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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 de fense of res judicata, collateral estoppel, or the law of the case

.
A TTORNEY FOR A PPELLANT Brian A. Karle Ball Eggleston, PC Lafayette, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General
M egan M. Smith Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA

Sebastian S. Smith , Appellan t
- Defendant,

v. 

### State of Ind iana , Appellee

- Plaintiff June 19, 2020 Court of Appeals Ca se No. 19A

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- 2039 Appeal from the Tippecanoe Circuit Court The Honorable Sean M. Persin, Judge Trial Court Cause No. 79C01

- 1609

- F2

- 28

Crone , Judge .Court of A ppe als of I n diana | Memorandu m Decisi on 19A

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### Case Summary
[1] Sebastian S. Smith shot and seri ously injur ed Brendon Firth duri ng an armed robbery

. A jury found Smith g uilty on six f elony counts and 3 misde meanor counts . The trial c o urt entered judgment of conviction only for one count of le vel 2 felony robbery resulting in serious bodily injury a nd entered an enhance d sentence based upon Smith ’ s use of a fi rearm d uring the ro bbery. Smith now appeals a sserting that the trial court abused it s discretion in excluding c e rt ain ev idence , that his co n viction and sentence e nhanc ement violate double jeopa rdy principles, and that his sentence is inappropriate . The State cr oss - a ppeals urging tha t remand for amendment of the sentencing order and abstract of judgment is nece s s ary to prov ide for consecutive sente ncing with

a term of imprisonment imposed in ano ther county

. We disag ree with Smith but agree with the S tate. Acc or ding l y, we affi rm Smith ’ s convic tion and sentence, b ut remand for amendment of the sentencing order and ab stract o f judgment

. 

### F acts and Procedural History

[2] T he evidence most favorable t o S mit h ’ s con viction reveals that o n Augu st 10, 2016, Smith , Tre ’ ve lle Y oung , and some other indiv id uals were at Smith ’ s

re sidence s moking “ [w]eed and some other stuff , ” and discuss ing r obbing a dru g dealer, Rya n Wall , who lived nearby. Tr. Vol. 2 at 108

. S mith and Y oun g later went to W a ll ’ s apart ment under the pretext o f bu yi ng drugs in order to

“ feel the place out. ” Id

. W all , his girl friend , and two of W all ’ s friends , one of who was Brendon F irth, were p resent

. While at W a ll ’ s apartment, Sm ithCourt of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 3 of 16 purchased Xana x from Wa l l and spoke to h im about the possibility of selling him a te levision

. Smith tol d Wall that he would return later wi th the television

.
[3] Smith and Young went back to Sm ith ’ s residence and plann ed how the ro bbery would take place. They then ret urned to Wall ’ s ap a rtment with a television

. The television s ale was just a “ sham ” to get back into Wall ’ s apartment. Id . at 113. As Wall was checking to se e if the television work e d, Smith instructed Young to go dow n to t he car to retrieve “ the remote. ” Id . at 80 . This was

“ code ” ins tructing Y o ung to retrieve a gun fro m the car. Id . at 1 45

. After Young returned with a gun, Smith pulled out his handgun an d pointed it around the r oom at the people. Smith yelled at Wall , “ Where is the sh*t at ? ” and ord er ed Wall to gi v e him “ everyth ing [ he ] had. ” Id . at 94 , 1 71

. Firth stood up, pulled o ut a knife, and stepped toward S m ith telling him that he “ was n ’ t getting anythin g f rom an yone
. ” Id . at 171

. Wall told Firth t hat t he y s h oul d just comply with Smith ’ s de mands and “ giv [ e ] hi m everything [,] ” and Wall t oss ed a C rown Royal bag full of pills on to the coffee table toward Smith

. Id

. Smith looked at Wall, and back at Firth , a nd then shot F irth in the ch est

. After shooting Firth, S mith grabbed the bag full of p ills , threw it to Young, and ran out of the apartment . Firth suffered life

