MEMORANDUM DECISION FILED
Jun 15 2016, 8:04 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith Sculfield, June 15, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1511-CR-1807
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1411-F2-52683
Robb, Judge.
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Case Summary and Issues
[1] Twenty-year-old Keith Sculfield pleaded guilty to robbery resulting in serious
bodily injury (“Count I”) and attempted robbery resulting in serious bodily
injury (“Count II”), both Level 2 felonies. Due to double jeopardy concerns,
the trial court only entered judgment of conviction on Count II and sentenced
Sculfield to twenty-five years in the Indiana Department of Correction with five
years suspended and two years of probation. Sculfield appeals his sentence,
raising two issues for our review: (1) whether the trial court abused its discretion
in sentencing him, and (2) whether Sculfield’s sentence is inappropriate in light
of the nature of the offense and his character. The State cross-appeals, raising
the sole issue of whether the trial court erred in not entering a judgment of
conviction as to Count I. Concluding the trial court did not abuse its discretion
and Sculfield’s sentence is not inappropriate, we affirm his sentence. However,
because convictions on Counts I and II do not implicate the prohibition against
double jeopardy, we reverse and remand.
Facts and Procedural History
[2] On November 20, 2014, Sculfield and another individual robbed Tire and
Wheel Service in Indianapolis. After entering the shop, Sculfield pointed a
revolver at Bradley Brooks, the shop’s owner, and took $600 from Brooks’
pocket; Sculfield also confronted Christina Clark, an employee of the store, and
demanded her purse. When Clark reached for a gun under the counter,
Sculfield shot her in the neck. Because the bullet lodged against her spine,
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Clark suffered serious bodily injury and permanent disfigurement. Security
cameras recorded the entire encounter and police officers were able to identity
Sculfield as one of the perpetrators.
[3] On November 24, 2014, the State charged Sculfield with Count I, robbery
resulting in serious bodily injury, a Level 2 felony; Counts II and III, attempted
robbery resulting in serious bodily injury, both Level 2 felonies; Count IV,
criminal confinement, a Level 3 felony; Count V, aggravated battery, a Level 3
felony; and Count VI, carrying a handgun without a license, a Class A
misdemeanor. Count I of the charging information alleges,
On or about November 20, 2014, Keith Sculfield and Cortez
Sanders did knowingly take property, that is, U.S. currency, from
another person or the presence of another person, that is, Bradley
Brooks, by using force, threatening the use of force, or placing
another person in fear, and while doing so Christina Clark
sustained serious bodily injury, that is, a gunshot wound to neck .
...
Appellant’s Appendix at 21. Count II alleges,
On or about November 20, 2014, Keith Sculfield and Cortez
Sanders did attempt to commit the crime of Robbery Resulting in
Serious Bodily Injury, which is to knowingly take property from
another person or the presence of another person by using force,
threatening the use of force, or placing another person in fear,
resulting in serious bodily injury to a person other than the
defendant, by engaging in conduct, that is, pointing a handgun at
Christina Clark and demanding her purse, that constituted a
substantial step toward the commission of the crime of Robbery
Resulting in Serious Bodily Injury, and resulted in serious bodily
injury to Christina Clark, that is, gunshot wound to the neck . . . .
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Id.
[4] On the first day of trial, Sculfield entered into a plea agreement with the State
and pleaded guilty to Counts I and II. In exchange for Sculfield pleading guilty,
the State agreed to dismiss the remaining charges. The agreement left the
sentence to the discretion of the trial court. The trial court accepted the guilty
pleas, ordered a pre-sentence investigation report, and scheduled a sentencing
hearing.
