C. without first committing invasion of privacy. As such,
he argues the sentences should have been imposed
Sentencing decisions rest within the sound discretion of the
trial court and will be disturbed only on a showing of abuse
of discretion. Anderson v. State, 989 N.E.2d 823,
826 (Ind.Ct.App. 2013), trans. denied. An abuse of
discretion occurs when the decision is clearly against the
logic and effect of the evidence before the court or the
reasonable inferences to be drawn therefrom. Id.
If not a violation of the prohibition of double jeopardy, and
if not in violation of applicable statutory mandates,
"[a] trial court may impose consecutive sentences for
separate and distinct crimes that arise out of a single
confrontation involving the same victim." Vermillion
v. State, 978 N.E.2d 459, 466 (Ind.Ct.App. 2012). It is
undisputed that Clemons' crimes are not crimes of
violence as defined in Indiana Code section 35-50-1-2(a).
Therefore, his sentences are subject to the limits as
prescribed under Indiana Code section 35-50-1-2(d)(2).
An "episode of criminal conduct" is defined as
"offenses or a connected series of offenses that are
closely related in time, place, and circumstance." Ind.
Code § 35-50-1-2(b). If consecutive sentences are
imposed for an episode of criminal conduct, the aggregate
sentence is limited by the "most serious crime for which
the defendant is sentenced[.]" Ind. Code §
35-50-1-2(d)(2). If that crime "is a Level 5 felony, the
total consecutive terms of imprisonment may not exceed seven
(7) years." Id. The trial court here ordered a
seven-year sentence, which was within the statutory limits
for a single episode of criminal conduct. Accordingly,
Clemons cannot demonstrate error in his sentence based on
that statute. See Williams v. State, 889 N.E.2d
1274, 1282-83 (Ind.Ct.App. 2008) (aggregate sentences
equaling less than the statutory limit are not a violation of
Indiana Code section 35-50-1-2), trans. denied.
Clemons does not explicitly argue his right against double
jeopardy has been implicated. Nevertheless, to support his
assertion the trial court erred when it ordered him to serve
the sentences for his two convictions consecutively, Clemons
relies on a double jeopardy analysis regarding crimes arising
from a single incident from Kocielko v. State, 938
N.E.2d 243 (Ind.Ct.App. 2010), on rehearing Kocielko v.
State, 943 N.E.2d 1282 (Ind.Ct.App. 2011), trans.
denied. In Kocielko, we held the ...