Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020 Page 1 of 11

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

Talisha R. Griffin

Marion County Public Defender Agency 

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Steven J. Hosler

Samantha M. Sumcad

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Matthew Christopher Yost,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 5, 2020

Court of Appeals Case No.

19A-CR-2834

Appeal from the Marion Superior 

Court

The Honorable Grant W. Hawkins, 

Judge

Trial Court Cause No.

49G05-1909-F5-35951

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020 Page 2 of 11

Case Summary

[1] Matthew Christopher Yost (“Yost”) appeals his five convictions of criminal 

recklessness, as Level 5 felonies,1 and his sentence. We dismiss, without 

prejudice, his appeal of his convictions, and we reverse his sentence and 

remand with instructions.

Issues

[2] Yost raises two issues which we restate as follows:

I. Whether Yost may challenge his convictions on direct 

appeal after pleading guilty without a plea agreement.

II. Whether the trial court abused its discretion when it 

imposed consecutive terms of imprisonment.

Facts and Procedural History

[3] On September 12, 2019, the State charged Yost with five counts of criminal 

recklessness, as Level 5 felonies. At his October 9 guilty plea hearing, Yost pled 

guilty to all five counts. At that hearing, Yost admitted as follows.

[4] On September 7, 2019, Yost reported to police that there was a silver Dodge 

Charger parked in front of his house and that the occupants of the Charger were 

firing guns and attempting to enter his house. When Indianapolis Metropolitan 

1

 Ind. Code § 35-42-2-2(a), (b)(2).
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Police Department (“IMPD”) Officer Joshua Brown (“Officer Brown”) and 

Detective Theodore Brink “(Det. Brink”) arrived at the scene, there was a silver 

Dodge Charger there but no individuals firing any weapons or trying to enter 

the house. The officers were in marked cars and in full police uniforms. The 

officers saw Yost look out through the blinds of a window in his house several 

times, but Yost relayed through dispatch that he did not see officers outside of 

his house. Dispatch then hung up so that the officers on the scene could 

attempt to communicate with Yost.

[5] After hanging up, Yost opened fire on the IMPD officers, firing bullets through 

the French doors on the east side of the house towards the front yard and street 

where Det. Brink and Officer Brown were located. The officers took cover and 

requested back up. At least one of the bullets fired towards the officers hit the 

house behind where they had taken cover. Yost also fired bullets into the house 

of his neighbor, Mary Glaser (“Glaser”), and into an alley between Yost and 

Glaser’s houses. Yost reported that at the time of the incident he was suffering 

from withdrawal of Benzodiazepine, his mental health medication.

[6] Yost having admitted to a factual basis for his guilty plea, the trial court entered 

convictions on all five criminal recklessness counts. 

[7] At Yost’s November 6 sentencing hearing, the State offered testimony from 

IMPD officers as to the timing in between the rounds of gunshots during the 

September 7 incident. The first volley, comprised of two shots, was fired by 

Yost through the French double doors on the side of Yost’s house and towards 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020 Page 4 of 11

Officer Brown and Det. Brink. After approximately two minutes of silence, 

Yost fired a second volley of gunshot rounds, a number of which ricocheted off 

the sidewalk in between the silver Dodge and the black CRV behind which the 

officers had taken cover. During that volley, Det. Brink also heard gunshot 

rounds hitting buildings. Yost also fired gunshot rounds at Glaser’s house. 

Glaser was at a window looking across the side yard at Yost’s French double 

doors when Yost fired ten rounds at her house, three of which entered the

house.

[8] A third volley of gunshot rounds began approximately eight to ten minutes after 

the second volley. The third volley included four rounds which Det. Brink 

believed were fired from the back of Yost’s house towards other officers who 

had taken up position there. After the third volley ended, Det. Brink saw Yost 

open a window at the front of the house, yell something, and then close the 

window after Det. Brink called for Yost to show him his hands. Approximately 

ten minutes after the third volley, Yost fired another single gunshot toward the 

alley behind his and Glaser’s houses. Then a special weapons and tactics 

(“SWAT”) team arrived and ordered Yost to exit his house. Yost complied and 

was arrested.

