Court of Appeals of Indiana | Memorandum Decision 09A02

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### 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.
A TTORNEY FOR A PPELLANT Mark K. Leeman Leeman Law Office and Cass County Public Defender Logansport , Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Zackery Daniel Fairfield , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff March 28, 2018 Court of Appeals Ca se No. 09A02

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- 1312

- FD

- 377

Baker , Judge .Court of Appeals of Indiana | Memorandum Decision 09A02

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[1] Zack ery Fairfield appeals the six

- year sentence he received after pleading guilty to Check Fraud, 1 a Class D Felony , and Theft, 2 a Class D Felony. Fairfield argues that the trial court imposed an illegal sentence when it ordered consecutive sentences for two non

- violent C las s D felonies. Finding that the sentence was not illegal, we affirm. 

## Facts
[2] Beginning in October 2013 , Fairfield wrote bad checks to Pizza Hut on fifteen different occasions. Each time, the food was delivered to the same address and

was purchased with checks from the same account.

[3] On December 12, 2013, t he State filed a sixteen

- count information against Fairfield , charging him with one count of Class D felony check fraud and fifteen counts of Class D felony theft

. On April 20, 2017, Fairfield pleaded guilty to one count of Class D felony check fraud and one count of Class D felony theft in exchange for the dismissal of the other charges and an agreement not to pursue a n habitual offender enhancement. 3

[4] Pursuant to the plea agreement , which left sentencing open to the trial court , on August 3, 2017, Fairfield was sentenced to three years incarceration on each

1 Ind. Code § 35

- 43

- 5

- 12(b)(1)(A)

. 2 I.C. § 35

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- 4

- 2(a)

. 3 The record reveal s that the lengthy delay between the charges and the plea agreement was due in part to a co ntinuance, multiple arrests and incarceration.Court of Appeals of Indiana | Memorandum Decision 09A02

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count . The trial court ordered that the sentences be served consecutively, for an aggregate sentence of six years. Fairfield was also ordered to pay restitution to Pizza Hut in the amount of $1,263.00. Fairfield now appeals.



## Disc ussion and Decision

[5] Fairfield’s sole contention on appeal is that the trial court erred by imposing consecutive sentences for two C lass D felonies , totaling six years of incarceration. He argues that the crimes constituted a single episode of criminal

con duct and require s a sentence cap of four years . We disagree.

[6] A t the time Fairfield committed his offenses, Indiana Code section 35

- 50

- 1

- 2 provided: [E]xcept for crimes of violence, the total of the consecutive terms of imprisonment

. . . to which the def endant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convict ed. Because theft and check fraud are not listed as “crimes of violence,” Fairfield’s crimes are subject to a statutory cap if they arise from a single episode of criminal conduct.

[7] Whether multiple offenses constitute a single episode of criminal conduc t is a factually sensitive inquiry to be made by the trial court. Schlichter v. State , 779 N.E.2d 1155, 1157 (Ind. 2002). A single episode of criminal conduct means “offenses or a connected series of offenses that are closely related in time, place,Court of Appeals of Indiana | Memorandum Decision 09A02

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and circumstance.” I.C. § 35

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- 1

- 2(b). In conducting analysis, the focus is on the timing of the offenses and the simultaneous and contemporaneous nature of the crimes. Reed v. State , 856 N.E.2d 1189, 1200

- 01 (Ind. 2006).

[8] While Fairfield’s crimes were si milar in nature, they occurred over a period of approximately twenty days. Fairfield’s theft conviction stems from the bad check he wrote to Pizza Hut on October 12, 2013, and the check fraud conviction is a result of the bad checks he wrote to Pizza Hut from November 1, 2013 , through November 17, 2013. Although Pizza Hut was the sole victim,

e ach episode involved a diff erent amount of money, occurred on different days, and were separated by nearly one month . Fairfield’s actions were not “simultaneous” or “contemporaneous” in nature and they constituted distinct episodes of criminal conduct. See , e.g., Gootee v. State , 942 N.E.2d 111 , 114

- 115 (Ind. Ct. App. 2011) (holding that defendant’s offenses did not constitute a single episode of criminal conduct where forgery

- fraud incidents all occurred within a period of two days , at the same location, and involved the same vict im).

[9] Because Fairfield’s criminal conduct occurred at separate times and involved separate amounts of money, the crimes did not constitute a single episode of criminal conduct. Under these circumstances , we find that the trial court did not err by impos ing consecutive sentences for two Class D felonies.Court of Appeals of Indiana | Memorandum Decision 09A02

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[10] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur

.