Court of Appeals of Indiana | Memorandum Decision 18A

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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 Victoria L. Bailey Marion County Public Defender Agency Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Jacquese Andrew Chaney , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. October 5, 2018 Court of Appeals Ca se No. 18A

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- 62 Appeal from the Marion Superior Court The Honorable Jeffrey L. Marchal, Magistrate Trial Court Cause No. 49G06

- 1608

- F1

- 29908

Barteau , Senior Judge
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## Statement of the Case

[1] Jacquese Andrew Chaney appeals the seventy

- five

- year sentence the trial court imposed after determining he was guilty of one count of rape and two counts of attempted rape, all Level 1 felonies, 1 among other offenses. We affirm.


## Issue

[2] C haney raises one issue, which we restate as: whether the trial court abused its discretion in imposing consecutive senten ces for Chaney’s convictions of rape and attempted rape

.



## Facts and Procedural History

[3] C haney was charged with several offenses, including attempted rape and robbery, arising from his attack on A.P. in Indianapolis on November 11, 2015. He was charged with additional offen ses, including attempted rape, robbery and

arson , arising from his attack on J.D. in Indianapolis on November 26, 2015. Finally, he was charged with numerous offenses, including rape and robbery, arising from his attack on H.A. in Indiana polis on November 29, 2015. In total, Chaney was charged with twenty

- four offenses.

[4] Chaney waived his right to a jury trial, opting to be tried by the court. The

court entered a judgment of conviction for thirteen offenses , including one

1 Ind. Code §§ 35

- 42

- 4

- 1 (2014) (rape); 35

- 41

- 5

- 1 (2014) (attempt).Court of Appeals of Indiana | Memorandum Decision 18A

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count of rape an d two counts of attempted rape. At sentencing, the court identified aggravating and mitigating factors as follows:
In determining an appropriate senten ce, the Court has considered the evidence presented at trial, the inform ation contained within the pre

- sentence repor t, the written victim impact statement which I received, the t estimony of the witnesses here today, and the arguments of counsel. Mr. Chaney, my comments are as much to you as it is to th e victims and all the family members f rom each side who are here.
I don’t expect everybody here to agr ee with my sentence, but I think it’s important for you all to know how I got there. This is not pulling numbers out of a hat, but it is also not an exact mathematical formula. The l aw says here are the ranges, here are the factors that I can c onsider to move those needles within the ranges. So there’s a b it of art to it. I would like to think that in the time I’ve been here doing these cases I’ve got it right. But again, you may disagree.
The one significant factor which I find in aggravation and which really drives the Court’s sentence in this case is the fact that I’m not dealing with one victim. I am dealing with four, three of whom were sexually assaulted in a violent manner. That in and of itself justifies imposition of consecutive sentences in this case, and that’s what I’m going to do. Now, there are factors that are in the defendant’s favor. He does have mental health issues. He ’s got a prior diagnosis for Schizophrenia and PTSD among others. He self

- reports having hallucinations and delusions. I’ll als o find that he has a history of substance abuse. The defense wants me to find h is age, he was twenty at the time, to be a mitigating factor. I’ve got to say historically, I’ve kind of saved that for the teenagers, but for this argument, I’ll gi ve you that point, Mr. Borland. I don’t think it affects what I’m going to do ult imately.Court of Appeals of Indiana | Memorandum Decision 18A

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The criminal history can kind of cut either way. I hate to say this, but the fact that he’s only got two priors is something we don’t see often in this court. I usually get a laundry list of criminal history. One of them is a battery, and I have to be concerned about that because that’s an act of violence, even though it’s a misdemeanor. The other one, which is more concerning, is the fact that he’s got a level 3 armed robbery in this court for which he received an ex ecuted DOC sentence. So, I’ll put that one slightly in the aggravating category.
I do also note that he declined to pa rticipate in the presentence report interview. I a m not considering that one way or the other. He doesn’t have to. He doesn’t have to make a statement, and he didn’t. And I’m not going to hold that against him.
In terms of weighing aggravating an d mitig ators [sic] , I think the mitigators very slightly outweigh those aggravating factors. But again, I’m back to the multiple victim scenario, and I t hink I need to craft a sentence so that each of the three sexual assault victims knows this is my sentence fo r him. He doesn’t get a free victim here when i t comes to rape, bottom line.

Tr

. Vol. III, pp. 151

- 53

.

[5] The court imposed a sentence that included, in relevant part, twenty

- five years for the rape conviction and twenty

- five years for each conviction of att empted rape. The court ordered Chaney to serve the sentences for rape and atte mpted rape consecutively, for an aggregate sentence of seventy

- five years. This appeal followed.Court of Appeals of Indiana | Memorandum Decision 18A

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## Discussion and Decision

[6] Chaney argues his sentence is erroneous because the tri al court mistakenly believed it was required by law to impose consecutive sentences for the charges of rape an d attempted rape.

[7] The Indiana General Assembly has determined:

A court may impose any sentence that is:
(1) authorized by statute; and
(2) permiss ible under the Constitution of the State of Indiana; regardless of the presence or absence of aggravating circumstances or mitigating circumstances.
Ind. Code § 35

- 38

- 1

- 7.1(d) (2015). During sentencing, “if the court finds aggravating circumstances or mit igating circumstances, [the court shall issue] a statement of the court’s reasons for selecting the sentence that it imposes.” Ind. Code § 35

- 38

- 1

- 3 (1983).

[8] When imposing a sentence for a felony offense, the trial court must issue “a reasonably detailed r ecitation of the trial court’s reasons for imposing a particular sentence.” Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g , 875 N.E.2d 218 (2007). We review the sentence for an abuse of
discretion. Sloan v. State , 16 N.E.3d 1018 , 1026 (Ind. 2014). The trial court abuses its discretion by (1) failing to issue a sentencing statement, (2) finding aggravating or mitigating factors that are not supported by the record, (3)Court of Appeals of Indiana | Memorandum Decision 18A

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omitting factors that are clearly supported by the record and advanced for consideration, (4) or by finding factors that are improper as a matter of law. Anglemyer

, 868 N.E.2d at 490

- 91.

[9] “ It is a well established principle that the fact of multiple crimes or victims constitutes a valid aggravating circumstance that a trial court may consider in imposing consecutive or enhanced sentences.” O’Connel l v. State , 742 N.E.2d 943, 952 (Ind. 2001) (emphasis added). Whether the counts involve one or multiple victims is highly relevant to the decision to impose consecutive sentences if for no other reason than to preserve potential deterrence of subsequent offenses. Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008).

[10] Chaney claims the trial court wrongly believed it was required to impose consecutive sentences because the court stated, “I think I need to craft a sentence so that each of the three sexual a ssault victims knows this is my sentence for him. He doesn’t get a free victim here when it comes to rape, bottom line.” Tr. Vol. III, p. 153. We disagree with Chaney’s reading of the trial court’s statement . Based on our review of the trial court’s di scussion of aggravating and mitigating factors, as set forth above, the trial court did not misunderstand the law. Instead, the court determined that the existence of multiple victims “justifies imposition of consecutive sentences.” Id. at 152 . We concl ude that the trial court’s use of the word “need” reflect s a determination that consecutive sentences were necessary under the facts and circumstances of the case rather than a belief that mandatory sentences were legally required

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The trial court recogni zed that it had the discretion to impose consecutive sentences, and we conclude the court acted within its discretion.



## Conclusion

[11] For the reasons stated above, we affirm the judgment of the trial court.

[12] Affirmed.

[13] May, J., and Mathias, J., concur.