MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Oct 31 2016, 8:26 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                  Gregory F. Zoeller
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jordon P. Stroud,                                       October 31, 2016
Appellant-Defendant,                                    Court of Appeals Case Nos.
                                                        02A04-1606-CR-1355 and
        v.                                              02A03-1606-CR-1364
                                                        Appeal from the Allen Superior
State of Indiana,                                       Court
Appellee-Plaintiff                                      The Honorable Wendy W. Davis,
                                                        Judge
                                                        Trial Court Cause Nos.
                                                        02D04-1601-F6-68 and -91



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
2016                                                                                       Page 1 of 8
                                             Case Summary
[1]   Jordon P. Stroud brings separate appeals from the one and one-half year

      consecutive sentences imposed by the trial court in two cases, following his

      guilty pleas and convictions for level 6 felony domestic battery and level 6

      felony possession of a legend drug or precursor without a prescription. Because

      he was sentenced for these crimes simultaneously, we address Stroud’s two

      appeals in a single decision. The sole restated issue presented for our review is

      whether the trial court abused its discretion during sentencing. Finding no

      abuse of discretion in either case, we affirm the sentences.


                                 Facts and Procedural History
[2]   Ashley Williamson and Stroud were in a three-year relationship and had one

      child together, S.S. On October 27, 2015, Stroud punched Williamson in the

      face with a closed fist in the presence of nine-month-old S.S. Stroud’s punch

      broke Williamson’s nose and caused her to bleed. While receiving treatment at

      a medical center, Williamson reported to staff that Stroud was intoxicated,

      “yanked her by the hair,” “punched her in the back of the head,” and punched

      her in the face. State’s Ex. 12.


[3]   On January 15, 2016, Stroud was a passenger in a vehicle involved in a traffic

      stop. Stroud provided identification to the police officer involved. When the

      officer checked Stroud’s information, he learned that Stroud had an active

      warrant for his arrest based upon his altercation with Williamson. Stroud was

      arrested, taken into custody, transported to the Allen County Jail, and charged

      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
      2016                                                                                       Page 2 of 8
      with level 6 felony domestic battery and level 6 felony battery under cause

      number 02D04-1601-F6-68 (“Cause 68”). During a search incident to his

      arrest, a gray plastic baggie tied in a knot fell out of Stroud’s right pant leg. The

      bag contained 12.4 grams of what was later identified as quetiapine fumarate.

      On January 22, 2016, the State charged Stroud with level 6 felony possession of

      a legend drug or precursor without a prescription under cause number 02D04-

      1601-F6-91 (“Cause 91”). 1


[4]   On May 3, 2016, Stroud pled guilty to his crimes, and a consolidated

      sentencing hearing was scheduled for May 31, 2016. During the hearing, the

      trial court accepted Stroud’s guilty pleas, merged the level 6 felony battery

      count with the level 6 felony domestic battery count, and entered judgment of

      conviction for one count of level 6 felony domestic battery in Cause 68 and one

      count of level 6 felony possession of a legend drug or precursor without a

      prescription in Cause 91. The trial court sentenced Stroud to one and one-half

      years’ imprisonment on each conviction to be served consecutively. 2




      1
       Quetiapine fumarate qualifies as a legend drug because it is not a controlled substance but does require a
      prescription. Appellant’s App. Vol. II. at 10; see Ind. Code § 16-42-19-2.
      2
       The record indicates that, in addition to the foregoing crimes, Stroud was simultaneously sentenced for a
      probation violation under cause number 02D05-1506-F6-483. Although it appears that a notice of appeal has
      been filed in that case, an appeal has not yet been perfected in this Court, and Stroud states that he does not
      appeal that portion of his sentence. See Appellant’s Br. Cause 68 at 5 n.1 and Appellant’s Br. Cause 91 at 6
      n.1.
      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
      2016                                                                                       Page 3 of 8
                                     Discussion and Decision
[5]   Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. An abuse of that discretion occurs where the trial court’s 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. A trial court may abuse its discretion in a number of ways, including: (1)

      failing to enter a sentencing statement at all; (2) entering a sentencing statement

      that includes aggravating and mitigating factors that are unsupported by the

      record; (3) entering a sentencing statement that omits reasons that are clearly

      supported by the record; or (4) entering a sentencing statement that includes

      reasons that are improper as a matter of law. Id. at 490-91. “Under those

      circumstances, remand for resentencing may be the appropriate remedy if we

      cannot say with confidence that the trial court would have imposed the same

      sentence had it properly considered reasons that enjoy support in the record.”

      Id. at 491.


[6]   Trial courts imposing felony sentences must make statements which may be

      oral, written, or both. Gleason v. State, 965 N.E.2d 702, 711 (Ind. Ct. App.

      2012). Such statements must include a reasonably detailed recitation of the trial

      court’s reasons for imposing a particular sentence. Anglemyer, 868 N.E.2d at

      490. “This necessarily requires a statement of facts, in some detail, which are

      peculiar to the particular defendant and the crime, as opposed to general

      impressions or conclusions.” Id. “The purpose of this rule is to guard against
      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
      2016                                                                                       Page 4 of 8
      arbitrary sentencing and to provide an adequate basis for appellate review.”

