Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 1 of 6

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

Craig Persinger

Marion, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Steven Cole,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff. 

September 22, 2015

Court of Appeals Case No.

27A02-1501-CR-24

Appeal from the Grant Superior 

Court

The Honorable Dana J. 

Kenworthy, Judge

Trial Court Cause No.

27D02-1406-FD-271

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A02-1501-CR-24 |September 22, 2015 Page 2 of 6

[1] Steven Cole (“Cole”) pleaded guilty to battery1 as a Class A misdemeanor and 

two counts of invasion of privacy,

2

each as a Class D felony.

3

 The battery and 

first invasion of privacy sentences were to be served concurrently but 

consecutive to the second invasion of privacy sentence, for an aggregate term of 

six years executed. Cole appeals and raises the issue of whether his consecutive 

sentences constitute unlawful double enhancement due to the trial court’s use of 

the same prior unrelated conviction of invasion of privacy. Specifically, he has 

raised for our review the issue of whether his consecutive sentences for invasion 

of privacy constitute unlawful double enhancement. 

Facts and Procedural History

[2] On June 25, 2014, Cole was subject to an order prohibiting him from having 

any contact with Mischa Mantz (“Mantz”).

4

 Despite the order, Cole knowingly 

contacted Mantz and went to her home on that date. Several days later, on 

June 28, 2014, Cole sent his minor son, C.C., and uncle, Oakley Oakerson, 

(“Oakerson”) to Mantz’s home to tell her that Cole was in the hospital, and she 

needed to go with C.C. and Oakerson to see Cole. When Mantz refused, Cole 

directed C.C. to return to her home later in the day and inform her that Cole

 

1

See Ind. Code § 35-42-2-1(a)(1)(A). 

2

See Ind. Code 35-46-1-15.1(12). 

3 We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Cole 

committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his 

crimes. 

4 The no contact order was issued under cause number 27D02-1403-FD-12. 
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was going to drive his truck into a tree if she did not go to see him. Also, on the 

same date, Cole was involved in a physical altercation with Oakerson.5

[3] On June 30, 2014, Cole was charged with battery resulting in bodily injury as a 

Class A misdemeanor and one count of invasion of privacy as a Class D felony 

for the offenses that took place on June 28, 2014. The invasion of privacy 

charge was enhanced to a felony due to Cole’s prior invasion of privacy 

conviction.6 On July 2, 2014, the State amended the information to charge 

Cole with a second count of invasion of privacy for the offense that occurred on 

June 25, 2014. The second invasion of privacy charge was enhanced to a Class 

D felony due to the same prior conviction as the first invasion of privacy 

charge. 

[4] Cole waived his right to a trial by jury and pleaded guilty to all three charges on 

November 28, 2014. At the sentencing hearing on December 22, 2014, the trial 

court stated that “between June 25th and June 28th, Mr. Cole had ample 

opportunity to confine his behavior to the restrictions of the law, but he chose 

not to do so.” Tr. at 58-59. Consequently, the trial court found that the 

invasion of privacy offenses that occurred on June 25, 2014 and June 28, 2014 

were “not a single course of criminal conduct.” Id. The trial court then 

 

5 Cole was arrested and pleaded guilty to battery resulting in bodily injury for injuries he inflicted upon his 

uncle Oakerson under this cause number. Appellant’s App. at 44-47. Cole raises no challenge to his battery 

conviction or sentence. 

6 Cole was convicted of invasion of privacy on February 14, 2012 in the Huntington County Superior Court 1 

under cause number 35D01-1108-FD-162. 
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proceeded to impose a fully executed sentence of one year for the battery 

conviction and three years for each of the invasion of privacy convictions. The 

battery and first invasion of privacy sentences were to be served concurrent with 

each other but consecutive to the second invasion of privacy sentence, for an 

aggregate term of six years executed. Cole now appeals. 

Discussion and Decision

[5] Sentencing decisions fall within the sound discretion of the trial court and are 

only reviewed on appeal 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 (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. at 490. A trial court may abuse 

its discretion by (1) failing to enter a sentencing statement or (2) entering 

findings of aggravating and mitigating factors that are unsupported by the 

record, omitting facts that were advanced for consideration and clearly 

supported by the record, or including reasons that are improper as a matter of 

law. Id. at 490-91. 

[6] Indiana courts have wrestled with the issue of double enhancements and under 

which circumstances trial courts may impose more severe sentences. See, e.g.,

Sweatt v. State, 887 N.E.2d 81, 93 (Ind. 2008); Stokes v. State, 947 N.E.2d 1033, 

1037 (Ind. Ct. App. 2011). The general rule regarding multiple enhancement 

sentences is that the trial court cannot impose a “double enhancement ‘absent 
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explicit legislative direction.’” Nicoson v. State, 928 N.E.2d 660, 663 (Ind. 2010) 

(citation omitted). Consequently, “the crux of these cases revolves around 

what, if any, legislative direction we are given.” Id. 

[7] “There are three types of statutes authorizing enhanced sentences for recidivist 

offenders: the general habitual offender statute; specialized habitual offender 

statutes; and progressive-penalty statutes.” Dye v. State, 972 N.E.2d 853, 857 

(Ind. 2012), aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). The invasion of privacy 

statute is a progressive-penalty statute, which elevates the level of an offense 

with a correspondingly enhanced sentence if the defendant previously has been 

convicted of invasion of privacy. Id.

[8] Here, the trial court had explicit legislative direction permitting the 

enhancements of each of Cole’s invasion of privacy charges. Ind. Code § 35-46-

1-15.1(12) (“[T]he offense is a Class D felony if the person has a prior unrelated 

conviction for an offense under this section.”). Moreover, it did not violate the 

Indiana Constitution’s Double Jeopardy Clause when the trial court used the 

same prior invasion of privacy conviction to enhance the two invasion of 

privacy convictions and ordered that they be served consecutively. “The 

Double Jeopardy Clause does not protect a defendant from being convicted of 

multiple counts of the same offense against the same victim.” Minton v. State, 

802 N.E.2d 929, 937-38 (Ind. Ct. App. 2004). 

[9] Additionally, serving consecutive terms for two separate offenses “is not within 

the category of rules precluding the enhancement of each offense based on the 
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very same behavior.” Sistrunk v. State, No. 49S05-1410-CR-654, 2015 WL 

4597571, at *3 (Ind. July 30, 2015). Cole received two convictions under the 

same statute for two separate and distinct acts. Each invasion of privacy 

offense occurred after Cole’s 2012 conviction, therefore elevating them to 

felonies. We conclude that the trial court acted properly when it enhanced each 

invasion of privacy offense with the prior conviction. 

[10] “Furthermore, with a few exceptions, it is within the trial court's discretion 

whether to order sentences be served concurrently or consecutively.” Myers v. 

State, 27 N.E.3d 1069, 1082 (Ind. 2015). Cole has made no arguments that any 

of the exceptions apply to him or that the trial court has otherwise abused its 

discretion in its sentencing decision. We, therefore, conclude that Cole

committed two crimes for which he can be punished separately through 

consecutive sentences for an aggregate term of six years executed. The trial 

court did not abuse its discretion in sentencing Cole. 

[11] Affirmed. 

Najam, J., and Barnes, J., concur.