Court of Appeals of Indiana | Memorandum Decision 27A02

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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 Craig Persinger Marion, Indiana A TTORNEY S FOR A PPELLEE 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 Ca se No. 27A02

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Kirsch , Judge .Court of Appeals of Indiana | Memorandum Decision 27A02

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[1] Steven Cole (“Cole”) pleaded guilty to ba ttery 1 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 se rved concurrently but consecutive to the second invasion of privacy sentence, for an aggregate term of six years exe cuted. Cole appeals and raises the issue of whether his consecutive sentences constitute unlawful double enhancement due to th e 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.



### F acts and Proced

ural 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
contact ed Mantz and went to her home on that date. Several days later, on June 28, 2014, C ole 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 i n the day and inform her that Cole

1 See Ind. Code § 35

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- 1(a)(1)(A).
2 See Ind. Code 35

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- 15.1(12)

. 3 We note that, effective July 1, 2014, a new version of t hese criminal statute s was enacted. Because Cole committed his crimes prio r to July 1, 2014, we will apply the statute s in effect at th e time he committed his crimes

. 4 The no contact order was issued under cause number 27D02

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was going to drive his truck into a tr ee 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 bodi ly 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 e nhanced to a Class D felony due to the same prior convict ion 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 25 th and June 28 th , 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, 201 4 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 injurie s 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

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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 invasi on of privacy sentences were to be s erved 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 s ound discretion of the trial court and are only review ed 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 ma y 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 . a t 490

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[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 ‘absentCourt of Appeals of Indiana | Memorandum Decision 27A02

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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 ge neral habitual offender statute; special ized habitual offender statutes; a nd 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 , whic h elevates the level of an offense with a correspondingly enhanced sentence if the defendant previously has been convicted of invasion of pri vacy. Id

.
[8] Here, the trial court had explicit legislative direction permitting the enhancements of each of Cole’s i nvasion of privacy charges. Ind. Code § 35

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- 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 Clau se 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

m ultiple 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 theCourt of Appeals of Indiana | Memorandum Decision 27A02

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very same behavior.” Sistrunk v. State , No. 49S05

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- 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 of fense occurred after Cole’s 2012 conviction, theref or e elevating them to felonies . We conclude that t he 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 ap ply 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 aggrega te term of six ye ars executed. The trial court did not abuse its discretion in sentencing Cole.

[11] Affirmed. Najam, J., and Barnes, J., concur.