author: BARTEAU, Senior Judge.

text:
    Michael BOWSER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A03-1208-CR-361.
    Court of Appeals of Indiana.
    March 14, 2013.

      Mark S. Lenyo, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Michael Bowser appeals his two convictions of battery by means of a deadly weapon, both Class C felonies. Ind. Code § 35-42-2-1 (2008). We affirm.

ISSUES

Bowser raises two issues, which we restate as:

I. Whether the trial court abused its discretion in denying his motion for severance.
II. Whether the evidence is sufficient to sustain his convictions.

FACTS AND PROCEDURAL HISTORY

Bowser and Jennifer Kaminski dated for several months. In March 2009, Kaminski ended her relationship with Bowser and began dating Andrew Bolinger. Bowser “was not happy” that Kaminski was seeing Bolinger. Tr. p. 130. On the evening of March 13, 2009, Kaminski met Bowser and told him to leave her alone. She then went to Bolinger’s house. Kaminski received several threatening texts from Bow-ser during her visit at Bolinger’s house.

When Kaminski left to drive home, Bol-inger and his friend, Anthony Badzinski, followed her in Badzinski’s car to make sure she arrived safely. Bolinger and Badzinski stopped following Kaminski when she was almost home. Shortly before arriving home, Kaminski saw Bow-ser’s car, so she called Bolinger and Bad-zinski.

Kaminski parked in the driveway of a business, and Bowser parked there too. He got out of his car, approached Kamin-ski’s car, and talked to Kaminski. Bowser was angry. Next, Bolinger and Badzinski pulled up, and Bolinger got out of Badzin-ski’s car. Bowser ran back to his car and drove away at a high rate of speed.

Bolinger returned to Badzinski’s car, and they began backing up to exit the driveway. However, Bolinger saw Bowser turn around down the road and head back in their direction at a high rate of speed, so Bolinger told Badzinski to stop backing up. Instead of driving past them, Bowser swerved out of his lane, drove across the oncoming lane, and struck the side of Bad-zinski’s car as it sat at the end of the driveway. Bowser did not slow down prior to striking Badzinski’s car and hit it squarely in the middle. Bolinger sustained a broken femur and head injuries from the collision. Badzinski was in a coma for a month, had a broken pelvis, and must wear a brace for the rest of his life.

The State charged Bowser with two counts of battery resulting in serious bodily injury, both Class C felonies; two counts of battery by means of a deadly weapon, both Class C felonies; two counts of criminal recklessness by means of a deadly weapon resulting in serious bodily injury, both Class C felonies; and two counts of criminal recklessness resulting in serious bodily injury, both Class D felonies. Prior to trial, Bowser filed a motion for severance, in which he stated that he should only be required to defend against “two counts of the indictment, a count for each alleged victim, the counts to be consistent with one theory of prosecution.” Appellant’s App. p. 19. The trial court denied Bowser’s motion after a hearing. At trial, the jury determined that Bowser was guilty as charged. The court, citing double jeopardy concerns, entered a judgment of conviction only as to the two ver-diets for battery by a deadly weapon and sentenced him accordingly.

This appeal followed.

DISCUSSION AND DECISION

I. MOTION FOR SEVERANCE

Bowser claims that the trial court should have severed the battery charges from the criminal recklessness charges.

The statute that governs joinder of offenses provides, in relevant part:

Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Ind.Code § 35-34-l-9(a) (1981). Here, all eight of the charges against Bowser arose out of the same conduct, specifically, Bow-ser’s act of ramming Badzinski’s car with his own car. Thus, joinder of the charges did not violate Indiana Code section 35-34-1-9.

Pursuant to the statute that governs severance of offenses, “Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.” Ind.Code § 35-34-l-ll(a) (1981). In this case, the eight charges were joined because they were based on the same conduct, not solely because they were of the same or similar character. Consequently, Bowser was not entitled to severance as a matter of right.

The General Assembly has determined that even when a defendant is not entitled to severance as a matter of right:

the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

Id. We review the trial court’s refusal to sever charges under these circumstances for an abuse of discretion. Craig v. State, 730 N.E.2d 1262, 1265 (Ind.2000).