[9] From this incident, Yost was charged with five separate offenses. Counts I and 

III were based on the second volley of gunshot rounds fired at Glaser’s house 

and into the sidewalk and street in front of Yost’s house, respectively. Count II 

was based on a round of gunshots hitting Lexington Avenue after passing Det.

Brink during one of the first three volleys. Count IV stemmed from the first 
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volley of gunshot rounds fired at the sidewalk and street between Det. Brink 

and Officer Brown. And, Count V was based on the single gunshot fired into 

the alley between Yost’s and Glaser’s house approximately ten minutes after 

the third volley.

[10] At the sentencing hearing, the State also presented evidence of Yost’s extensive 

criminal history. The trial court sentenced Yost to an aggregate fifteen-year 

term of imprisonment. Specifically, the court sentenced Yost to six years each 

on Counts I and III with both counts running concurrently; three years on 

Count II, which was to run concurrently with all other counts; six years on

Count IV to be served consecutively to Counts I and III; and three years on

Count V to be served consecutively to Count IV. Yost now appeals his 

convictions and his sentence.

Discussion and Decision

Appeal of Convictions

[11] Yost directly appeals his convictions as violations of the constitutional 

prohibition against double jeopardy, despite the fact that he pled guilty to all 

five convictions. However, it is well-settled that a conviction based on a guilty 

plea may not be challenged by direct appeal, Tumulty v. State, 666 N.E.2d 394, 

395 (Ind. 1996); rather, it must be challenged through a petition for postconviction relief, Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). As we 

recently explained in Hoskins v. State, there are 
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[t]wo exceptions to the prohibition on challenging a guilty plea 

on direct appeal.... First, a person who pleads guilty is entitled to 

contest on direct appeal the merits of a trial court’s sentencing

decision where the trial court exercised sentencing discretion.

Collins v. State, 817 N.E.2d 230 (Ind. 2004). Further, a person 

who pleads guilty is entitled to contest on direct appeal the trial 

court’s discretion in denying withdrawal of the guilty plea prior to 

sentencing. Brightman v. State, 758 N.E.2d [41, 44 (Ind. 2001)].

143 N.E.3d 358, 360 (Ind. Ct. App. 2020) (emphasis added) (quoting Creekmore 

v. State, 853 N.E.2d 523, 532-33 (Ind. Ct. App. 2006), clarified on denial of reh’g, 

858 N.E.2d 230). See also Hayes v. State, 906 N.E.2d 819, 821 n.1 (Ind. 2009)

(noting that, under Tumulty v. State, Hayes could not have directly appealed his 

conviction because he pled guilty, and holding the Court of Appeals acted 

contrary to Tumulty when it reversed Hayes’s conviction sua sponte); Mapp v. 

State, 770 N.E.2d 332, 334 (Ind. 2002) (reaching same conclusion within the 

context of a direct appeal based on double jeopardy grounds). Neither 

exception discussed in Hoskins applies here; therefore, Yost may not challenge 

his convictions through a direct appeal.

[12] Yost asserts that the inability to bring a direct appeal of a conviction to which a 

defendant pled guilty applies only when there is a plea agreement, not when 

there is an “open” guilty plea, such as his, where the trial court is left with 

sentencing discretion. E.g., Collins, 817 N.E.2d at 231. However, the cases 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020 Page 7 of 11

Yost cites are either inapplicable2 or contrary to Indiana Supreme Court 

precedent.

3

 

[13] Because Yost’s challenge to his convictions cannot be brought on direct appeal, 

we dismiss his appeal of his convictions without prejudice as to his ability to 

present his claim in a petition for post-conviction relief. See Hoskins, 143 

N.E.3d at 361.

