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.
Armando Gonzalez, Jr., appeals the sentence he received following our remand for him to be resentenced. As Gonzalez has not demonstrated the sentence imposed by the trial court is "illegal," (Appellant's Br. at 4), we affirm.
Facts and Procedural History
When Gonzalez's case was before us in 2016, we explained:
Gonzalez v. State, No. 20A03-1504-CR-133, slip op. at *2 (Ind. Ct. App. Jan. 12, 2016) (footnotes omitted).
Gonzalez challenged the order that he serve three of his sentences consecutively, and the State cross-appealed the court's decision to reduce Gonzalez's convictions of robbery and criminal confinement to Class C felonies. Id. at *1. We did not address Gonazalez's issue. Instead, we remanded for resentencing after addressing the State's cross-appeal:
Id. at *3 (footnote omitted).
On remand, the trial court held a hearing, at which no new evidence was submitted, and resentenced Gonzalez for five Class B felony convictions. The court ordered Gonzalez to serve consecutive sentences of fifteen years for robbery, sixteen years for burglary, ten years for confinement, ten years for conspiracy to commit burglary, and ten years for possession of a firearm by a serious violent felon. Thus, Gonzalez's aggregate sentence was again 61 years.
Discussion and Decision
In his Summary of Argument, Gonzalez asserts
(Appellant's Br. at 6.)
First, contrary to Gonzalez's argument, our opinion did, in fact, give the trial court authority to modify the sentence lengths. We wrote that we were remanding "for resentencing with the convictions of robbery and criminal confinement as Class B felonies." Gonzalez, No. 20A03-1504-CR-133 at *3. If we had wanted the trial court to simply enter a new order that called those crimes Class B felonies, as Gonzalez asserts, we would have told the trial court to enter a new order without resentencing Gonzalez. See, e.g., O'Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001) (remanding for "a new sentencing order" because the original sentencing order did not explain the court's basis for the sentence).
Second, we disagree "there was no discernible reason for the trial court to increase the sentence on [robbery] by seven (7) years and the sentence on [confinement] by two years." (Appellant's Br. at 10.) The discernible reason is that Gonzalez's convictions are now of Class B, rather than Class C, felonies. When Gonzalez committed his crimes in 2013, the sentencing range for a Class C felony was two to eight years, with the advisory sentence being four years, Ind. Code § 35-50-2-6 (2005), and the sentencing range for a Class B felony was six to twenty years, with the advisory sentence being ten years. Ind. Code § 35-50-2-5 (2005). The trial court, based on its weighing of the aggravators and mitigators, had imposed maximum sentences of eight years when the convictions were entered as Class C felonies, and it therefore makes sense that, when resentencing Gonzalez for crimes that were one felony class higher, the trial court would wish to impose sentences that were at or above the advisory sentence. Cf. Lane v. State, 727 N.E.2d 454, 457 (Ind. Ct. App. 2000) (when appellate court remanded for correction of Lane's sentence, because trial court had imposed a fifty-year presumptive sentence after statutory change had made the presumptive sentence only forty years, trial court was required to enter the presumptive sentence when resentencing, even though presumptive was ten years shorter).
Finally, Indiana law provides that
Guffey v. State, 42 N.E.3d 152, 163 (Ind. Ct. App. 2015) (internal citations omitted), trans. denied. If trial courts have the flexibility on remand to increase sentences for remaining convictions when one conviction has been reversed, see also Hmurovic v. State, 43 N.E.3d 685, 689 (Ind. Ct. App. 2015) (remanding to vacate conviction and resentence on the remaining conviction), it would be illogical to hold trial courts did not have the same flexibility after we required the trial court to enter certain convictions as more serious felonies.
For all these reasons, we find no error in the trial court imposing a fifteen-year sentence for Gonzalez's conviction of Class B felony robbery and a ten-year sentence for Gonzalez's conviction of Class B felony criminal confinement. Accordingly, we affirm.
Najam, J., and Bailey, J., concur.