- t h reatening injuries as a resul t of the gunshot

.
[4] The Stat e initially charged Smith wi th on e count of level 2 f elon y robbery resul ting in serious bodily i nj ury . The State su bse q uen tly added charges for level 3 f elony cons p ir acy t o commit robbery, level 3 f el ony c riminal confi nement, clas s A misdeme anor theft, level 3 felony battery, two counts ofCourt of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 4 of 16 level 5 felony battery , class A m isdem e anor carryi ng a handgun without a licens e, a n d l evel 5 felony carry in g a h andgun without a l icens e
. The State also requested a sen tence enhanc ement due to Smith ’ s use of a fi rearm during the commission of his offe nse s
. In Septemb er 201 8 , t he Sta te also added one count of level 1 felony at tempted murde r.

[5] A jury trial was held in June 2019. Th e jury fo und S m ith not guilty of
att empte d murder, but guilty on all othe r counts. The trial court entered judgment of con viction sol ely o n the lev el 2 robbery co unt an d found that the State had prov ed t he elemen ts of the use - of

- a - firearm sentence en hancement be y ond a reasonable doubt

. The tria l court senten ced Smith to twen ty
- five
years for the level 2 f elony, e nhanced by f ifteen yea rs fo r the use of a firearm , with thirty

- five years executed and five years susp ended to probat i on. This appeal ens ued. We will pr ovide additio nal facts in ou r dis cussion when
necessary. 

### Discuss ion and Decision S ection 1

— The trial court did not abuse its d iscr e tion in excluding certa in evidence.

[6] S m ith first contends that the trial c ourt abused its d iscretion in excludi ng certain evid ence
. We r ev iew the trial c ourt ’ s ruling on the admission or ex clusion of evidence for an abuse of discretion. Johns on v. St ate , 38 N.E.3d 658, 660

- 6 1 (I nd. Ct. App. 2015) , trans denied

. We re verse only where the decision is cle arly against the logic an d effect of the facts and ci rcumstances

. Id

. at 661

. Even ifCourt of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 5 of 16 the trial court ’ s decision w as an abuse of di scretion , we will not reverse if the admission or exclusion constituted ha rmless error

. Id

.
[7] Alth ough S mit h attempted to serve Wall with several subpoenas t o ap pear at trial , Wall failed to ap pear a s a witne ss. During trial, Smith sought to el icit testimony from a police detective , over the State ’ s objection, that on the ni ght of the robbery, Wall to ld t he de tective that Smith and Firth ha d engaged in a struggle prior to the shooting. Smith claimed that Wall ’ s o ut
- of

- court statement supported his claim of self

- defense , an d was admissible pur suant to the excited
utterance ex cep tion to the hearsay rul e . T he tr ial court excluded the evidence as inadmissible.

[8] “Hearsay ” is a sta tement , other tha n one ma de by the declarant while testifying
at the trial or hea ring , off ered in evidence to prove the trut h of the matter asserted. Ind. Evid ence Rule 801(c)

. As a general rule, hearsay ev idence i s inadmis sible. Ind. Evidence Rule 802

. One exception to the hearsay rule is the “excited ut teran ce” exception contained in Evidence Rule 803(2). This rule provide s that “[a] state ment rel ating to a startling event or c ondi tion , made while the decla rant was under the stress of excitement that i t caused ” is not excluded by the hearsay rule, even i f the declarant is avai lable as a witness. Ind. Evidenc e Rule 803(2)

. I n order for a hearsay statement to be admi tted as

an e xcited ut terance, three elements must be present: (1) a startlin g eve nt has occurred; ( 2) a statement was made by a declarant while un der the stress of excitem ent caused by the event; a nd (3) the statement relates t o the event

. Boatner v. State , 934 N. E.2 d 184, 186

- 87 (Ind. Ct . App. 2010)