Consecutive Sentences

[14] Yost also challenges his sentence, and that is a challenge that he may—indeed, 

must—raise in a direct appeal, if at all. Kling v. State, 837 N.E.2d 502, 504 (Ind. 

2005) (citing Collins, 817 N.E.2d at 230). Specifically, Yost contends that the 

trial court erred when it imposed consecutive terms of imprisonment that 

exceeded the maximum term allowed under Indiana Code Section 35-50-1-

2(d)(2). A trial court has discretion to sentence a defendant to consecutive or 

concurrent terms of imprisonment. I.C. § 35-50-1-2(c); see also Cardwell v. State, 

2

 Graham v. State, 903 N.E.2d 538, 540 (Ind. Ct. App. 2009), involved a challenge to a sentence, not a 

conviction. And McElroy v. State, 864 N.E.2d 392, 396 (Ind. Ct. App.), trans. denied, involved a challenge to a 

conviction within the context of a PCR, not a direct appeal. 

3

 Yost cites Thompson v. State, 82 N.E3d 376, 379 (Ind. Ct. App. 2017), trans. denied; Kunberger v. State, 46 

N.E.3d 966, 971 (Ind. Ct. App. 2015); and Warton v. State, 42 N.E.3d 539, 540-41 (Ind. Ct. App. 2015). To 

the extent those cases hold that a defendant may directly appeal his conviction when he enters an “open” 

guilty plea, they are inconsistent with Supreme Court caselaw such as Hayes and Tumulty, both of which 

involved “open” guilty pleas. See Hayes, 906 N.E.2d at 820; Tumulty, 666 N.E.2d at 395. Moreover, they are 

distinguishable from the instant case in one very important respect; they all emphasized that they involved 

open pleas from which the defendants received no benefit. See, e.g., Thompson, 82 N.E3d at 379; Warton, 42 

N.E.3d at 540-41. Yost clearly did receive a benefit from his open guilty plea. Tr. at 74-55; 80-81 (both the 

prosecutor and trial court noting that, if Yost had not entered his guilty plea when he did, the State would 

have filed the additional charge of attempted murder for which the sentence of imprisonment would have 

been much longer).
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895 N.E.2d 1219, 1222 (Ind. 2008) (noting that sentencing decisions lie within 

the sound discretion of the trial court). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation 

omitted), trans. denied. 

[15] Unless a defendant’s offenses are crimes of violence as defined by statute,

4

Indiana Code Section 35-50-1-2 limits the maximum consecutive terms of 

imprisonment that a trial court may impose for a single “episode of criminal 

conduct.” I.C. § 35-50-1-2(c), (d). The total of the consecutive terms of 

imprisonment to which a defendant may be sentenced for felony convictions 

arising out of an episode of criminal conduct is seven years when the most 

serious crime is a Level 5 felony. I.C. § 35-50-1-2(d)(2); see also Daugherty v. 

State, 52 N.E.3d 885, 895 (Ind. Ct. App. 2016) (holding the “aggregate 

sentence” for offenses that were a single episode of criminal conduct could not 

exceed maximum term of incarceration under the statute), trans. denied; Wood v. 

State, 988 N.E.2d 374, 379 (Ind. Ct. App. 2013) (holding “cumulative 

sentences” for five Class D felony convictions that were a single episode of 

criminal conduct could not exceed statutory maximum term of incarceration). 

Here, all of Yost’s convictions are Level 5 felony convictions for criminal 

4

 Criminal recklessness is not listed as a crime of violence. I.C. § 35-50-1-2(a).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2834 | June 5, 2020 Page 9 of 11

recklessness. Therefore, the only question is whether Yost’s crimes were part of 

a “single episode of criminal conduct” for which his consecutive sentence must 

be limited to seven years. 

