Court of Appeals of Indiana | Opinion 35A05-1410-CR-496 | April 28, 2015 Page 1 of 9

ATTORNEY FOR APPELLANT

Jeremy K. Nix

Matheny, Hahn, Denman & Nix, L.L.P.

Huntington, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Zachery L. Lewis,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 28, 2015

Court of Appeals Case No.

35A05-1410-CR-496

Appeal from the Huntington Superior 

Court

The Honorable Jeffrey R. 

Heffelfinger, Judge

Cause No. 35D01-1407-F6-196

Najam, Judge.

Statement of the Case

[1] Zachery L. Lewis appeals his sentence following his convictions for two counts 

of battery, one as a Level 6 felony, and one as a Class A misdemeanor. Lewis
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presents three issues for our review, which we consolidate and restate as the 

following two issues:

1. Whether the two batteries constitute an episode of 

criminal conduct under Indiana Code Section 35-50-1-2(c).

2. Whether the trial court abused its discretion when it 

sentenced him.

We affirm.

Facts and Procedural History

[2] On July 24 and 25, 2014, Lewis and his live-in girlfriend, Kelsey Cohen, 

engaged in a protracted and heated argument. Cohen finally went to sleep at 

approximately 6:00 a.m. on July 25. At approximately 9:00 that morning, 

Cohen awoke to find Lewis holding a hot hair straightening tool against her 

thigh, which burned her skin. And Cohen later discovered that Lewis had 

shaved off a portion of one of her eyebrows while she slept.

[3] Later on July 25, Cohen went to the home of a friend, Jacque Stephan. And at 

approximately 11:00 or 11:30 that night, Lewis went to Stephan’s house to see 

Cohen. Cohen and Stephan, who were inside the house, heard Lewis yelling 

Cohen’s name from outside. Cohen and Stephan went outside and told Lewis 

to leave, but he refused. Stephan again asked Lewis to leave, and he pushed her 

to the ground. Stephen’s body struck two parked cars as she fell, and she 

sustained injuries.
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[4] The State charged Lewis with two counts of battery, one as a Level 6 felony and 

one as a Class A misdemeanor.

1

 A jury found him guilty as charged. The trial 

court entered judgment of conviction accordingly and sentenced Lewis to two 

and one-half years for the Level 6 felony and one year for the Class A 

misdemeanor, to be served consecutively, for an aggregate term of three and 

one-half years. This appeal ensued.

Discussion and Decision

Issue One: Episode of Criminal Conduct

[5] Lewis first contends that the two batteries constitute an episode of criminal 

conduct. Indiana Code Section 35-50-1-2(c) provides in relevant part that, 

except for crimes of violence, the total of the consecutive terms of 

imprisonment to which the defendant is sentenced for multiple felony 

convictions arising out of an episode of criminal conduct shall not exceed the 

advisory sentence for a felony that is one class of felony higher than the most 

serious of the felonies for which the person has been convicted. “Episode of 

criminal conduct” means offenses or a connected series of offenses that are 

closely related in time, place, and circumstance. I.C. § 35-50-1-2(b). Lewis 

maintains that, because the advisory sentence for a felony that is one level 

 

1

 The Level 6 felony charge stemmed from the battery against Cohen, and the Class A misdemeanor charge 

stemmed from the battery against Stephan.
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higher than a Level 6 felony is three years,2the trial court erred when it imposed 

an aggregate sentence of three and one-half years. We do not agree.

[6] Initially, we note that, effective July 1, 2014, our sentencing guidelines have 

replaced “classes” of felonies with “levels” of felonies. See, e.g., Ind. Code § 35-

50-2-4. But our legislature has not revised Indiana Code Section 35-50-1-2 to 

refer to “levels” of felonies instead of “classes” of felonies. This is obviously an 

oversight and does not affect the applicability of Indiana Code Section 35-50-1-

2 to the sentences imposed for felonies committed on or after July 1, 2014.3

[7] Lewis’ contention on this issue is without merit. Indiana Code Section 35-50-1-

2(c) only applies to sentencing for “multiple felony convictions.” Here, Lewis 

was convicted of one felony and one misdemeanor. Thus, even if Lewis’ 

offenses constituted an episode of criminal conduct, which they do not,4the 

statutory sentencing limit would not apply. The trial court did not err when it 

imposed an aggregate sentence of three and one-half years.

 

2

 Indiana Code Section 35-50-2-6(b) provides in relevant part that the advisory sentence for a Level 5 felony 

is three years.

3

 We note that there is legislation pending in the General Assembly that would, in relevant part, eliminate 

the use of the term “class” in Indiana Code Section 35-50-1-2. See S.B. 559, 119th Gen. Assemb., Reg. Sess. 

(Ind. 2015).

4

 The evidence shows that the batteries occurred more than twelve hours apart at two different locations and 

involved two different victims. A complete account of one of the batteries can be given without referring to 

the other offense. Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995). Thus, Lewis’ crimes do not 

constitute an episode of criminal conduct.
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Issue Two: Abuse of Discretion in Sentencing

[8] Lewis next contends that the trial court abused its discretion when it sentenced 

him. Sentencing decisions rest within the sound discretion of the trial court and 

are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 

N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 

(Ind. 2007). 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. Id.

One way in which a trial court may abuse its discretion is failing 

to enter a sentencing statement at all. Other examples include 

entering a sentencing statement that explains reasons for 

imposing a sentence—including a finding of aggravating and 

mitigating factors if any—but the record does not support the 

reasons, or the sentencing statement omits reasons that are 

clearly supported by the record and advanced for consideration, 

or the reasons given are improper as a matter of law. Under 

those circumstances, remand for resentencing may be the 

appropriate remedy if we cannot say with confidence that the 

trial court would have imposed the same sentence had it properly 

considered reasons that enjoy support in the record.