. “ This is not aCourt of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 6 of 16 mechanical test, and the admissibility of an allegedly excited utterance turns on whether the statement was inherently reliable be cau se the witness was u nder the st ress of the event and unlikel y to ma ke d eliberate fal sificati ons. ” Id

. “The heart of the inquiry is whether the dec larant was incapable of thoughtful reflec tion. ” Id

. (cit ation omitted )

. While the amount of time that has pass ed is not di spositive, “ a state ment that is made long after the start ling event is usually less likely to be an excited u ttera nce. ” Id

.
[9] Here , the re cor d does not support a claim that Wall ’ s s t atement “ was inherently reliab le ” because he was “ under the stre ss of th e ev en t ” and therefore “ unlik ely to make delibe rate falsifica t io ns. ” See i d

. S m ith v ague ly assert s that the statement was made “ shortly ” after the shooting, Appellant ’ s Br. at 12, but the record is unclear as to exactly when Wall spoke to t he detecti ve
. 1 The Stat e empha siz ed that t he recor d indicate d that Wall “ s poke to mul ti ple officers ” well before he made the stateme nt in question, and there was no evidence that Wall

“ was under the stress of the ev ent still ” when spe a king to the det ectiv e
. Tr. Vol. 3 at 108. Additio nally , the r e cord indicates that Wall , a kno wn dr ug deale r , and th e other witnesses present deliberately lied to and conce aled evidence from the off icers who arrived on the scene within minutes of the s hooting

. T hi s cu t s aga inst any assertion th at Wall was incapabl e of thoughtful re flec tion and unl ikel y to make deli berate fals ifi cations in his subsequent sta teme nt . Under

1 Smith ’ s atto rney s tated that he believed the statem ent was made “ wit hin an hour or two ” of t he shooting , but he admitte d he was unsure . Tr. Vol. 3 at 108

.Court of A ppe als of I n diana | Memorandu m Decisi on 19A

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exc luding Wall ’ s out
- of

- co urt statement as in admissible hearsa y
.
[10] I n any event , we agree w ith the Stat e tha t any er ror in the exclusion of Wall ’s
statement was harmless at most

. Errors in the exclusion of evidence are

cons idered harmless unless they affe ct the subst antial righ ts of a party. Whiteside v. Stat e , 853 N.E .2d 1021, 1025 (Ind . Ct. App. 2006)

. To determine whether an er ror in the exclu sion of evidence affected a party ’ s substa ntial rights, we as sess the probable impact of the evidence on the jur y. Id

. Smith sought to i ntroduce Wall ’ s s tatement reg arding a s truggle with Firth to support his cla im of self

- defen s e to the charge of at tempted m urder, f or which he was acquitted

. This self

- defense the ory had no bearing on his conviction fo r robbery resulting in bodi l y inju ry. 2 Accordingly, S m ith cannot demonstrate that an y

err or in the exclusion of Wall ’ s out
- of

- court statement affect ed his subst antial rights

. 

### S e ction 2

– Smith ’ s robbery conviction and sent e ncing enhancement d o not violate d ouble jeopa rd y principles.

[11] Next , Smith argues that his convict ion fo r level 2 f elon y rob bery and the use - of

a - f irearm sentence enhancement attached t o tha t c onviction violate I ndiana ’s double jeopardy principles

. We review questions of double jeopardy d e novo, giving no consideration to the tr ial court ’ s decision be low. G oldsberry v. State ,

2 S mi th ’s theory of d e fense re ga rding the robbe ry was that Y oung was the perpetra tor of , and possessed t he requisite mens rea for, the robbery , and tha t Smith w as essentially at t he wrong place at the wrong time. Tr. V ol. 3 at 160, 171

- 7 3

.Court of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 8 of 16 821 N.E.2d 447, 458 (I nd. Ct. App. 2005)

. A rtic le 1, Section 14 of the Indiana Consti tution provides: “No pers on shall be put i n jeopar dy twice for the same offense

