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901 N.E.2d 72

Gilliam v. State

Indiana Court of Appeals

Decided February 24, 2009

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Indiana Court of Appeals · decided 2009-02-24

Cited by 5 later decisions — most recently June 2017

5 state decisions

Relies on Smith v. State · Pittman v. State · Williamson v. State

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Decided 2009-02-24

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BARNES, Judge,

¶1concurring in result.

¶2I fully concur in the result reached by the majority. However, I do not believe it is accurate to analyze Gilliam's arguments regarding consecutive sentencing on the basis of whether his multiple convictions for failure to pay child support constituted a "single episode of criminal conduct." That is a term of art that does not absolutely prohibit the imposition of consecutive sentences; rather, it is a statutory limitation on consecutive sentencing. Namely, where a defendant's crimes amount to a non-violent "single episode of criminal conduct," the trial court cannot impose consecutive sentences greater than 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." Smith v. State, 770 N.E.2d 290, 293 (Ind.2002) (quoting Ind.Code § 85-50-1-2(c). In this case, if Gilliam's crimes had constituted a "single episode of criminal conduct," his total aggregate sentence could not have exceeded ten years, the advisory sentence for a Class B felony. See I.C. § 35-50-2-5.

¶3Instead of asking whether Gilliam's crimes constituted a "single episode of criminal conduct" under Section 35-50-1-2(c) and cases interpreting that phrase, I believe it is sufficient to say that consecutive sentences were permissible and justified here because of the existence of multiple victims, ie. three distinct family units, who were harmed by Gilliam's failure to pay child support. See Pittman v. State, 885 N.E.2d 1246, 1259 (Ind.2008). The existence of multiple victims likewise is a basis for straightforwardly rejecting any implied double jeopardy claim that Gilliam may be making. See Williamson v. State, 798 N.E.2d 450, 456 (Ind.Ct.App.2003), trams. demied. For these reasons, I concur in result.

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