Here, there were a number of charged offenses but the evidence was not complex, consisting of testimony from five witnesses and twenty-one exhibits, primarily photographs. One of the testifying police officers described in detail his techniques for accident reconstruction, but scientific or specialized evidence does not necessarily require severance. See Kahlenbeck v. State, 719 N.E.2d 1213, 1216 (Ind.1999) (determining that the trial court properly denied the defendant’s motion for severance because the evidence, which included a ballistics analysis, was not complex). Finally, it is reasonable to conclude that the jury was able to distinguish the evidence and apply the law intelligently because the charged offenses differed only in levels of mental culpability, whether a deadly weapon was used, and the level of harm inflicted upon the victims. See Ind.Code §§ 35-42-2-1; 35-42-2-2 (2006). The jury instructions clearly defined each offense, and the court instructed the jury to “consider each count independently based on the law and the evidence relating to that count.” Tr. p. 344. Under these circumstances, the trial court did not abuse its discretion by denying Bowser’s motion for severance.

II. SUFFICIENCY OF THE EVIDENCE

Bowser argues that the State failed to prove that he knowingly or intentionally battered Bolinger and Badzinski. Instead, he claims that the collision was an accident.

When an appellant challenges the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State, 942 N.E.2d 809, 811 (Ind.2011). We consider only the probative evidence and reasonable inferences supporting the verdict. Id. We will affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

In order to convict Bowser of battery by means of a deadly weapon, the State was required to prove beyond a reasonable doubt that (1) Bowser (2) knowingly or intentionally (3) touched another person (4) in a rude, insolent, or angry manner (5) by means of a deadly weapon. Ind. Code § 35-42-2-1. The mens rea element for a criminal offense is almost inevitably, absent a defendant’s confession or admission, a matter of circumstantial proof. Hampton v. State, 961 N.E.2d 480, 487 (Ind.2012).

Here, Bowser was angry that Ka-minski had ended their relationship and was seeing Bolinger. Bowser was talking with Kaminski in an angry manner when Bolinger and Badzinski drove up, interrupting the conversation. Bowser initially drove away, but he drove back at a high rate of speed and hit the side of Badzin-ski’s car, squarely in the middle, without slowing down or applying his brakes. Badzinski’s car was not on the road and was stationary. This is ample evidence from which a reasonable jury could have determined beyond a reasonable doubt that Bowser knowingly or intentionally hit Bolinger and Badzinski’s car with his car. Bowser’s assertion that he could have hit them by accident is a request to reweigh the evidence, which we cannot do.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.


source: Caselaw Access Project

author: DARDEN, Senior Judge.

license: Public Domain

text:
    Matthew BRYANT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 03A04-1205-CR-283.
    Court of Appeals of Indiana.
    March 15, 2013.

      Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Matthew Bryant appeals his conviction and sentence for aggravated battery, a Class B felony, and for being a habitual offender. We affirm.

ISSUES

Bryant raises four issues, which we expand and restate as:

I. Whether Bryant was deprived of his right to a speedy trial under the federal and state constitutions.
II. Whether the trial court abused its discretion in admitting evidence.
III. Whether the evidence is sufficient to sustain Bryant’s conviction for aggravated battery.
IV. Whether the trial court abused its discretion in sentencing Bryant.
V. Whether Bryant’s sentence is appropriate.

FACTS AND PROCEDURAL HISTORY

On June 4, 2011, Bryant was incarcerated on unrelated charges in the Bartholomew County Jail. As the inmates ate lunch in their cellblock, Bryant perceived that fellow inmate Roosevelt Crowdus was eating spaghetti too loudly. Bryant told him, “[LJet’s go to the room,” which Crowdus interpreted as a challenge to go fight in Bryant’s cell. Tr. p. 199. Crowdus followed Bryant to the cell. Although disputed, Crowdus testified that Bryant threw the first punch but missed. The combatants exchanged punches with their fists and then fell to the floor struggling with one another. Bryant put Crowdus in a headlock, but Crowdus grabbed Bryant’s groin. At that point, they broke apart from one another.