. ” This provisio n was int ended to “prevent th e State from being able to proceed against a person twice for the same criminal tr ansgressio n.” Richa rdson v. State , 717 N.E.2d 32, 49 (Ind. 1999)

. Under Richardson , “two or more offenses are the same offense ... if, with respe ct to either the statutory el ements

o f the chal lenged crimes or t he actu al evidence used to c onvict, the essenti al elements of on e challenged offense also establish the essential elements of another challenged offense .” Id

.
[12] While Ric har dson is aime d pri marily a t multiple convi ctions , our supreme court has recognized a series of rules of statutory construction and common law that supplements the constitutional protections affor ded by th e Indiana Double Jeopardy Clause

. Miller v. State , 790 N.E.2d 437 , 439 (Ind. 2003) (ci ting Pierce v. State , 761 N.E.2d 826, 830 (Ind. 2002) )

. Th ese rules prohibit conviction and punishment “for an enhancement of a crime wher e the enhancement is imposed for the very same behav ior or harm as another crime for whi ch t he defendant has been convict ed and punished.” Ri chardson , 717 N.E.2d at 56 (Sullivan, J.,

c oncurring)

. The court ha s explained that c laims of multiple enhancement s require statutory interpretation , and the crux of t hese cases revolves around what, if any, legislat ive direction h as b e en given

. Nicoson v. State , 938 N.E.2dCourt of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 63 (Ind.2010)

. 3 I n other words, multiple enhancements are permis sible if the legislature clearly in te n ds it to be so. See i d

.
[13] Smith was convic ted of robbery resulting in serious bodily injury. H e argues that the “ ser i ous bodily injury eleme nt ” of his o ffens e “ was ca used by and as a dir ect result of use of a firea r m ” during th e crime. Appell ant ’ s Br . at 1 6

. Accordingly , he maintains that the f irearm sentence enhancement was imp osed for “ the very same behavior or harm ” that supported his con victio n for robbe ry resulting in serio us bodily injur y , and thus he c laims tha t the sentence

en hancemen t violates double jeopardy principles and must be set aside

. I d.

[14] Our supreme court ’ s de cision in Ni coson is instruc tive her e
. I n Nicoson , the defendant was convicted of criminal confi nement as a class B felony because he

w as ar med with a dea dly weapon. N i coson , 9 38 N.E.2d 660, 662

- 63

. The trial
court attached an additional fi xed five

- yea r ter m to his sentence pursuant to India na ’ s Firearm Enhanc ement Sta tute, Indiana Code Section 35

- 50

- 2

- 1 1 , b ecause the defenda nt “used” a firearm while committing his offen se
. Id . at 661

. That section provides th at upo n proof beyond a reasonable doubt “ that

3 Another pan el of t his Court has spe cificall y determi ned that firearm sentencing enhancements do not imp li cate double jeopardy. Specifically, the panel in Cooper v. St ate , 940 N.E.2d 1210 (Ind. Ct. Ap p. 2011 ) , trans. denied , noted th at several jurisdicti ons have concluded that firearm sentencing enhancemen ts similar to ours do not raise double jeopardy concer ns bec ause the e nhancement is merely a cumulative punishment rather than a separate offense. Id. at 1215 ( collecting cases ). The Co o per panel agreed with those jurisdiction s in recognizing that sentencing enhance ments are not offenses for dou ble jeopardy purposes
. Id

. at 1217

. While we ackno w le dge the general princi ple that s ente n cing enhancement s do not co nstitute separate offenses , controlling precedent of our supreme court directs that we must still consider whether the firea rm s e ntencing enhancement , as a pplied here, runs afoul of Indiana ’ s supplemental prohibiti on “ agains t do u ble enhancements ‘absent ex plicit legislativ e direction

