Cole v. State

Page 417

850 N.E.2d 417

Jeffrey L. COLE, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 18A02-0506-CR-560.

Court of Appeals of Indiana.

June 5, 2006.

Joseph P. Hunter, Muncie, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Jeffrey L. Cole, challenges the trial court's imposition of maximum, consecutive sentences upon his convictions for Resisting Law Enforcement as a Class D felony and Possession of Chemical Reagents or Precursors with Intent to Manufacture as a Class D felony. Specifically, Cole claims that the crimes were part of a single episode of criminal conduct and that the trial court's discretion was statutorily limited to imposition of an aggregate sentence not exceeding the presumptive sentence for a Class C felony, the next-higher class of felony than the most serious crime for which he was convicted.

We reverse and remand.

The underlying facts are not in dispute and reveal that on April 24, 2003, Cole was driving a Chevrolet Blazer in Muncie, Indiana when he was spotted by a police officer who knew that Cole had an outstanding warrant for his arrest for being an habitual traffic offender. When the police officer tried to pull Cole over, Cole fled, and the police chased him for approximately one-half hour. Cole was finally apprehended in nearby Yorktown. After the chase was over, the police searched the Blazer and discovered a tank which contained anhydrous ammonia which Cole planned to use in the manufacture of methamphetamine.

That same day the State charged Cole with Count I, dealing in methamphetamine as a Class B felony; Count II, resisting law enforcement as a Class D felony; Count III, possession of anhydrous ammonia with intent to manufacture methamphetamine as a Class C felony; and Count IV, possession of chemical reagents or precursors with intent to manufacture methamphetamine as a Class D felony. Cole also faced the previous charge of being an habitual traffic offender. On April 26, 2005, Cole pleaded guilty to Counts II and IV. Pursuant to the plea agreement, Cole also pleaded guilty to the charge of being an habitual traffic offender as a Class D felony. The plea agreement provided that sentencing would be left open to the discretion of the trial court and that the plea was made "without a waiver of any rights to modify or appeal the sentence . . . ." App. at 37. The trial court accepted the plea and ordered a sentencing hearing to be held on May 23, 2005. At the conclusion of the May 23 hearing, the trial court sentenced Cole to the maximum sentence of three years upon both Counts II and IV, to be served consecutively. The trial court also sentenced Cole to eighteen months upon his conviction for being an habitual traffic offender, to be served concurrently with the three-year sentence in Count IV. Cole filed a notice of appeal on June 22, 2005.

Upon appeal, Cole does not challenge the sentence imposed upon his conviction for being an habitual traffic offender. Nor does he claim that the trial court erred in sentencing him to the maximum three-year sentences in Counts II and IV. He instead claims that the trial court erred in ordering that the sentences imposed in Counts II and IV run consecutively for a total of six years. Cole bases his claim upon Indiana Code § 35-50-1-2(c) (Burns Code Ed. Repl 2004), which states in relevant part:

"The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted."¹

Here, Cole pleaded guilty to committing two Class D felonies. Insisting that these crimes consisted of one episode of criminal conduct, Cole argues that his total term of imprisonment could not exceed four years, the presumptive sentence for a Class C felony. See Ind.Code § 35-50-2-6 (Burns Code Ed. Repl.2004). Neither party claims that the instant crimes were "crimes of violence" as mentioned in I.C. § 35-50-1-2(c). Thus, the sole issue presented upon appeal is whether the crimes Cole pleaded guilty to constituted a single episode of criminal conduct.

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). An episode means an occurrence or connected series of occurrences and developments that may be viewed as distinctive and apart although part of a larger or more comprehensive series. Johnican v. State, 804 N.E.2d 211, 217 (Ind.Ct.App. 2004). The singleness of a criminal episode should be based upon whether the alleged conduct was so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to the details of the other charge. Id.

