Creekmore v. State, 43A03-0509-CR-466.

• Citation: 853 N.E.2d 523
• Decision Date: 07 September 2006
• Docket Number: No. 43A03-0509-CR-466.,43A03-0509-CR-466.
• Parties: Christopher CREEKMORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

853 N.E.2d 523

Christopher CREEKMORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 43A03-0509-CR-466.

Court of Appeals of Indiana.

September 7, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. Brad Voelz, Warsaw, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Christopher Creekmore pled guilty to thirteen counts of Check Deception,¹ all class A misdemeanors.² Creekmore now appeals,³ and presents the following restated issues:

1. Did the trial court abuse its discretion when it failed to identify mitigating circumstances when imposing maximum sentences?

2. Did the trial court abuse its discretion when it imposed consecutive sentences?

3. Did the trial court abuse its discretion when it imposed prosecutor's fees?

4. Is his sentence appropriate?

5. Did he knowingly, voluntarily, and intelligently waive his right to counsel?

We affirm in part and reverse in part and remand.

The facts favorable to the convictions are that between November 12, 2004 and June 23, 2005, Creekmore wrote thirteen checks, i.e., three checks to Leesburg Liquor, three checks to Liquid Assets, one check to Monteith Tire, four checks to Freedom Oil, and two checks to Cunningham Optical, from an account that he knew was either overdrawn or closed. After being charged with thirteen counts of check deception, Creekmore initially entered pleas of not guilty in all thirteen causes. On August 2 and 4, 2005, Creekmore requested appointment of counsel, which the trial court granted on August 9, 2005 during the initial hearing on all counts. At a later hearing, Creekmore requested the trial court vacate his pleas of not guilty and enter pleas of guilty, which the trial court did. Thereafter, the trial court, at Creekmore's urging, withdrew his request for appointment of counsel. On September 8, 2005, a sentencing hearing was held at which the trial court imposed: (1) court costs of $156 for each of the thirteen convictions, totaling $2,028; (2) restitution to each of the five businesses to which Creekmore wrote dishonored checks, totaling $2,178.95; (3) prosecutor's collection fees for each of the thirteen convictions, totaling $210; and (4) one-year terms of imprisonment for each of his five convictions of check deception, to be served consecutively.⁴ Creekmore now appeals.

1.

Creekmore contends the trial court abused its discretion with regard to each separate sentence because it failed to find any mitigating circumstances. Ind. Code Ann. § 35-50-3-2 (West, PREMISE through 2006 Public Laws approved and effective through March 15, 2006) governs sentences imposed upon convictions for class A misdemeanors, and states, in relevant part, "[a] person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year...." This statute, which was not amended by the General Assembly in the wake of Blakely, does not provide a presumptive or advisory sentence, but rather a maximum allowable sentence. A trial court, therefore, is not required to articulate and balance aggravating and mitigating circumstances before imposing sentence on a misdemeanor conviction. Cuyler v. State, 798 N.E.2d 243 (Ind.Ct. App.2003), trans. denied. Thus, with regard to the sentences for each of Creekmore's five misdemeanor convictions, the trial court did not abuse its discretion by failing to identify mitigating circumstances.

2.

Creekmore contends the trial court abused its discretion in ordering consecutive sentences. In order to address this contention, we must decide whether the new sentencing statutes apply. On April 25, 2005, the General Assembly responded to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by amending Indiana's sentencing statutes. Among others, the General Assembly amended Ind.Code Ann. § 35-38-1-7.1 (West, PREMISE through 2006 Public Laws approved and effective through March 15, 2006) by making the consideration of aggravating and mitigating circumstances discretionary rather than mandatory. Compare I.C. § 35-38-1-7.1(a), (b), amended by Public Law 71-2005, Sec. 3, emerg. eff. April 25, 2005 (current version) ("court may consider") with former I.C. § 35-38-1-7.1(a) ("court shall consider"). Further, "[u]nder the post-Blakely statutory scheme, a court may impose any sentence that is authorized by statute and permissible under the Indiana Constitution `regardless of the presence or absence of aggravating circumstances or mitigating circumstances.'" Weaver v. State, 845 N.E.2d 1066, 1070 (Ind.Ct.App.2006) (quoting I.C. § 35-38-1-7.1(d)), trans. denied.