Bryant told Crowdus that Crowdus “don’t got [sic] enough heart for [Bryant],” which Crowdus took to mean that Bryant did not think Crowdus could beat him. Id. at 202. Crowdus offered to shake hands to establish a truce, but Bryant rejected the offer, stating, “I don’t shake up,” and “Aryans don’t shake up.” Id. at 203. The two resumed fist-fighting, and at some point Crowdus put his hands around Bryant’s neck. Later in the altercation, while Crowdus was holding onto the top bunk, Bryant grabbed a pencil and swung it at Crowdus, stabbing him in the left ear. Crowdus fell to the floor, and Bryant walked out of the cell. As Bryant exited the cell, he told an inmate, “[I]f you want to see a kill, that’s a kill.” Id. at 281. Crowdus subsequently obtained assistance from jail staff, who summoned an ambulance. Despite undergoing surgery, Crow-dus permanently lost all hearing in his left ear.

The State charged Bryant with the instant offense, aggravated battery, and with being an habitual offender. A jury found Bryant guilty of aggravated battery but deadlocked on the habitual offender determination. The trial court declared a mistrial and ordered that Bryant be retried on the habitual offender enhancement. A jury determined at a subsequent trial that Bryant was an habitual offender. The court sentenced Bryant to an aggregate term of fifty years, and this appeal followed.

DISCUSSION AND DECISION

I. RIGHT TO A SPEEDY TRIAL

Bryant filed a motion for speedy trial on October 26, 2011, and the court released him on his own recognizance on December 13, 2011, while trial was pending. Bryant argues that the court nonetheless infringed upon his right to a speedy trial despite being released in this case because he remained incarcerated on other charges.

The Sixth Amendment to the Constitution of the United States and article one, section twelve of the Indiana Constitution both protect the right of an accused to a speedy trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind.2012). This right is a fundamental principle of constitutional law and has been “zealously guarded” by our courts. Id. The provisions of Indiana Criminal Rule 4 implement a defendant’s right to a speedy trial. Otte v. State, 967 N.E.2d 540, 545 (Ind.Ct.App.2012), trans. denied. That rule provides, in relevant part:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

Ind.Crim. Rule 4(B). It is well established that Criminal Rule 4 places an affirmative duty on the State to bring a defendant to trial. Cundiff, 967 N.E.2d at 1028. Bryant’s speedy trial claim presents a question of law, which we review de novo. Id. at 1027.

Here, the relevant facts are not in dispute. The trial court held an initial hearing in the instant case on August 29, 2011, and scheduled a jury trial for February 7, 2012. Bryant filed a speedy trial request on October 26, 2011. That is the date upon which the seventy-day period set forth in Indiana Criminal Rule 4(B) began to run.

On November 29, 2011, the State filed a motion requesting the trial court to release Bryant on his own recognizance in this case, noting that he would remain incarcerated due to another pending case. The trial court held a hearing on the State’s motion on December 13, 2011, within the seventy-day deadline. On the same day, the trial court granted the State’s motion and ordered Bryant released upon his own recognizance in this case. Bryant remained incarcerated due to another case until his trial in this case commenced on February 7, 2012. That date was beyond the seventy-day period that began running on October 26, 2011.

We find guidance in our Supreme Court’s opinion in Cundiff. In that case, the Court specifically “address[ed] the question of whether an incarcerated defendant has the right to be tried within seventy days under Criminal Rule 4(B) when he is being held for an unrelated offense and not on the charges for which speedy trial is demanded.” Cundiff, 967 N.E.2d at 1028-29. Cundiff was arrested for driving while intoxicated and other charges, and he was released on bond after a brief period of incarceration. However, he was soon incarcerated again on a separate probation revocation matter. Next, Cundiff filed a motion for speedy trial in the drunken driving ease, and he subsequently filed a motion for discharge. The trial court denied his motion for discharge, and our Supreme Court affirmed. The Court reviewed its precedent and concluded: “[F]or Rule 4(B) to apply, the defendant must be incarcerated on the charge for which he seeks a speedy trial, and as long as that requirement is met, the availability of Rule 4(B) is not affected if the defendant is also incarcerated on other grounds.” Id. at 1031. Thus, Cundiffs right under Criminal Rule 4(B) was not violated because he was not incarcerated on the charges for which he sought a speedy trial.

