SMITH v. STATE (2025)

MEMORANDUM DECISION

[1] Kevin E. Smith appeals the sentence imposed by the trial court following his convictions for one count of criminal recklessness as a level 5 felony, two counts of criminal recklessness as level 6 felonies, and resisting law enforcement as a class A misdemeanor. He claims the sentence was not authorized by statute. We affirm.

Facts and Procedural History

[2] At around 9:00 p.m. on October 30, 2023, Smith walked into O'Sullivan's, a crowded pub in Fort Wayne, and ordered a beer. The bartender, Elizabeth Peters, observed that Smith was carrying a backpack and that he had “a gun on his waistline.” Transcript Volume II at 140. Guns were not permitted in O'Sullivan's, and it was “[c]learly stated on the door that no guns or weapons are allowed.” Id. Peters informed her manager and off-duty fellow bartender, Ramon Amador. Amador approached Smith and told him that guns were not allowed in the pub and asked him to take the weapon to his vehicle. Smith initially denied having a gun, and after Amador told him that he could see it on him, Smith “started to get a little agitated” and started “calling [Amador] names.” Id. at 152. After about five minutes of arguing, Smith left O'Sullivan's. Immediately thereafter, Peters heard gunshots outside and called 911.

[3] Police quickly responded to the scene. Video recordings that depicted the exterior of O'Sullivan's showed Smith exit O'Sullivan's, walk down the sidewalk, fire a gun in the air and in the direction of the pub a number of times, and then begin to walk further away. Smith walked out of view of the video before a second set of gunshots can be heard. A restaurant named Paula's was on the next block down Main Street. Jerry Bayes, who lived near Paula's, was in his living room when he heard “pop, pop, pop, pop” and went outside to see what was happening. Id. at 190. Bayes observed Smith firing a gun “over Paula's parking lot” and “shooting the windows.” Id. at 191. Smith then “carried on down across the street ․ Green Street ․ and he stopped there and started blasting again” at a fire engine house and back toward O'Sullivan's. Id. at 192. Bayes observed a police car “pull up” and he heard one more shot before hearing police yell to Smith “Stop, stop, stop. Don't try and run.” Id. at 193. Bayes observed Smith run behind a house.

[4] Officers on the scene reported that Smith ran from them with a handgun in his hand. They ordered him to stop, Smith failed to comply, and as they pursued him they saw a “muzzle flash from his barrel” and heard a single gunshot as he continued running. Id. at 208. The officers returned fire, striking Smith. Officers administered aid to Smith until an ambulance arrived. Police located a loaded Beretta 9mm handgun next to Smith. His backpack contained additional loaded and unloaded magazines and additional boxes of 9mm ammunition. Officers recovered thirty-two shell casings in the area outside of O'Sullivan's, thirteen shell casings in the area across the street from Paula's, and twelve shell casings in the area across the street from Paula's closer to the fire engine house.

[5] On November 16, 2023, the State charged Smith with Count I, criminal recklessness as a level 5 felony, Count II, criminal recklessness as a level 6 felony, Count III, criminal recklessness as a level 6 felony, Count IV, unlawful carrying of a handgun as a class A misdemeanor, and Count V, resisting law enforcement as a class A misdemeanor. Prior to trial, and following a competency evaluation, the trial court found Smith incompetent to stand trial and ordered him committed to a psychiatric facility for competency restoration. Smith was subsequently found to be competent and the case was scheduled for a speedy trial in August 2024.

[6] A jury trial began on August 7, 2024. However, the court declared a mistrial attributable to the State. On August 27, 2024, the State moved to dismiss the handgun charge, and on September 4, 2024, a second jury trial began on the remaining four charges. The jury found Smith guilty on all four counts. On September 17, 2024, the court held a sentencing hearing after which it imposed an aggregate sentence of seven years executed. Specifically, the court sentenced Smith to consecutive sentences of three years on Count I, one and one-half years on Count II, one and one-half years on Count III, and one year on Count V. In its sentencing statement, the court explained that it was ordering consecutive sentences “as each count is separate and distinct and supported by independent evidence. And pursuant to the statute, the consecutive net term can exceed no more than seven years. The net sentence that I've just imposed is a term of seven years.” Transcript Volume III at 105.

Discussion

[7] Smith challenges the sentence imposed by the trial court. He argues that “[t]he court incorrectly determined that the conduct underlying Counts I, II, and III were not part of the same episode of criminal conduct. Thus, the court's one and a half (1 1/212) year sentences for Counts II and III, which were consecutive to the sentence for Count I, violated Ind. Code § 35-50-2-1.3(c), by impermissibly exceeding the one (1) year advisory sentence for Level 6 felonies.” Appellant's Brief at 9. The State responds that Smith is relying on statutory language that has since been “rendered obsolete” and that, pursuant to Ind. Code § 35-50-1-2(d), the trial court did not exceed its sentencing authority. Appellee's Brief at 12. We agree with the State.