      Webb v. State, 941 N.E.2d 1082, 1088 (Ind. Ct. App. 2011), trans. denied.


[7]   Stroud argues that the trial court abused its discretion during sentencing by

      failing to enter a sufficient sentencing statement. Specifically, Stroud contends

      that the trial court failed to properly differentiate among the multiple cases for

      which it was imposing sentence. The trial court’s oral sentencing statement

      provided,

              All right, Mr. Stroud as I look to sentencing you this morning, I
              will note as a mitigating circumstance that you have pled guilty
              and that you showed remorse. Candidly, I think that’s
              overshadowed a bit by the fact of the aggravating circumstances
              in this case. If I look over your criminal history – and Mr.
              Swanson knows this, at 22 years old, it’s typically not my first
              instinct to send a 22-year-old down the river to the Indiana
              Department of Corrections. However, I look [at] your history,
              and I will take the facts and circumstances in this case, and I’m
              going to make them an aggravator. I read the probable cause
              affidavit which you told me was true and correct. I’ve reviewed
              the medical records as well as looked at the photos this morning.
              So the facts and circumstances in this particular matter, the
              Domestic Battery, is [sic] aggravating. Additionally, you have
              three juvenile delinquencies, all which would have been felonies
              if they were committed by you as an adult. You have one prior
              felony conviction and four prior misdemeanor convictions. Your
              misdemeanor suspended sentence has already been revoked
              once, and candidly, your prior felonies – well, what would have
              been a felony while in the juvenile system, I also find
              aggravating. You’ve got a Child Molesting as a Class B Felony,
              Child Molesting as a Class C Felony. You’ve already had a –
              you’ve had thefts, marijuana which is drugs. Candidly, that
              night you got caught with drugs that are really concerning to me

      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
      2016                                                                                       Page 5 of 8
              and a legend in your pocket when you were arrested. I have no
              idea what you are doing with that, but I can – one can only
              assume. Most tellingly though or most aggravating to me is you
              were on probation which is a gift. Probation is a gift and while
              on probation you decided to pick up two more felonies, which
              are the two that are before me. I find that extremely aggravating.
              Prior attempts at rehabilitation have failed, and I take that as
              aggravating.


      Tr. at 10-12.


[8]   Stroud complains that the trial court’s oral sentencing statement was primarily

      directed toward Cause 68 thereby creating confusion regarding which

      aggravating factors applied to Cause 68 and which aggravating factors, if any,

      applied to Cause 91. To the contrary, our review of the statement reveals that

      the trial court found mitigating factors (guilty plea and remorse) and

      aggravating factors (criminal history and failed attempts at rehabilitation) that

      clearly applied to each of Stroud’s crimes. The only aggravating factor that was

      applicable solely to Cause 68 was the nature and circumstances of the crime.

      See Gleason v. State, 965 N.E.2d 702, 711 (Ind. Ct. App. 2012) (nature and

      circumstances of the crime can be an aggravating factor). This was clearly

      articulated by the trial court, and we are not confused.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
      2016                                                                                       Page 6 of 8
[9]    To the extent that Stroud claims that the trial court failed to properly explain its

       reasons for imposing enhanced and consecutive sentences, 3 this argument also

       fails. It is well settled that the trial court may rely on the same reasons to

       impose an enhanced sentence and also to impose consecutive sentences, and

       the court is under no obligation “to identify the aggravators that support

       consecutive sentences separately from the factors that support sentence

       enhancement.” Smith v. State, 770 N.E.2d 818, 821 (Ind. 2002). The sentencing

       statement here adequately explained the trial court’s reasons for imposing

       enhanced and consecutive sentences. 4


[10]   We agree with Stroud that, during a consolidated sentencing hearing as

       occurred here, the best practice would have been for the trial court to articulate

       its reasons for sentencing each crime separately. Nevertheless, remand for

       resentencing is unnecessary. The purpose of the sentencing statement has been

       met in this case, as it has protected against arbitrary sentencing and has

       provided an adequate basis for our appellate review. See Webb, 941 N.E.2d at

       1088. Moreover, we can say with confidence that the trial court would have

       imposed the same sentence had its recitation been directed to each crime



       3
        The sentencing range for a level 6 felony is between six months and two and one-half years, with an
       advisory sentence of one year. Ind. Code § 35-50-2-7(b). Stroud was sentenced to one and one-half years for
       each crime, to be served consecutively.
       4
         Stroud also complains that the trial court failed to note any aggravating or mitigating factors in its written
       judgment of conviction. See Appellant’s App. at 11. However, our approach in reviewing sentences in non-
       capital cases is to examine both the written and the oral sentencing statements to discern the findings of the
       trial court. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We have the option of crediting the statement
       that accurately pronounces the sentence or remanding for resentencing. Id. Here, we choose to credit the
       trial court’s oral statement as reflecting the trial court’s findings regarding aggravating and mitigating factors.
       Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
       2016                                                                                       Page 7 of 8
       separately. Therefore, we conclude that the trial court did not abuse its

       discretion during sentencing, and we affirm Stroud’s sentences.


[11]   Affirmed.


       Kirsch, J., and May, J., concur.




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