In this case, applying the reasoning in Cundiff, we find that the trial court did not violate Criminal Rule 4(B). Bryant was released on his own recognizance in this case within seventy days of requesting a speedy trial. Bryant argues that this interpretation of Criminal Rule 4 is too narrow and undermines a defendant’s right to a speedy trial. Specifically, he believes the State will have no incentive to try a defendant quickly if it knows the defendant can be released in one case because the defendant will still remain incarcerated for another case. We acknowledge Bryant’s argument, but we cannot reject our Supreme Court’s clear holding in Cun-dffl.

Bryant also claims that even if the trial court did not violate the terms of Criminal Rule 4, his right to a speedy trial has been violated because the court did not comply with “the spirit” of that rule. Appellant’s Br. p. 23. He cites State v. Roberts, 171 Ind.App. 537, 358 N.E.2d 181 (1976), in support of his claim, but that case is distinguishable. There, a juvenile court waived jurisdiction over Roberts on March 19, 1975, and ordered that he be transferred to the custody of the sheriff to stand trial as an adult for the crime of escape. However, the State did not file an information until May 8,1975. Upon review, a panel of this Court noted that Roberts’ detention from March 19 through May 8 was not the result of an arrest or caused by a felony charge. Thus, the trial court should have applied procedural safeguards that would have protected Roberts’ right to a speedy trial. The Court determined that Criminal Rule 4(B) applied to Roberts’ detention and that the State’s failure to timely charge and try Roberts violated the spirit of the rule.

In this case, there is no dispute that Bryant’s initial hearing on the charge was held in a timely manner. Consequently, it cannot be said that Bryant experienced an unreasonable delay, as Roberts did, and Roberts is not controlling. We conclude that the court did not violate Bryant’s right to a speedy trial.

II. ADMISSION OF EVIDENCE

Bryant argues that the trial court erred by allowing a detective to tell the jury what Crowdus said at the hospital and by admitting a recording of Bryant’s telephone conversation with a friend. The admission or exclusion of evidence rests within the sound discretion of the court, and we review for an abuse of discretion. Conley v. State, 972 N.E.2d 864, 871 (Ind.2012). An abuse of discretion occurs when the court’s decision is clearly against the logic and effect of the facts and circumstances before it. Id.

A. ADMISSION OF CROWDUS’ STATEMENT AT THE HOSPITAL

Detective Christopher Roberts was dispatched to investigate Crowdus’ stabbing after jail staff reported it. He went to the jail and spoke with the staff, and then he followed the ambulance that took Crowdus to the hospital. Roberts interviewed Crowdus before he began receiving treatment. At trial, the following colloquy occurred:

[STATE:] What, if anything, did Roosevelt tell you in terms of what occurred during the assault?
[ROBERTS:] He told me that he was invited to the cell, where they started a fight. He said that he was not the first one that threw a punch, but the Defendant ..., [sic] Excuse me.
[BRYANT:] I’m going to object to this questioning. Mr. Crowdus has already testified as to what happened. This is hearsay.
[THE COURT:] Overruled.
[ROBERTS:] Roosevelt Crowdus told me that he was invited into the cell where they commenced to fight and it was over what he believed was that he was eating too loudly. And when he got into the cell, he said that the Defendant threw the first punch, which he missed, and he retaliated with a strike to the face.

Tr. p. 341.

Bryant contends that Roberts’ account of what Crowdus told him is inadmissible hearsay. We agree. Hearsay is a statement, other than one made by the declar-ant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801. Hearsay is not admissible except as provided by the Indiana Rules of Evidence or by law. Ind. Evidence Rule 802. Roberts’ description of Crowdus’ statement is an out-of-court statement, and it reasonably could be construed to have been offered to prove the truth of Crowdus’ statement.

The State argues that Roberts’ testimony about Crowdus’ statement is not hearsay because the statement was “one of identification of a person made shortly after perceiving a person,” pursuant to Indiana Evidence Rule 801(d)(1)(C). We disagree. There was no dispute at trial that Bryant stabbed Crowdus; thus, Crowdus’ statement was one of explanation rather than identification.