[5] During the pre-sentence investigation interview, Sculfield stated he has
regularly consumed alcohol since he was sixteen years old, marijuana since he
was thirteen years old, and opiates since he was eighteen years old. Sculfield
also admitted he used marijuana and opiates on a daily basis prior to his arrest
and was under the influence of drugs when he robbed the shop. Sculfield was
previously ordered to attend drug treatment counseling as a condition of
probation but was ultimately terminated from the program due to his failure to
attend. In addition, the pre-sentence investigation report indicates a lengthy
criminal history, including five felony convictions as an adult, and numerous
probation violations. Specifically, it indicates Sculfield violated probation in
failing to submit to drug tests, failing to comply with substance abuse
counseling, failing drug tests, and incurring new arrests. The report also
indicates Sculfield has a high risk of reoffending.
[6] At the sentencing hearing, Sculfield argued the trial court should enter
judgment of conviction on Count I as a Level 5 felony instead of as a Level 2
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felony due to the prohibition against double jeopardy; both the trial court and
the State agreed.1 In its sentencing statement, the trial court found, as
mitigating circumstances, Sculfield’s acceptance of responsibility, hardship on
his family, and his drug addiction, but gave each factor little weight. In terms
of aggravating circumstances, the trial court noted Sculfield’s extensive criminal
history, numerous violations of probation, and his failure to take advantage of
opportunities to address his drug problem. The trial court concluded the
aggravators outweighed the mitigators.
[7] However, at no point did the trial court state it was entering a judgment of
conviction as to either Count and the record does not contain an abstract of
judgment. Despite these omissions, the trial court stated it intended to sentence
Sculfield to five years in the Department of Correction on Count I, to be served
concurrently to Sculfield’s sentence on Count II. As to Count II, the trial court
stated it intended to sentence Sculfield to twenty-five years in the Department
of Correction with five years suspended and two years of probation. Following
the sentencing hearing, the trial court issued a signed sentencing order, entering
judgment of conviction on Count II and sentencing Sculfield to twenty-five
years in the Department of Correction with five years suspended and two years
of probation. The sentencing order further states judgment of conviction was
1
The record does not indicate the State formally amended the charging information.
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not entered on Count I “due to double jeopardy rule.” 2 Id. at 15. Therefore,
the trial court only entered judgment of conviction and sentenced Sculfield on
Count II. This appeal and cross-appeal ensued.
Discussion and Decision
I. Sentencing
A. Standard of Review
[8] We review a trial court’s sentencing decision 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. An abuse of discretion occurs when 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.
(citation omitted). A trial court may abuse its discretion in failing to enter a
sentencing statement, finding aggravating or mitigating circumstances
unsupported by the record, or noting reasons that are improper considerations
as a matter of law. Id. at 490-91. However, a trial court does not abuse its
discretion in failing to properly weigh mitigating and aggravating
circumstances. Id. at 491.
2
The Chronological Case Summary also notes “Judgment of Conviction not entered on count 1 due to
double jeopardy rule. Count 1 is proven by plea agreement as a Level 5 felony.” Appellant’s App. at 13.
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[9] In addition, Indiana Appellate Rule 7(B) provides, “The Court may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” The defendant bears the
burden of persuading this court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a
sentence as inappropriate turns on “the culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Finally, we note the principal role of appellate review is to “leaven the outliers,”
not achieve the perceived “correct” result in each case. Id. at 1225.
B. Aggravating and Mitigating Circumstances
[10] Sculfield contends the trial court abused its discretion in not giving enough
weight to certain mitigating circumstances and too much weight to certain
aggravating circumstances. Specifically, he argues the trial court should have
given more weight to his guilty plea, the hardship on his children, and his drug
addiction, and additionally gave too much weight to a prior juvenile robbery
charge. He does not argue the trial court abused its discretion in failing to
identify certain mitigating circumstances or finding certain circumstances
unsupported by the record. As the State correctly points out, Sculfield’s
arguments fail because the trial court cannot abuse its discretion in failing to
give proper weight to mitigating and aggravating circumstances. See Anglemyer,
868 N.E.2d at 491.
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C. Inappropriate Sentence
[11] Sculfield further contends his sentence is inappropriate in light of the nature of
the offense and his character. The trial court entered judgment of conviction on
Count II, attempted robbery resulting in serious bodily injury, a Level 2 felony.