Id. at 490-91.

[9] Lewis contends that the trial court abused its discretion when it sentenced him 

because, he maintains, the court did not make a reasonably detailed sentencing 

statement. In particular, Lewis asserts that: (1) the trial court did not 

adequately identify an aggravating circumstance to support the imposition of an 

enhanced sentence for the Level 6 felony conviction; and (2) the court did not 
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articulate a reason for imposing consecutive sentences. We address each 

contention in turn.

[10] The trial court’s written sentencing statement did not provide any explanation 

for the imposition of the enhanced sentence or consecutive sentences. But, at 

the conclusion of the sentencing hearing, the trial court stated as follows:

The Court incorporates, this [sic] is a previous [pre-sentence 

investigation report,] and the Court incorporates it into this 

sentencing hearing. You have one adjudication as a juvenile . . . 

that was a battery. You have two (2) prior felonies, ten (10) prior 

misdemeanors, [and] four (4) petitions to revoke [probation]. Of 

your adjudications, both as a juvenile and as an adult, you have 

seven (7) prior batteries, two (2) intimidations, and one (1) 

resisting law enforcement. For those reasons, on Count one (1), 

you are sentenced to [two and a half (2 1/2) years on the level 6 

felony, and] for Count two (2), you are sentenced to . . . one (1) 

year on the Class A misdemeanor. . . . The Court orders it [sic] 

run consecutive to each other.

Tr. at 186-87.

[11] In Anglemyer, 868 N.E.2d at 490, our supreme court stated that,

[i]n order to facilitate its underlying goals, see Abercrombie[ v. 

State, 275 Ind. 407, 417 N.E.2d 316, 319[ (1981)5], the

 

5

 In Abercrombie, our supreme court explained that,

when the sentencing judge is required to make a statement of the reasons for imposing a 

particular sentence, two important goals are served. First, the judge is confined to proper 

grounds for either increasing or decreasing the presumptive sentence provided for the 

offense; and, second, the appellate court is enabled to determine the reasonableness of the 

sentence imposed, under the circumstances.
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[sentencing] statement must include a reasonably detailed 

recitation of the trial court’s reasons for imposing a particular 

sentence. If the recitation includes a finding of aggravating or 

mitigating circumstances, then the statement must identify all 

significant mitigating and aggravating circumstances and explain 

why each circumstance has been determined to be mitigating or 

aggravating.

[12] Here, in its oral sentencing statement, the trial court identified no mitigators6

and a single aggravator, namely, Lewis’ extensive criminal history.7 And the 

trial court described Lewis’ criminal history with an emphasis on prior offenses 

relevant to the instant batteries. While the trial court’s sentencing statement 

lacked detail, it was sufficiently detailed to support Lewis’ enhanced sentence 

for a Level 6 felony. See, e.g., Mayes v. State, 744 N.E.2d 390, 396 (Ind. 2001) 

(noting that, when a defendant’s criminal history is used as an aggravating 

factor to support an enhanced sentence, the trial court must recite the incidents 

comprising the criminal history).

 

But a statement of reasons for imposing a particular sentence serves numerous other goals 

beyond the two primary goals. An attempt by the sentencing judge to articulate his 

reasons for a sentence in each case should in itself contribute significantly to the 

rationality and consistency of sentences. A statement by the sentencing judge explaining 

the reasons for commitment can help both the defendant and the public understand why 

a particular sentence was imposed. An acceptance of the sentence by the defendant 

without bitterness is an important ingredient in rehabilitation, and acceptance by the 

public will foster confidence in the criminal justice system.

417 N.E.2d at 319 (citation omitted).

6

 Lewis does not contend that the trial court abused its discretion when it did not identify any mitigators.

7

 We agree with the State that the trial court’s failure to use the word “aggravator” is not fatal to its 

sentencing statement. It is clear that the trial court imposed an enhanced sentence based on Lewis’ criminal 

history.
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[13] However, our supreme court has “emphasized that[,] before a trial court can 

impose a consecutive sentence, it must articulate, explain, and evaluate the 

aggravating circumstances that support the sentence.” Monroe v. State, 886 

N.E.2d 578, 580 (Ind. 2008). Here, in imposing Lewis’ sentence, the trial court 

described his criminal history and merely concluded that, “[f]or those reasons,” 

it was imposing the enhanced sentence on the Level 6 felony and ordering the 

two sentences to run consecutively. Tr. at 186.

[14] While a single aggravator may be used both to enhance a sentence and impose 

consecutive sentences, Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 

2012), the trial court’s brief sentencing statement here lacked specificity. But 

we need not remand for resentencing because the rationale for consecutive 

sentences is apparent on the face of the record. Here there were two victims, 

and it is well settled that “injury to multiple victims” supports the imposition of 

consecutive sentences. McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 

2001). Given Lewis’ extensive criminal history, including four probation 

violations, and the fact that Lewis committed batteries against two victims, we 

are confident that the trial court would have imposed the same sentence had it 

more fully articulated its reasons for imposing consecutive sentences. And we 

need not remand for resentencing if we can say with confidence that the trial 

court would have imposed the same sentence had it properly considered 

reasons that enjoy support in the record. See, e.g., Anglemyer, 868 N.E.2d at 

491. The trial court did not abuse its discretion when it sentenced Lewis.

[15] Affirmed.
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Mathias, J., and Bradford, J., concur.