The State also argues that Roberts’ account of Crowdus’ statement was admissible as an excited utterance. Indiana Evidence Rule 808(2) allows the admission of “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Here, Crowdus returned to his cell after the stabbing and lay in his bunk until another inmate summoned jail staff. The record does not disclose how long Crowdus was in his cell until staff arrived. The jail officers requested assistance from their supervisor. After an undisclosed period of time, the supervisor went to Crowdus’ cell, reviewed the situation, and summoned paramedics. The record does not reflect how long it took the paramedics to arrive at the jail. The paramedics took Crowdus to the hospital, and the record does not indicate how long the trip to the hospital took. Thus, the State has failed to establish how much time elapsed between the stabbing and Crowdus’ conversation with Roberts, which is essential to determining whether a witness was still under the stress of the event or condition. Furthermore, at the hospital Crowdus talked to Roberts in a “low and slow” tone of voice rather than in an excited manner. Tr. p. 339. We cannot conclude that Crowdus was still under the stress of the stabbing when Roberts interviewed him, so Crowdus’ statement was not an excited utterance and should not have been admitted.

Generally, errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.2012). The improper admission is harmless error if the conviction is supported by substantial independent evidence of guilt, satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction. Id.

Here, Crowdus and Bryant both testified at trial, and there is no dispute that Bryant stabbed Crowdus in the ear. Furthermore, Crowdus’ statement to Roberts was, for the most part, cumulative of Crowdus’ testimony. We cannot conclude that there is a substantial likelihood that Roberts’ hearsay testimony contributed to the conviction. Consequently, admission of the testimony was harmless error.

B. BRYANT’S TELEPHONE CALL

Bryant remained incarcerated in the Bartholomew County Jail after his fight with Crowdus. When an inmate places a telephone call, an automatic message informs the inmate at the beginning of the call that the call will be recorded. On July 4, 2011, the jail recorded a phone call that Bryant initiated to a friend. A redacted portion of the recording was admitted into evidence at trial. The portion provides, in relevant part:

Male: I heard there is some f* * * * *g dud [sic] that f* * * * *g in there that f* * * * *g like beat you up or something that’s what somebody was telling me that.
Male: Huh? Beat me up?
Male: Yeah there was some ... yeah.
Male: No.
Male: I — I told the girl I was like, I told that chick I was like man, I said, I don’t know I said I’ve known Matt for awhile, I said I’ve never seen anybody beat up Matt, (laughs)
Male: Who — who was, which was the chick?
Male: Uh, some girl at my work. I don’t know her name, but she uh, she dates f* * * * *g Matt Brantley.
Male: Oh, black dude, Matt Brantley. No I beat up ...
Male: Yeah.
Male: [A] black dude. I-I mean I beat this mother f* * * * *g rUg Up decent. I mean I stabbed him in the ear with a pencil and everything. I f* * * *d him up.
Male: Yeah, see I heard that too and then that’s what she was telling me she’s like yeah she’s like I guess a couple of them f* * * * *g black dudes got a hold of him or something and ...
Male: Man no ...
Male: [G]ot back at him or something.
Male: I ...
Male: I was just like oh, I don’t know about that.
Male: Where do you work at?
Male: Uh, The Garage downtown.
Male: Oh, The Garage. Oh, no, who ...
Male: Yeah.
Male: [A]in’t none of the dudes, there ain’t no black dude ... I called them all in the room once and told them I said if we’re going to get it, let’s get it. And Dirk Neal ...
Male: Yeah.
Male: [H]e — he was like f* *k it, let’s get it mother f* * * * *s. And — and
Male: Yeah, I mean that’s what I told her I said man ... I’ve known Matt forever and I said I ain’t never ... heard not nobody [sic] beating him up. (laughs)
Male: Let, about ...
Male: Are you there?
Male: But yeah ... they [sic], let her know I am 7 and 0 in the county jail. So ...
Male: What’s that?
Male: Tell her that I am 7 and 0, there is [sic] 7 wins and 0 loses [sic] so ...
Male: (laughs)
Male: ... I’ve been running through mother f* * * * *s left and right. I mean ...
Male: Oh, I’m sure you have, (laughs)
Male: ... [T]hey had to carry old boy out to the mother f* * * * *g [sic], on a stretcher man. So ...
Male: (laughs)

State’s Ex. 11 (recording), Defendant’s Ex. A pp. 9-11 (transcript of recording).

