Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016 Page 1 of 13

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

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

Hilary Bowe Ricks

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Keith Sculfield,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 15, 2016

Court of Appeals Case No.

49A02-1511-CR-1807

Appeal from the Marion Superior 

Court

The Honorable Mark Stoner, 

Judge

Trial Court Cause No.

49G06-1411-F2-52683

Robb, Judge.
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Case Summary and Issues

[1] Twenty-year-old Keith Sculfield pleaded guilty to robbery resulting in serious 

bodily injury (“Count I”) and attempted robbery resulting in serious bodily 

injury (“Count II”), both Level 2 felonies. Due to double jeopardy concerns, 

the trial court only entered judgment of conviction on Count II and sentenced 

Sculfield to twenty-five years in the Indiana Department of Correction with five

years suspended and two years of probation. Sculfield appeals his sentence, 

raising two issues for our review: (1) whether the trial court abused its discretion 

in sentencing him, and (2) whether Sculfield’s sentence is inappropriate in light 

of the nature of the offense and his character. The State cross-appeals, raising 

the sole issue of whether the trial court erred in not entering a judgment of 

conviction as to Count I. Concluding the trial court did not abuse its discretion 

and Sculfield’s sentence is not inappropriate, we affirm his sentence. However, 

because convictions on Counts I and II do not implicate the prohibition against 

double jeopardy, we reverse and remand.

Facts and Procedural History

[2] On November 20, 2014, Sculfield and another individual robbed Tire and 

Wheel Service in Indianapolis. After entering the shop, Sculfield pointed a 

revolver at Bradley Brooks, the shop’s owner, and took $600 from Brooks’ 

pocket; Sculfield also confronted Christina Clark, an employee of the store, and 

demanded her purse. When Clark reached for a gun under the counter, 

Sculfield shot her in the neck. Because the bullet lodged against her spine, 
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Clark suffered serious bodily injury and permanent disfigurement. Security 

cameras recorded the entire encounter and police officers were able to identity 

Sculfield as one of the perpetrators. 

[3] On November 24, 2014, the State charged Sculfield with Count I, robbery 

resulting in serious bodily injury, a Level 2 felony; Counts II and III, attempted 

robbery resulting in serious bodily injury, both Level 2 felonies; Count IV, 

criminal confinement, a Level 3 felony; Count V, aggravated battery, a Level 3 

felony; and Count VI, carrying a handgun without a license, a Class A 

misdemeanor. Count I of the charging information alleges,

On or about November 20, 2014, Keith Sculfield and Cortez 

Sanders did knowingly take property, that is, U.S. currency, from 

another person or the presence of another person, that is, Bradley 

Brooks, by using force, threatening the use of force, or placing 

another person in fear, and while doing so Christina Clark 

sustained serious bodily injury, that is, a gunshot wound to neck . 

. . .

Appellant’s Appendix at 21. Count II alleges,

On or about November 20, 2014, Keith Sculfield and Cortez 

Sanders did attempt to commit the crime of Robbery Resulting in 

Serious Bodily Injury, which is to knowingly take property from 

another person or the presence of another person by using force, 

threatening the use of force, or placing another person in fear, 

resulting in serious bodily injury to a person other than the 

defendant, by engaging in conduct, that is, pointing a handgun at 

Christina Clark and demanding her purse, that constituted a 

substantial step toward the commission of the crime of Robbery 

Resulting in Serious Bodily Injury, and resulted in serious bodily 

injury to Christina Clark, that is, gunshot wound to the neck . . . .
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Id.

[4] On the first day of trial, Sculfield entered into a plea agreement with the State

and pleaded guilty to Counts I and II. In exchange for Sculfield pleading guilty, 

the State agreed to dismiss the remaining charges. The agreement left the 

sentence to the discretion of the trial court. The trial court accepted the guilty 

pleas, ordered a pre-sentence investigation report, and scheduled a sentencing

hearing.