[8] “A sentence that is contrary to, or violative of, a penalty mandated by statute is illegal in the sense that it is without statutory authorization.” Fisel v. State, 198 N.E.3d 696, 698 (Ind. Ct. App. 2022) (quoting Ben-Yisrayl v. State, 908 N.E.2d 1223, 1228 (Ind. Ct. App. 2009) trans. denied). “ ‘[C]ourts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute.’ ” Id. (quoting Wilson v. State, 5 N.E.3d 759, 762 (Ind. 2014)). We review such questions of law de novo. Id. (citing Temme v. State, 169 N.E.3d 857, 859 (Ind. 2021)).¹

[9] The statutory language relied upon by Smith, Ind. Code § 35-50-2-1.3(c), provides: “In imposing ․ consecutive sentences for felony convictions that are not crimes of violence (as defined in IC 35-50-1-2(a)) arising out of an episode of criminal conduct, in accordance with IC 35-50-1-2 ․ a court is required to use the appropriate advisory sentence in imposing a consecutive sentence ․”² In Miller v. State, this Court explained:

We observe that Ind. Code § 35-50-2-1.3(c), referring to the use of “the appropriate advisory sentence,” is merely a reference to a former version of Ind. Code § 35-50-1-2(c) which capped consecutive sentences for an episode of non-violent criminal conduct at “the advisory 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.” Ind. Code § 35-50-1-2(c) (2014) (emphasis added) (subsequently amended). In Robertson v. State, the Indiana Supreme Court clarified that Ind. Code § 35-50-2-1.3(c) “was not meant to impose additional restrictions on a trial court's ability to impose consecutive sentences” beyond those outlined in Ind. Code § 35-50-1-2(c). 871 N.E.2d 280, 285-286 (Ind. 2007). Effective July 1, 2015, Ind. Code § 35-50-1-2(c) was amended and no longer refers to an “advisory sentence.” See Pub. L. No. 238-2015, § 16 (eff. July 1, 2015). Instead, Ind. Code § 35-50-1-2(c) now provides that the consecutive sentence for an episode of non-violent criminal conduct “shall not exceed the period described in subsection (d).” See id. Ind. Code § 35-50-1-2(d) also does not refer to advisory sentences, and it does not limit the total of the consecutive terms of imprisonment to which a defendant is sentenced for felony convictions arising out of an episode of criminal conduct where the most serious crime for which the defendant is sentenced is murder. The language of Ind. Code § 35-50-2-1.3(c) to which Miller points appears to be rendered obsolete by the current wording of Ind. Code § 35-50-1-2(c). To the extent the language of Ind. Code § 35-50-2-1.3(c) was not rendered obsolete, we note that, in light of Robertson, the phrase “the appropriate advisory sentence” in Ind. Code § 35-50-2-1.3(c) is a reference to Ind. Code § 35-50-1-2(c) and (d) and that those sections do not prohibit the trial court's sentence here under Count III.

138 N.E.3d 314, 316-317 (Ind. Ct. App. 2019), trans. denied.

[10] As we did in Miller, we reject Smith's claim that the language in Ind. Code § 35-50-2-1.3(c) applies and prohibits the sentence imposed by the trial court. Rather, Ind. Code § 35-50-1-2(c) provides, in relevant part, “except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under [habitual offender statutes] to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the period described in subsection (d).” Ind. Code § 35-50-1-2(d) provides in relevant part,

the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed the following: ․ (2) If the most serious crime for which the defendant is sentenced is a Level 5 felony, the total of the consecutive terms of imprisonment may not exceed seven (7) years.

The most serious crime for which Smith was sentenced was a level 5 felony. Accordingly, the trial court's imposition of an aggregate seven-year sentence was within its statutory authority.

[11] For the foregoing reasons, we affirm the sentence imposed by the trial court.

[12] Affirmed.

FOOTNOTES

1.   Although Smith asserts that he is challenging his sentence pursuant to Ind. Appellate Rule 7(B), he makes no mention of the nature of the offense or character of the offender as would be required for such a claim. Rather he appears to assert that his sentence is not authorized by statute, and therefore we will review his sentence pursuant to the applicable standard of review.

2.   We note that Ind. Code § 35-50-1-2(b) provides “ ‘episode of criminal conduct’ means offenses or a connected series of offenses that are closely related in time, place, and circumstance.”

Brown, Judge.

Altice, C.J., and Tavitas, J., concur.