. ’ ” Nicoson , 938 N.E.2d at 6 63

.Court of A ppe als of I n diana | Memorandu m Decisi on 19A

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. ” In d. Code § 35

- 50

- 2

- 11

. The N icoson court determ ined, among othe r things, that t h e use - of

- a - firearm sentence enhanceme nt did not run afoul of double jeopardy principles

. Id . at 661, 662

- 63, 665

.
[15] I n reaching that resu lt , the c ourt emp hasiz ed that [t] he “ extra ” five year s about whi ch Nicoso n complai ns is not part of these provisions in the confinement statutes t hat a uthori ze higher classes of felonies to be charged. Rathe r, it appears in t he part of the Code on penalties. The section at issue authorizes an additional fixe d sentence for the u nderlying offense where a firearm is used.

... . Here, the State initially need ed to prove only that Nicoson committed confinement whil e armed with a de ad ly wea pon. Ind

. Code § 35

- 42

- 3

- 3

. To a pply the additional fixed five

- year term the s tatute re quires the State to pr ove Nicoson “used” a firearm in commission of his offens e. Ind. Code § 3 5

- 50

- 2

- 11 . The record clearly reveals tha t Nicoson was not only armed with a deadly w eapon, but that he used the firea rm

— firing into the air, ordering th e victims from the ve hicle wi th it, an d firing at the victims ’ vehicle as they drove away.

Id . at 664, 665

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- 2039 | June 19, 2020 Pag e 11 of 16 [16] As in Nicos on , th e sentence e nhanc em ent ab out which Smith complains does not concern, in any way, an elevation of a statutory offense to a h igher cl ass of felony . T he sentence enhancement that applies to S m ith ’ s use of a firearm in the commission of his offense is embodie d in the penaltie s provis ion of the Indiana Code in wh ich the legis lature has spe cifically provided a har sher penalty based on the use of a firearm . T he legisl ature ’ s intent is clear that

c ertai n cri minal offenses committed with fire arms , including those felonies resultin g in dea th or serious bodily injury , are to receive additional p unishment. Ind. Code § 35

- 50

- 2

- 11(b)(1)

.
[17] Moreove r , Sm ith was charged with the c rime of robbery as a l evel 2 f elony . A n indivi d ual com mits that offense i f he or she know ingly or intentionally takes property from another person or f rom the presence of anot her person by using or threatening the use of for c e on any person , or by puttin g any person in fear , and “ it r esults in serious bodily injury to any perso n other than a defendant. ” Ind. Code § 35

- 42

- 5

- 1

. Proof of that off ense d i d not requ ire a ny showing t hat Smith used a weapon, and the jury was no t requ ired to det e rmine t hat Smith used a fir e arm in the commission of the underlying offense.

[18] In other words , Smith was convicted of a single offense , and only one sentence enhancement was impo sed a s a result of his use of the firearm in the commission o f the c rime. Thu s, we ar e not concer ne d with multiple enhancements. Cont rary to Smith ’ s suggestion, it is of no moment tha t his use of a f i rearm caused the se rious bodily injury relied upon for both the underlyin g offense and the enhancement

. If the leg islature intended tha t of fenses result ingCourt of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 12 of 16 in serious bodily injury alleged to have been committed with a firea rm were to be e xcepted from the use - of

- a - firearm sentence enhancement, it could have dr afted the statute to refl ect that intent

. Instead , the leg islature spec ific ally inc lude d all fel onies “ under I C 35

- 42 ” that result in “ serious bodily injury. ” Ind . Cod e § 35

- 50

- 2

- 11

. “ [T] he incl usi on of that requirement renders it virtually certa in that the legis lature w ou ld have foreseen that many of those injuries would be inflicted by the use of firearms. ” Cooper v. State , 940 N.E. 2d 1210 , 1217 (Ind. Ct. App. 2011) , trans. d enied

. For the foregoing reasons, we conclude that no double jeopardy violation occurred , and we r eject S mith ’ s contention that his s entence enh ancement must be set aside.