[5] During the pre-sentence investigation interview, Sculfield stated he has 

regularly consumed alcohol since he was sixteen years old, marijuana since he 

was thirteen years old, and opiates since he was eighteen years old. Sculfield 

also admitted he used marijuana and opiates on a daily basis prior to his arrest 

and was under the influence of drugs when he robbed the shop. Sculfield was 

previously ordered to attend drug treatment counseling as a condition of 

probation but was ultimately terminated from the program due to his failure to 

attend. In addition, the pre-sentence investigation report indicates a lengthy 

criminal history, including five felony convictions as an adult, and numerous 

probation violations. Specifically, it indicates Sculfield violated probation in 

failing to submit to drug tests, failing to comply with substance abuse 

counseling, failing drug tests, and incurring new arrests. The report also 

indicates Sculfield has a high risk of reoffending. 

[6] At the sentencing hearing, Sculfield argued the trial court should enter 

judgment of conviction on Count I as a Level 5 felony instead of as a Level 2 
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felony due to the prohibition against double jeopardy; both the trial court and 

the State agreed.1 In its sentencing statement, the trial court found, as 

mitigating circumstances, Sculfield’s acceptance of responsibility, hardship on 

his family, and his drug addiction, but gave each factor little weight. In terms 

of aggravating circumstances, the trial court noted Sculfield’s extensive criminal 

history, numerous violations of probation, and his failure to take advantage of 

opportunities to address his drug problem. The trial court concluded the 

aggravators outweighed the mitigators. 

[7] However, at no point did the trial court state it was entering a judgment of 

conviction as to either Count and the record does not contain an abstract of 

judgment. Despite these omissions, the trial court stated it intended to sentence

Sculfield to five years in the Department of Correction on Count I, to be served

concurrently to Sculfield’s sentence on Count II. As to Count II, the trial court

stated it intended to sentence Sculfield to twenty-five years in the Department 

of Correction with five years suspended and two years of probation. Following 

the sentencing hearing, the trial court issued a signed sentencing order, entering 

judgment of conviction on Count II and sentencing Sculfield to twenty-five 

years in the Department of Correction with five years suspended and two years 

of probation. The sentencing order further states judgment of conviction was 

 

1 The record does not indicate the State formally amended the charging information.
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not entered on Count I “due to double jeopardy rule.”2 Id. at 15. Therefore, 

the trial court only entered judgment of conviction and sentenced Sculfield on

Count II. This appeal and cross-appeal ensued.

Discussion and Decision

I. Sentencing

A. Standard of Review

[8] We review a trial court’s sentencing decision 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. An abuse of discretion occurs when the trial court’s 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.

(citation omitted). A trial court may abuse its discretion in failing to enter a 

sentencing statement, finding aggravating or mitigating circumstances 

unsupported by the record, or noting reasons that are improper considerations 

as a matter of law. Id. at 490-91. However, a trial court does not abuse its 

discretion in failing to properly weigh mitigating and aggravating 

circumstances. Id. at 491. 

 

2 The Chronological Case Summary also notes “Judgment of Conviction not entered on count 1 due to 

double jeopardy rule. Count 1 is proven by plea agreement as a Level 5 felony.” Appellant’s App. at 13.
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[9] In addition, Indiana Appellate Rule 7(B) provides, “The Court may revise a 

sentence authorized by statute if, after due consideration of the trial court’s 

decision, the Court finds 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 or her 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). 

Finally, we note the principal role of appellate review is to “leaven the outliers,” 

not achieve the perceived “correct” result in each case. Id. at 1225. 

B. Aggravating and Mitigating Circumstances

[10] Sculfield contends the trial court abused its discretion in not giving enough 

weight to certain mitigating circumstances and too much weight to certain 

aggravating circumstances. Specifically, he argues the trial court should have 

given more weight to his guilty plea, the hardship on his children, and his drug 

addiction, and additionally gave too much weight to a prior juvenile robbery 

charge. He does not argue the trial court abused its discretion in failing to 

identify certain mitigating circumstances or finding certain circumstances 

unsupported by the record. As the State correctly points out, Sculfield’s 

arguments fail because the trial court cannot abuse its discretion in failing to 

give proper weight to mitigating and aggravating circumstances. See Anglemyer,

868 N.E.2d at 491. 
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C. Inappropriate Sentence

[11] Sculfield further contends his sentence is inappropriate in light of the nature of 

the offense and his character. The trial court entered judgment of conviction on 

Count II, attempted robbery resulting in serious bodily injury, a Level 2 felony. 