The instant case presents a unique factual scenario we have not yet broached. That is, Creekmore was charged with and pled guilty to thirteen separate instances of check deception. Ten of those crimes were committed before the effective date of the amendments, and three were committed after. All thirteen convictions, however, were sentenced during one hearing, which occurred after the effective date of the amendments. Of the five convictions and sentences entered thereon that Creekmore now appeals, three were committed before, and two were committed after, the amendments' effective date. We must now decide whether application of the amended statutes to crimes committed before the amendments took effect violates the constitutional protections against ex post facto laws.⁵

A substantive change in a penal statute is an ex post facto law if applied retroactively, whereas a procedural change is not. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). An amendment is "`procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date,' if it `neither changes the elements of the crime nor enlarges its punishment.'" Weaver v. State, 845 N.E.2d at 1070 (quoting Ritchie v. State, 809 N.E.2d 258, 264 (Ind.2004), reh'g denied, cert. denied ___ U.S. ___, 126 S.Ct. 42, 163 L.Ed.2d 76 (Oct. 3, 2005)). After analyzing recent decisions from courts in other states whose legislatures amended sentencing statutes in the wake of Blakely,⁶ we concluded, "the Indiana sentencing amendments, which now permit a trial court to impose any sentence authorized by a statute or the constitution `regardless of the presence or absence of aggravating circumstances or mitigating circumstances' cannot be merely `procedural.'" Weaver v. State, 845 N.E.2d at 1071 (quoting I.C. § 35-38-1-7.1(d)) (emphasis in original). Accordingly, the application of the new sentencing statutes to crimes committed before the effective date of the amendments violates the prohibition against ex post facto laws.⁷ Where it is necessary, therefore, we will address separately the three crimes Creekmore committed before April 25, 2005 from the two he committed after that date.

Creekmore first contends the trial court abused its discretion because it ordered each of his five, one-year sentences to run consecutively when such was not mandatory. Both prior and subsequent to April 25, 2005, there were and are certain instances in which the trial court must order consecutive sentences. See, e.g., Ind.Code Ann. §§ 35-47-10-9 (West 2005) and 35-50-1-2 (West 2005). Where it is not mandatory, however, the trial court has wide discretion to impose consecutive sentences. Bryant v. State, 841 N.E.2d 1154 (Ind.2006). The trial court, therefore, does not per se abuse its discretion when, as here, it imposes consecutive sentences where such is not statutorily mandated.

Creekmore next contends the trial court abused its discretion by imposing consecutive sentences without identifying an aggravating circumstance. Here we must address separately the sentences imposed upon the three crimes Creekmore committed before April 25, 2005 from the two he committed thereafter.

We first address the sentences imposed upon the three crimes Creekmore committed prior to April 25, 2005. When the trial court exercises its discretionary authority under I.C. § 35-50-1-2 to impose consecutive sentences upon crimes committed prior to April 25, 2005, the trial court must enter, on the record, a statement that: (1) identifies all of the significant mitigating and aggravating circumstances; (2) states the specific reason why each circumstance is considered to be mitigating or aggravating; and (3) shows the court evaluated and balanced the mitigating circumstances against the aggravating circumstances in order to determine whether the aggravating circumstances offset the mitigating circumstances. Diaz v. State, 839 N.E.2d 1277 (Ind.Ct.App. 2005). A single aggravating circumstance may support the imposition of consecutive sentences. Smylie v. State, 823 N.E.2d 679 (Ind.2005), cert. denied. When the trial court finds, however, the aggravating and mitigating circumstances are in equipoise, Indiana law provides that a defendant's sentences must run concurrently. Id.

Creekmore initially asserts the trial court failed to identify an aggravating circumstance and that, in its absence, the imposition of consecutive sentences was an abuse of discretion. Contrary to Creekmore's assertion, the trial court clearly identified as aggravating that "[in] these cases[, there] was a course of conduct over six months. There are five or six different victims. It was repeated on several of them." Appellant's Appendix at 268. We decline to adopt Creekmore's "magic words" approach in determining whether the trial court identified a sufficient aggravating factor in support of the imposition of consecutive sentences, and reiterate that a single aggravating circumstance is sufficient to support the imposition of consecutive sentences. Diaz v. State, 839 N.E.2d 1277.

The trial court found no mitigating circumstances. Creekmore contends the trial court abused its discretion in failing to identify as...