As to the nature of the offense, the advisory sentence is the starting point the
legislature selected as an appropriate sentence for the crime committed. Id. at
494. Pursuant to Indiana Code section 35-50-2-4.5, “A person who commits a
Level 2 felony shall be imprisoned for a fixed term of between ten (10) and
thirty (30) years, with the advisory sentence being seventeen and one-half (17
½) years.” The trial court sentenced Sculfield to twenty-five years in the
Department of Correction with five years suspended and two years of
probation. We note Sculfield entered the shop carrying a revolver and
demanded Clark hand over her purse. When Clark reached under the counter,
Sculfield shot her in the neck and the bullet lodged against her spine causing her
seriously bodily injury and permanent disfigurement. As the trial court stated
at sentencing, Sculfield is “lucky” Clark survived the shooting.
[12] As to Sculfield’s character, he was twenty years old when he committed these
crimes, and in his short adult life, Sculfield has now been convicted of six
felonies. Despite these numerous convictions, Sculfield has often received
probation, which he violated multiple times. In fact, Sculfield was on probation
at the time he committed the current offense. This complete disregard for
authority indicates Sculfield has learned nothing from his recent encounters
with the law and has squandered multiple opportunities to be placed on
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probation. See Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (“Probation is a
matter of grace left to trial court discretion, not a right to which a criminal
defendant is entitled.”). We further note Sculfield has continuously failed to
take advantage of drug-treatment services. Cf. Bryant v. State, 802 N.E.2d 486,
501 (Ind. Ct. App. 2004) (holding the trial court did not err in concluding the
defendant’s substance abuse was an aggravating factor where the record showed
he “was aware of his drug and alcohol problem, yet he had not taken any
positive steps to treat his addiction”), trans. denied. Finally, we note Sculfield
was previously convicted of five felonies, including residential entry,
automobile theft, possession of cocaine, and resisting law enforcement. It is
apparent Sculfield’s current offense represents a violent escalation in the
seriousness of his crimes. Given Sculfield’s extensive criminal history at such a
young age, complete disregard for authority, and inability to take advantage of
previously lenient sentences and drug treatment services, we conclude his
sentence is not inappropriate in light of the nature of the offense and his
character.
II. Double Jeopardy
A. Standard of Review
[13] The State contends the trial court erred as a matter of law in not entering
judgment of conviction due to concerns of implicating double jeopardy despite
the parties agreeing at sentencing judgment of conviction on Count I should be
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entered as a Level 5 felony.3 After accepting a plea of guilty, a trial court shall
enter a judgment of conviction.4 Ind. Code § 35-38-1-1.
[14] Article 1, Section 14 of the Indiana Constitution provides, “No person shall be
put in jeopardy twice for the same offense.”
[T]wo or more offenses are the “same offense” in violation of
Article I, Section 14 of the Indiana Constitution, if, with respect
to either the statutory elements of the challenged crimes or the
3
The State requests we remand to the trial court with instructions to enter judgment of conviction and a
sentence on Count I. Sculfield did not file a response to the State’s cross-appeal issue. We believe the
procedural posture of this cross-appeal is substantively equivalent to situations where an appellee does not
provide an appellee brief. See In re Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). In instances where no
answer brief is filed, the judgment may be reversed if the appellant presents a prima facie case of error. Id.
The purpose of this rule is to relieve us from the burden of controverting arguments advanced for reversal.
Id. Here, we are tasked with examining the State’s cross-appeal issue without the benefit of a rebuttal brief.
Therefore, we will remand to the trial court if the State presents a prima facie case of error. See id.
4
In the charging information, Counts I and II were enhanced to Level 2 felonies due to the allegation
Clark suffered serious bodily injury. Sculfield pleaded guilty to each count and the trial court accepted
both pleas. However, at the sentencing hearing, the parties became concerned of implicating double
jeopardy because both charges were enhanced due to the allegation Clark, and only Clark, suffered
serious bodily injury. See Smith v. State, 872 N.E.2d 169, 177 (Ind. Ct. App. 2007) (stating “if the same
bodily injury” is used to enhance two separate offenses, “entering judgment of conviction for both
counts would be improper”), trans. denied. Therefore, the parties agreed at the sentencing hearing
Sculfield would plead guilty to Count I as a Level 5 felony for knowingly taking property from Brooks
by the use of force or by threatening the use of force thereby removing any double jeopardy concerns.