As to the nature of the offense, the advisory sentence is the starting point the 

legislature selected as an appropriate sentence for the crime committed. Id. at 

494. Pursuant to Indiana Code section 35-50-2-4.5, “A person who commits a 

Level 2 felony shall be imprisoned for a fixed term of between ten (10) and 

thirty (30) years, with the advisory sentence being seventeen and one-half (17 

1⁄2) years.” The trial court sentenced Sculfield to twenty-five years in the 

Department of Correction with five years suspended and two years of 

probation. We note Sculfield entered the shop carrying a revolver and 

demanded Clark hand over her purse. When Clark reached under the counter, 

Sculfield shot her in the neck and the bullet lodged against her spine causing her 

seriously bodily injury and permanent disfigurement. As the trial court stated 

at sentencing, Sculfield is “lucky” Clark survived the shooting.

[12] As to Sculfield’s character, he was twenty years old when he committed these 

crimes, and in his short adult life, Sculfield has now been convicted of six 

felonies. Despite these numerous convictions, Sculfield has often received 

probation, which he violated multiple times. In fact, Sculfield was on probation 

at the time he committed the current offense. This complete disregard for 

authority indicates Sculfield has learned nothing from his recent encounters 

with the law and has squandered multiple opportunities to be placed on 
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probation. See Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (“Probation is a 

matter of grace left to trial court discretion, not a right to which a criminal 

defendant is entitled.”). We further note Sculfield has continuously failed to 

take advantage of drug-treatment services. Cf. Bryant v. State, 802 N.E.2d 486, 

501 (Ind. Ct. App. 2004) (holding the trial court did not err in concluding the 

defendant’s substance abuse was an aggravating factor where the record showed 

he “was aware of his drug and alcohol problem, yet he had not taken any 

positive steps to treat his addiction”), trans. denied. Finally, we note Sculfield 

was previously convicted of five felonies, including residential entry, 

automobile theft, possession of cocaine, and resisting law enforcement. It is 

apparent Sculfield’s current offense represents a violent escalation in the 

seriousness of his crimes. Given Sculfield’s extensive criminal history at such a 

young age, complete disregard for authority, and inability to take advantage of 

previously lenient sentences and drug treatment services, we conclude his 

sentence is not inappropriate in light of the nature of the offense and his 

character.

II. Double Jeopardy

A. Standard of Review

[13] The State contends the trial court erred as a matter of law in not entering 

judgment of conviction due to concerns of implicating double jeopardy despite 

the parties agreeing at sentencing judgment of conviction on Count I should be
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entered as a Level 5 felony.3 After accepting a plea of guilty, a trial court shall 

enter a judgment of conviction.4 Ind. Code § 35-38-1-1. 

[14] Article 1, Section 14 of the Indiana Constitution provides, “No person shall be 

put in jeopardy twice for the same offense.”

[T]wo or more offenses are the “same offense” in violation of 

Article I, Section 14 of the Indiana Constitution, if, with respect 

to either the statutory elements of the challenged crimes or the 

 

3 The State requests we remand to the trial court with instructions to enter judgment of conviction and a 

sentence on Count I. Sculfield did not file a response to the State’s cross-appeal issue. We believe the 

procedural posture of this cross-appeal is substantively equivalent to situations where an appellee does not 

provide an appellee brief. See In re Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). In instances where no 

answer brief is filed, the judgment may be reversed if the appellant presents a prima facie case of error. Id. 

The purpose of this rule is to relieve us from the burden of controverting arguments advanced for reversal. 

Id. Here, we are tasked with examining the State’s cross-appeal issue without the benefit of a rebuttal brief. 

Therefore, we will remand to the trial court if the State presents a prima facie case of error. See id.

4

In the charging information, Counts I and II were enhanced to Level 2 felonies due to the allegation 

Clark suffered serious bodily injury. Sculfield pleaded guilty to each count and the trial court accepted 

both pleas. However, at the sentencing hearing, the parties became concerned of implicating double 

jeopardy because both charges were enhanced due to the allegation Clark, and only Clark, suffered 

serious bodily injury. See Smith v. State, 872 N.E.2d 169, 177 (Ind. Ct. App. 2007) (stating “if the same 

bodily injury” is used to enhance two separate offenses, “entering judgment of conviction for both 

counts would be improper”), trans. denied. Therefore, the parties agreed at the sentencing hearing 

Sculfield would plead guilty to Count I as a Level 5 felony for knowingly taking property from Brooks 

by the use of force or by threatening the use of force thereby removing any double jeopardy concerns. 