### S ection 3

– S mit h had not met his b urd en to demonstrate that his sentence is inappro pr i ate.
[19] Smith finally request s that we redu ce his se nten ce pur suant to Indiana Appellat e Rule 7(B) , which provides tha t we may revise a sente nce aut horiz ed by sta tute if, after due considera tion of the trial court ’ s decisi on, we find that th e

se nte nce “is inappropriate in light of the natur e o f the offense and the ch aract er

o f the o ffender.” The defendant bears the burden to persuade this Court t hat h is or her sent ence is i nappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2 006)

. I n diana’ s flexibl e sentencing sch eme allo ws t r ial c ourts to tailor an appropri ate sente nce to the circu m stanc es presented, and the tri al court’s judgment “should re ceive consider able defe rence.” Cardwell v. State , 895 N.E .2d 1 219, 1 222 (I nd. 2008)

. The prin cipal r ole of appellate revie w i s to att empt to “l eav en th e outliers. ” Id . at 12 25

. Wh ether we regard a sentence asCourt of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 13 of 16 inappropriate at the end of t he day turns on “o ur se n se of th e culpab i lity of the defendant, the severity of the cr ime, t h e damage d one to o thers, and myriad oth er facts th at come t o l ight i n a given case.” Id . at 122 4 . “ The q uestion unde r Ap pell at e Rule 7(B) is not wh ethe r another sentence is more app ropri ate; rath er, the q uestion i s whether the sentence i mpose d is in appr op riate.” Fon ner v . S tate , 8 76 N.E.2d 340, 344 (Ind. Ct. App. 200 7)

.
[20] Re garding the nature of the o ffen se, t he advisory sent ence is the starting point that the legislature has sele ct ed as an appropri ate sente nce for the crime commi tted. Fuller v. State , 9 N.E .3d 653, 65 7 (Ind

. 2014 )

. S m ith was co nvicted of level 2 felony rob bery resulting in se ri o us bodily inj ury , and he was found to have knowingly or in tentionally used a firearm during th e comm i ssion of his offense. T he se ntencing ra nge for a level 2 felony is b etween ten a nd thirty
y ears, wi th an advisory sentence of seventee n a nd a half year s. Ind . Code § 35

- 50

- 2

- 4.5

. If a per son knowingly or int enti onall y uses a firearm during the commission of cert ain offenses, the trial c ou rt m ay impose an additional fix ed term of imp rison ment between five an d twenty years. In d. Code § 35

- 50

- 2

- 11

. The t rial court here im posed a twenty

- five

- year sen tence for Smith ’ s robbery conviction , e nhanced by fifteen years for his use o f a firearm, resulti ng in an
aggre gate senten ce of forty year s (thirty

- five years ex ec uted and five year s suspended to probation ) , wh ich was well bel ow the max imum fifty

- year all o wable sentenc e
.
[21] W hen r evi ewing the na ture of the offense, this Court conside r s “ the details and

c ircumstanc es of the commission of the off e n se.” Washington v. Stat e , 9 40Court of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 14 of 16 N.E.2d 1220 , 1222 (Ind. Ct. App. 2011) , tra ns. denied

. S mith urges that , although any ro bbery is a serious off ense , the curren t robbery was not so egr egiou s as to justify the sentence imposed. We disa gree. There was evide nce in the r ecord that not onl y was Smith an active pa rticipant in pointin g a loaded gun at a group of people, placin g them in fear, a nd t aking property , but he also
p lanned and consp ired to commit t his crime in advance. Indeed, ther e was evidence to sugg est that S m ith was the mastermind of this drug heist gone horri bly w rong. It is disingenuous to suggest that Smith was unaware t hat committing an armed robb ery of a know n drug dealer an d his friends was not likely to result in an esc alation of violen ce , n ame ly , the ser ious bo dily injury suffered by Firth

. The details a nd circumstances of th e commission of th is offense do not per suade us that a se ntence reduction is warra nted.

