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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: CRAIG PERSINGER Marion, Indiana

FILED
Jul 13 2010, 9:13 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
LEWIS VASQUEZ, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

No. 27A02-1002-CR-135

APPEAL FROM THE GRANT CIRCUIT COURT The Honorable Mark Spitzer, Judge Cause No. 27C01-0103-CF-23

July 13, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Lewis Vasquez appeals his forty-year executed sentence following a guilty plea to two counts of criminal confinement and one count of burglary while armed with a deadly weapon, all Class B felonies. Vasquez raises one issue for our review: whether the trial court properly imposed consecutive maximum terms of imprisonment for the two counts of criminal confinement. Concluding the trial court did not properly sentence Vasquez, we reverse and remand. Facts and Procedural History On October 24, 2001, Vasquez entered into a plea agreement, whereby he provided the following account of his crimes to the trial court: Approximately about eight o'clock on the 13th of March of this year I entered a house by pushin [sic] in the back door to look for drugs and money and then while I was, after I got what I got, which was some marijuana and some pills, on my way out the door, the victim, Stephanie Collins and her daughter, had entered the house. I hid back in the back room when they came in. When I went to make a run for the door Stephanie was there and I freaked and I told her to freeze and then I took her into the room and put her on the ground and taped her arms and her mouth and her legs and then her little girl came in the room and I told her to have her little girl lay down beside her and then I had left the scene by takin' her car and her purse. Transcript, Vol. I at 9-10. Vasquez was armed with a gun during these events and held the gun to Collins during the encounter. Vasquez pleaded guilty to two counts of

criminal confinement and one count of burglary while armed with a deadly weapon, all Class B felonies. On December 20, 2001, the trial court held a sentencing hearing and sentenced Vasquez to twenty years on the burglary while armed with a deadly weapon count, and
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twenty years for each criminal confinement count, which were to run consecutively to each other, but concurrently with the burglary while armed with a deadly weapon count, for an aggregate sentence of forty years. After extensive procedural machinations,

Vasquez was granted permission to pursue this belated direct appeal of his sentence. Discussion and Decision Generally the trial court has discretion to impose consecutive sentences based upon the aggravating and mitigating circumstances. Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). This discretion is constrained, however, by Indiana Code section 35-50-1-2(c), which provides: The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, 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 shall not exceed 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. Vasquez contends his sentence is contrary to this statutory provision. An "episode of criminal conduct" is defined as "offenses or a connected series of offenses that are closely related in time, place, and circumstance." Ind. Code

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