[16] An “episode of criminal conduct” is defined as “offenses or a connected series 

of offenses that are closely related in time, place, and circumstance.” I.C. § 35-

50-1-2(b). See also Purdy v. State, 727 N.E.2d 1091, 1092 (Ind. Ct. App. 2000)

(quotation and citation omitted) (stating a single episode of criminal conduct is

“an occurrence or connected series of occurrences and developments which 

may be viewed as distinctive and apart although part of a larger or more 

comprehensive series”), trans. denied. For criminal actions to be considered a 

single episode of criminal conduct, it is not necessary that the victim of each 

action is the same. Harris v. State, 861 N.E.2d 1182, 1188 (Ind. 2007). Nor is it 

required that the alleged conduct was so closely related in time, place and 

circumstances “that a complete account of one charge cannot be related without 

referring to details of the other charge,” although that is a factor the court may 

consider. Id. 

[17] Both the Supreme Court and this court have held that criminal actions that 

were not “precisely simultaneous or contemporaneous” but took place only 

seconds or minutes apart were a single episode of criminal conduct. See Reed v. 

State, 856 N.E.2d 1189, 1200 (Ind. 2006) (holding rounds of gunshots that were 

fired a few seconds apart at two different officers in two different cars were a 

single episode); see also Harris, 861 N.E.2d at 1188 (holding sexual acts against 

two different victims that took place five minutes apart in the same location 
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were a single episode of criminal conduct); Dimmit v. State, 25 N.E.3d 203, 219 

(Ind. Ct. App. 2015) (holding two batteries occurring during a bar fight within a 

few minutes of each other and against two different victims were a single 

episode), trans. denied; Henson v. State, 881 N.E.2d 36, 39 (Ind. Ct. App. 2008)

(holding two burglaries of different garages in the same morning were a single 

episode of criminal conduct), trans. denied.

5

 

[18] Here, Yost fired multiple rounds of gunshots within minutes of each other. The 

rounds were fired at different people but from the same location and apparently

for the same reason—i.e., Yost contended he was experiencing withdrawal 

symptoms because he had stopped taking his mental health medication. The 

multiple rounds of gunfire took place within a total period of twenty minutes,

which is a relatively short period of time. See Purdy, 727 N.E.2d at 1092

(holding defendant’s assault of girlfriend and subsequent acts of resisting arrest 

and battery of the police were a single episode of criminal conduct as they took 

place during “a relatively short period of time and all were related to his assault 

on [his girlfriend]”). The four rounds of gunfire were a “connected series of 

offenses that [were] closely related in time, place, and circumstance,” i.e., a 

single episode of criminal conduct.

6

 I.C. § 35-50-1-2(b). Therefore, the trial 

5

 We disagree with the State’s assertion that this case is closer to the facts of Williams v. State, 891 N.E.2d 

621, 631 (Ind. Ct. App. 2008), where the criminal acts took place a day apart.

6

 We note that, although Yost’s acts were a single “episode of criminal conduct” for purposes of the 

consecutive sentencing statute, there was nevertheless a factual basis for the five counts of criminal 

recklessness to which Yost knowingly pled guilty in order to obtain the benefit of a sentence lower than that 

for attempted murder. And, while we do not address the merits of his convictions of those five counts, we do 
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court erred in imposing an aggregate sentence in excess of seven years. I.C. § 

35-50-1-2(d)(2); Daugherty, 52 N.E.3d at 895.

Conclusion

[19] Because Yost’s challenge to his convictions cannot be brought on direct appeal

given his guilty plea, we dismiss his appeal of his convictions without prejudice 

as to his ability to present his claim in a petition for post-conviction relief. 

However, we reverse Yost’s sentence and remand with instructions for the trial 

court to limit the aggregate term of imprisonment to not more than seven years

per Indiana Code Section 35-50-1-2(c), (d)(2). 

[20] Dismissed in part, reversed and remanded in part.

Crone, J., and Altice, J., concur.

note that his sentence under the consecutive sentencing statute would be limited to seven years whether he 

was convicted of two Level 5 felony counts or five such counts. I.C. § 35-50-1-2(c), (d)(2).