In addition, the trial court stated during the sentencing hearing it was sentencing Sculfield on Count I 

to five years in the Department of Correction to be served concurrently with the sentence on Count II. 

However, the trial court never stated it was entering judgment of conviction on either count during the 

sentencing hearing. Rather, despite the parties’ agreement, the trial court—after accepting both pleas 

at the guilty plea hearing and adjourning the sentencing hearing without entering judgment of 

conviction on either count—issued a signed sentencing order entering judgment of conviction only on 

Count II due to concerns Count I, as a Level 5 felony, was barred by the prohibition against double 

jeopardy. As a result, the State did not have an opportunity to address the trial court’s concern that 

Count I implicated double jeopardy. In addition, the trial court did not enter an abstract of judgment. 

We take issue with the fact the trial court stated it was sentencing Sculfield on each count without first 

entering judgment of conviction on either count. The trial court has no power to enter a sentence 

without first entering judgment of conviction and therefore the trial court erred in this regard. In 

addition, we note the record does not contain an abstract of judgment, but merely a signed sentencing 

order explaining why the trial court was not entering judgment of conviction on Count I. On remand, 

the trial court is to enter a proper abstract of judgment.
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actual evidence used to convict, the essential elements of one 

challenged offense also establish the essential elements of another 

challenged offense.

Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in 

original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We 

review double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766 

(Ind. Ct. App. 2015). 

Under the actual evidence test, we examine the actual evidence 

presented at trial in order to determine whether each challenged 

offense was established by separate and distinct facts. To find a 

double jeopardy violation under this test, we must conclude that 

there is a reasonable possibility that the evidentiary facts used by 

the fact-finder to establish the essential elements of one offense 

may also have been used to establish the essential elements of a 

second challenged offense. The actual evidence test is applied to 

all the elements of both offenses.

Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal 

quotation marks omitted). “In other words . . . the Indiana Double Jeopardy

Clause is not violated when the evidentiary facts establishing the essential 

elements of one offense also establish only one or even several, but not all, of 

the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833 

(Ind. 2002). 

B. Robbery and Attempted Robbery

[15] Pursuant to Indiana Code section 35-42-5-1,
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A person who knowingly or intentionally takes property from 

another person or from the presence of another person:

(1) by using or threatening the use of force on any person; 

or

(2) by putting any person in fear;

commits robbery, a Level 5 felony. However, the offense is a 

Level 3 felony if it is committed while armed with a deadly 

weapon or results in bodily injury to any person other than a 

defendant, and a Level 2 felony if it results in serious bodily 

injury to any person other than a defendant.

See also Ind. Code § 35-41-5-1(a) (defining attempt). 

[16] We conclude Counts I and II were established by separate and distinct facts.

The factual basis supporting Count I was that Sculfield pointed the revolver at 

Brooks and took $600 dollars from his pocket. Count II alleged Sculfield 

attempted to take property from Clark by the use of force or by threatening the 

use of force, causing serious bodily injury to Clark. The factual basis 

supporting Count II was that Sculfield attempted to steal Clark’s purse, and in 

so doing, shot her and caused serious bodily injury. Because each count is

supported by separate and distinct facts, we conclude the trial court erred in not 

entering judgment of conviction on Count I as a Level 5 felony. 
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Conclusion

[17] The trial court did not abuse its discretion in sentencing Sculfield and 

Sculfield’s sentence is not inappropriate in light of the nature of the offense and 

his character. The trial court did err, however, in not entering judgment of 

conviction on Count I. Accordingly, we affirm in part, reverse in part, and 

remand with instructions the trial court enter an abstract of judgment reflecting 

entry of judgment of conviction on Counts I and II, with Count I as a Level 5 

felony, and then impose the sentence entered during the sentencing hearing. 

[18] Affirmed in part, reversed in part, and remanded with instructions.

Najam, J., and Crone, J., concur.