We recognize that the case law deciding what constitutes an episode of criminal conduct for purposes of I.C. § 35-50-1-2(c) has not been wholly consistent. In Ballard v. State, 715 N.E.2d 1276, 1281 (Ind.Ct.App.1999), the court held that the defendant's convictions for one count of residential entry and two counts of battery constituted a single episode of criminal conduct. The court noted that the batteries were committed as a direct result of the defendant's entry into the residence of his ex-girlfriend and that had he not unlawfully entered the residence, he would not have discovered his ex-girlfriend with another man and battered them. Id.

In Purdy v. State, 727 N.E.2d 1091 (Ind. Ct.App.2002), trans. denied, the defendant had pounded on and threatened to kick down the door on his former girlfriend's house. As she fled her home to get help, Purdy grabbed her by the shoulders, causing bruising. Once the police arrived at the scene and attempted to arrest Purdy, he resisted arrest by fighting, kicking, and even spitting on one officer. Purdy also attempted to flee. Upon appeal, the court held that the crimes for which Purdy was convicted, i.e. intimidation, battery, and resisting law enforcement, constituted one episode of criminal conduct, and the imposition of consecutive sentences exceeded the limits set forth in I.C. § 35-50-1-2(c). Id. at 1093. The court noted that all of the Purdy's acts took place during a relatively short period of time and were all related to his assault on his ex-girlfriend. Id.

More on point with the present case is Ratliff v. State, 741 N.E.2d 424 (Ind.Ct. App.2000), trans. denied. In that case, an individual telephoned the police to report that a suspected drunken driver had twice driven through his yard. The caller gave a detailed description of the car and its license number. Shortly thereafter, a sheriff's deputy noticed a car driving in an erratic manner and which matched the description given by the caller. When the deputy attempted to stop the car, Ratliff, the driver, fled from the police and led them on a chase. Ratliff eventually abandoned the car and fled on foot, only to be found lying face-down in a cornfield with plastic bags containing marijuana concealed beneath him. Ratliff was later convicted of two counts of operating a vehicle while intoxicated, possession of marijuana, and resisting law enforcement. Although the trial court "merged" the two operating while intoxicated convictions for purposes of sentencing, it sentenced Ratliff to consecutive sentences on the remaining counts, for a total of seven years. Upon appeal, Ratliff claimed that his aggregate sentence of seven years exceeded the limits imposed by I.C. § 35-50-1-2(c). After discussing both Ballard and Purdy, the court wrote:

"Although it may be true that Ratliff's OWI and resisting law enforcement convictions could not be related without referring to both crimes, the possession of marijuana conviction is wholly separate, related only by the fact that the crime was discovered in the course of pursuing a fleeing drunk driver. . . . That the three criminal acts were part of a larger or more comprehensive series of acts which were discovered simultaneously does not distract from the fact that they are distinct acts, not all of which bear a direct relation to the others. Therefore, we hold that Ratliff' s actions did not constitute a single episode of criminal conduct, and the trial court was not limited by [I.C. §] 35-50-1-2(b) in sentencing Ratliff to consecutive terms of imprisonment." Id. at 434 (internal quotations omitted).

Judge Mathias dissented from the Ratliff majority's conclusion with regard to sentencing and wrote separately, reasoning that "Ratliff' s possession of marijuana was directly and inextricably connected to the other offenses, as the marijuana would never have been discovered had Ratliff not been driving while intoxicated." Id. at 436. Judge Mathias noted that the possession offense did not require a volitional act, and occurred at the same time and place as did the other offenses. Id. Under the Ratliff majority's rationale, Judge Mathias argued, "every possession offense, by virtue of its non-volitional nature, will never be part of any criminal episode," which he concluded contravened the language and intent of the statute. Id. In the present case, Cole acknowledges the holding in Ratliff, but encourages us to adopt Judge Mathias's position.

This is precisely what another panel of this court did in Johnican v. State, 804 N.E.2d 211 (Ind.Ct.App.2004). In that case, police officers observed the defendant, whom they knew to have an outstanding warrant for his arrest, walking...