In addition, the trial court stated during the sentencing hearing it was sentencing Sculfield on Count I
to five years in the Department of Correction to be served concurrently with the sentence on Count II.
However, the trial court never stated it was entering judgment of conviction on either count during the
sentencing hearing. Rather, despite the parties’ agreement, the trial court—after accepting both pleas
at the guilty plea hearing and adjourning the sentencing hearing without entering judgment of
conviction on either count—issued a signed sentencing order entering judgment of conviction only on
Count II due to concerns Count I, as a Level 5 felony, was barred by the prohibition against double
jeopardy. As a result, the State did not have an opportunity to address the trial court’s concern that
Count I implicated double jeopardy. In addition, the trial court did not enter an abstract of judgment.
We take issue with the fact the trial court stated it was sentencing Sculfield on each count without first
entering judgment of conviction on either count. The trial court has no power to enter a sentence
without first entering judgment of conviction and therefore the trial court erred in this regard. In
addition, we note the record does not contain an abstract of judgment, but merely a signed sentencing
order explaining why the trial court was not entering judgment of conviction on Count I. On remand,
the trial court is to enter a proper abstract of judgment.
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actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense.
Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in
original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We
review double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766
(Ind. Ct. App. 2015).
Under the actual evidence test, we examine the actual evidence
presented at trial in order to determine whether each challenged
offense was established by separate and distinct facts. To find a
double jeopardy violation under this test, we must conclude that
there is a reasonable possibility that the evidentiary facts used by
the fact-finder to establish the essential elements of one offense
may also have been used to establish the essential elements of a
second challenged offense. The actual evidence test is applied to
all the elements of both offenses.
Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal
quotation marks omitted). “In other words . . . the Indiana Double Jeopardy
Clause is not violated when the evidentiary facts establishing the essential
elements of one offense also establish only one or even several, but not all, of
the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833
(Ind. 2002).
B. Robbery and Attempted Robbery
[15] Pursuant to Indiana Code section 35-42-5-1,
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A person who knowingly or intentionally takes property from
another person or from the presence of another person:
(1) by using or threatening the use of force on any person;
or
(2) by putting any person in fear;
commits robbery, a Level 5 felony. However, the offense is a
Level 3 felony if it is committed while armed with a deadly
weapon or results in bodily injury to any person other than a
defendant, and a Level 2 felony if it results in serious bodily
injury to any person other than a defendant.
See also Ind. Code § 35-41-5-1(a) (defining attempt).
[16] We conclude Counts I and II were established by separate and distinct facts.
The factual basis supporting Count I was that Sculfield pointed the revolver at
Brooks and took $600 dollars from his pocket. Count II alleged Sculfield
attempted to take property from Clark by the use of force or by threatening the
use of force, causing serious bodily injury to Clark. The factual basis
supporting Count II was that Sculfield attempted to steal Clark’s purse, and in
so doing, shot her and caused serious bodily injury. Because each count is
supported by separate and distinct facts, we conclude the trial court erred in not
entering judgment of conviction on Count I as a Level 5 felony.
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Conclusion
[17] The trial court did not abuse its discretion in sentencing Sculfield and
Sculfield’s sentence is not inappropriate in light of the nature of the offense and
his character. The trial court did err, however, in not entering judgment of
conviction on Count I. Accordingly, we affirm in part, reverse in part, and
remand with instructions the trial court enter an abstract of judgment reflecting
entry of judgment of conviction on Counts I and II, with Count I as a Level 5
felony, and then impose the sentence entered during the sentencing hearing.
[18] Affirmed in part, reversed in part, and remanded with instructions.
Najam, J., and Crone, J., concur.
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