[22] Turning t o Smi th ’ s character, we note that t he char acter of the offende r i s f ou nd in what we learn of his life and co ndu ct. Croy v . S tate , 953 N. E.2d 660, 664 (Ind. Ct. App. 2 011)

. Inc lu d ed in that ass es sment is a review of an offender’s criminal hist o ry
. Garcia v. State , 47 N. E.3d 1249 , 1251 (I nd. Ct. App. 201 5), trans. deni ed (2 016). Smith has an extensive crim inal history beginni ng as a juvenile offender when he committ ed grand theft in Florida

. At the young ag e of thirty, he ha d already a m as sed m u ltiple fel ony co nvictions (theft, auto theft, posse ssion of methamphetamine, pos session of marijuana with a prior conviction , burglary ) and seven misdeme anor convic t i ons
. As noted by the trial court, Smith ’ s daily drug use ( heroin , methamphetam in e , p ainki llers ) has unfortunately “ led to a l ife of crime , ” and desp ite numerous arrests ,Court of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 15 of 16 conv ic tions, and opportunities a t probat ion and rehabilita tion , there has been

“ just no compl iance anywhere. ” Tr. Vol. 4 at 25. Smith has demonstrated u tter

“ disdai n for the court , ” failing to appear before t he court when ord ered at least sixteen times, and he has just continued to do “ w hat ever the heck [he ] wanted

. ” Id . at 25

- 26. Indeed, Smith committed the curre nt offense shortly after release on his own recogniz an ce from the Benton County Jail , where he w as being held

on pending burglary and habitual offender c harge s
. Nothing we have learned about S m ith ’ s character persuades us that the sentence imposed by th e trial
court sho uld be reduced . Smith has not met hi s bur den to demonstrate that his sentence is inappro p riate in light o f the nature of his o ff ense or his character.


### Sect ion 4

– Remand is nece ssary for the trial court to correct its sentencing order . [23] The Sta te cross
- appeals and asserts that rema nd i s neces sa ry for the trial court to correct its sent encing order . Sp e cific al ly , the State points out that the order does not address the fact that Smith committe d the instant offense whi le

re leas ed on his own recog n izance during the pend e ncy o f his Benton County

c a se, c ause number 04C01

- 1512

- F4

- 22 9 , and th at pursuant to st atute, t he
sentences imposed in bot h c auses must be ordere d to run consecut ively. Ind iana Code Section 35

- 50

- 1

- 2 provides in rel ev ant part: (e) If, after b eing arrested for one (1) crime, a person commits another crime: (1) befo re the date the pe rson is discharged from probation, pa role, or a term of impri sonment imposed for the first crime; orCourt of A ppe als of I n diana | Memorandu m Decisi on 19A

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- 2039 | June 19, 2020 Pag e 16 of 16 (2) while the person is released: (A ) up on the person ’ s own reco gnizance; o r (B) on bond ; the t erms of imprisonment for th e cri mes shall be serve d consecutively, regardless of the or der in which the crimes are tried and sentences are imposed.

[24] The record in d ic ates that Smith committed the current crime while released on his o wn recognizance f rom the Benton County Jail where he had been held on burglary charges

. Accordingly, pursuant t o statute, the terms of im pri s on ment for the curre nt crime and his Benton County crime shall be served consecutively. 4 Therefor e , we rem and w it h instructions fo r the tr ial court to correct the sent encing order and ab st ract of judgme nt to re flect that the terms of imprisonment for the current c onviction and the Benton County conviction shall be served cons ec utively. T he trial court ’ s j udgm ent o f conviction and

se ntence i s affi r m ed in all other respects.

[25] Affirmed and remanded.

Bailey, J., and Altice, J., co ncur.

4 A t the tim e of sentencing , Smith had already been co nvicted of level 4 felony bur glary a nd found to be a habitual offender in the Benton County cause , and was serving th e imposed fourt een - year executed sen tence in the Department of Correctio n
.