Alandus D. James v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Feb 19 2015, 10:00 am 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 ATTORNEYS FOR APPELLEE Peter D. Todd Gregory F. Zoeller Elkhart, Indiana Attorney General of Indiana

William Hackl Brainard Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alandus D. James, February 19, 2015

Appellant-Defendant, Court of Appeals Cause No. 20A03-1405-CR-173 v. Appeal from the Elkhart Superior Court; The Honorable George W. Biddlecome, Judge; The Honorable State of Indiana, Thomas Murto, Magistrate; Appellee-Plaintiff. 20D03-1206-FD-765 20D03-1208-CM-1493 20D03-1208-CM-1494

May, Judge. Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-173 | February 19, 2015 Page 1 of 4 [1] Alandus D. James appeals the court’s order that he serve a thirty-month

sentence for class D felony residential entry1 consecutive to two concurrent

eighteen-month sentences for Class D felony battery on a child2 and Class D

felony strangulation.3 [2] We affirm.

Facts and Procedural History4 [3] On June 21, 2012, Rhonelle Murphy discovered James, whom she knew,

entering her residence through a window. Once inside, James began punching

Murphy in the face with his fist. M.A.W., Murphy’s daughter, ran to help her

and begged James to stop. At some point, James hit M.A.W. instead of

Murphy. James grabbed Murphy by the neck and began to strangle her. When

James let go of Murphy’s neck, he started kicking her in the face. Murphy and

M.A.W. fled to the bathroom. James followed them and continued to punch

Murphy with his fists. James finally left, and Murphy called the police. James

was still outside when the police arrived. When Murphy identified James as

her assailant, he tried to use the alias “Aljimar Gregory” but eventually

1 Ind. Code § 35-43-2-1.5 (2011). 2 Ind. Code § 35-42-2-1 (2011). 3 Ind. Code § 35-42-2-9 (2011). 4 The court also sentenced James in the same cause for being an habitual offender, for misdemeanor battery under cause number 20D03-1208-CM-1493, and for possession of marijuana under cause number 20D03- 1208-CM-1494. James does not challenge those sentences.

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admitted his real name. (Tr. at 285-86, 336.) The police determined James had

outstanding warrants and arrested him. [4] On June 27, 2012, the State charged James with Class D felony battery on a

child; Class D felony strangulation; and Class D felony residential entry. A

jury found James guilty of the charges. The trial court ordered James to serve

eighteen months for the battery concurrent with eighteen months for the

strangulation, and to serve thirty months for residential entry consecutive to

those concurrent sentences.

Discussion and Decision [5] James asserts that the trial court abused its discretion when ordering the

sentence for residential entry to be served consecutive to the other two

sentences. [6] Whether to impose consecutive or concurrent sentences is within the trial

court’s sound discretion and is reviewed only for an abuse of discretion.

Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). The trial court

abuses its discretion if its decision is clearly against the logic and effect of the

facts and circumstances. Id. [7] “[T]he court shall determine whether terms of imprisonment shall be served

concurrently or consecutively. The court may consider the: (1) aggravating

circumstances . . . and (2) mitigating circumstances . . . in making a

determination under this subsection. . . .” Ind. Code § 35-50-1-2(c). “To

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impose consecutive sentences, the trial court must find at least one aggravating

circumstance.” Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999). [8] Although the court did not explicitly state a reason for imposing consecutive

sentences, it is evident the court believed the maximum sentence of forty-eight

months was “required” because “[t]here are issues of violence in every one of

these counts . . . .” (Tr. at 529.) After so stating, the court reviewed James’

criminal history, noting violence in each of those crimes as well. The court

determined James’ violence and the “lack of success in probationary area” were

aggravators, (id. at 532), and noted the mitigators were not enough to reduce

the sentence from forty-eight months. (Id.) Thus, the trial court did not abuse

its discretion when it ordered James to serve the residential entry sentence

consecutive to the concurrent battery and strangulation sentences. See, e.g.,

Smith v. State, 770 N.E.2d 818, 821 (Ind. 2002) (factors used to enhance

sentence can also be cited to impose consecutive sentences). Accordingly, we

affirm. [9] Affirmed.

Barnes, J., and Pyle, J., concur.

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