`

COA affirms consecutive sentence for separate crimes

June 29, 2018

A man will have to serve his seven-year sentence for domestic battery after the Indiana Court of Appeals ruled a consecutive sentence could be imposed for separate crimes that arise from a single incident.

Tony Lemorris Clemons was charged with four counts of domestic battery and two counts of invasion of privacy after an attack on his estranged wife. As part of a plea agreement, he pleaded guilty to one count of Level 5 felony domestic battery and one court of Level 6 felony invasion of privacy. In return, the state dismissed the other charges and the pending petition to revoke probation in an unrelated case.

The Tippecanoe Superior Court imposed a five-year sentence for domestic battery and a two-year sentence for invasion of privacy. The court then order the sentence to be served consecutively.

On appeal, Clemons argued the sentences should have been imposed concurrently.

He asserted the trial court erred by imposing a consecutive sentence when the two convictions happened so closely in time. It was one single incident because he could not commit battery on S.C. without first committing invasion of privacy.

The Court of Appeals was not convinced in Tony Lemorris Clemons v. State of Indiana, 79A02-1712-CR-2931. The unanimous panel found Clemons had not demonstrated the trial court abused its discretion when it order the sentences to run consecutively.

Citing Vermillion v. State, 978 N.E.2d 459, 466 (Ind. Ct. App. 2012), the appellate court noted the consecutive sentence did not violate the prohibition of double jeopardy or any applicable statutory mandates. 

Clemons did not specifically raise the issue of double jeopardy but he bolstered his argument by citing Kocielko v. State, 938 N.E. 2d 243 (Ind. Ct. App. 2010), on rehearing Kocielko v. State, 943 N.E. 2d 1282 (Ind. Ct. App. 2011), trans. denied.

“In Kocielko, we held the trial court should have imposed concurrent sentences in order to reflect ‘the episodic nature of the crimes…’,” Judge Melissa May wrote for the court. “However, in Vermillion, we noted Kocielko was not primarily concerned with consecutive sentencing but rather double jeopardy. We then declined to interpret Kocielko to mean a trial court may not impose consecutive sentences for separate crimes arising out of a single confrontation with a single victim.”

The Court of Appeals also found the seven-year sentence was within the statutory limits for a single episode of criminal conduct. The aggregate sentence is not more than the statutory maximum of seven years set forth for a Level 5 felony in Indiana Code section 35-50-1-2(d)(2).  

 

 

ADVERTISEMENT

Recent Articles by Marilyn Odendahl