Bryant argues that the recording contains inadmissible hearsay, specifically statements by Bryant’s friend and a woman with whom Bryant’s friend had spoken. In Williams v. State, 669 N.E.2d 956, 958 (Ind.1996), Williams contended that the trial court should not have admitted recordings of Williams’ conversations with a confidential informant, asserting that the informant’s statements were hearsay. Our Supreme Court determined that the informant’s statements were largely intended to prompt Williams to speak and were not admitted for the truth of the matter asserted. Consequently, the statements were not hearsay.

In this case, as in Williams, the statements by Bryant’s friend, including his account of what a female co-worker told him, served to prompt Bryant to speak. Bryant’s statements constituted the evi-dentiary weight of the conversation. Thus, we conclude that the recording was not inadmissible hearsay.

Next, Bryant claims that even if the recording was not hearsay, the trial court should not have admitted it because it was unfairly prejudicial. Indiana Evidence Rule 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” The balancing of the probative value against the danger of unfair prejudice must be determined with reference to the issue to be proved by the evidence. Brim v. State, 624 N.E.2d 27, 35 (Ind.Ct.App.1993), trans. denied. Evaluation of whether the probative value of an evidentiary matter is substantially outweighed by the danger of unfair prejudice is a discretionary task best performed by the trial court. Baer v. State, 866 N.E.2d 752, 763 (Ind.2007).

Bryant asserts that the recording painted him “as a racist with a criminal history, violent propensity, and penchant for fighting in jail.” Appellant’s Br. p. 35. However, the key issue at trial was whether Bryant stabbed Crowdus in self defense. Bryant’s statement in the recording that he “beat [Crowdus] up decent” and stabbed him in the ear helped to establish that Bryant was a willing participant in the fight. Furthermore, Bryant initiated the call and was aware that it was being recorded, so there is no question of surprise or coercion. In addition, other testimony at trial established that Bryant referred to himself as an Aryan, so the jury was already made aware that he may have had racist beliefs. Balancing the issue to be proved by the recording, specifically Bryant’s intent, against the danger of unfair prejudice, we cannot say that admission of the recording violated Indiana Evidence Rule 403. See Baer, 866 N.E.2d at 763 (determining that admission of a recording of Baer’s jailhouse phone call was not unduly prejudicial because Baer was pursuing a defense of guilty but mentally ill, and the recording was highly probative to establish whether he was faking mental illness).

Finally, Bryant argues that the recording improperly informed the jury of prior, uncharged misconduct. Indiana Evidence Rule 404(B) provides, in relevant part: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” Our Supreme Court has stated as follows with respect to the intent exception:

The intent exception in Evid. R. 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State’s witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s intent at the time of the charged offense. The trial court must then determine whether to admit or exclude such evidence depending upon whether “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993) (quoting Ind. Evidence Rule 403).

In this case, the State alleged that Bryant committed the crime of aggravated battery. Bryant presented evidence of a contrary intent at trial, specifically that he acted in self defense. He sought to establish that Crowdus violated jail rules by entering Bryant’s cell. Next, Bryant extensively cross-examined Crowdus, and Crowdus admitted that he could have asked the guards for help rather than going into Bryant’s cell to fight. Crowdus also admitted during cross-examination that he struck Bryant during the fight. Thus, Bryant was attempting to prove that Crowdus was the initial aggressor and he was merely defending himself. Given Bryant’s claim of self defense, the court properly allowed the State to present evidence of prior acts, specifically Bryant’s prior jail fights, to prove his intent. See Evans v. State, 727 N.E.2d 1072, 1080 (Ind.2000) (determining that the trial court’s admission of Evans’ act of strangulation was admissible under Rule 404(b) in Evans’ attempted murder prosecution because Evans had claimed self defense, and Evans’ act of strangulation rebutted his claim that the attempted murder victim was the aggressor). Furthermore, we have already determined that Evidence Rule 403 does not bar admission of the recording. For these reasons, the trial court did not abuse its discretion by admitting the recording.

III. SUFFICIENCY OF THE EVIDENCE

Bryant argues there is insuffi-' cient evidence to support his aggravated battery conviction because he believes the State failed to rebut his claim of self defense. When a claim of self defense is raised and finds support in the evidence, the State has the burden of negating at least one of the necessary elements beyond a reasonable doubt. Wilson v. State, 770 N.E.2d 799, 800 (Ind.2002). The standard of review for a challenge to the sufficiency of the evidence to rebut a claim of self defense is the same as the standard for any sufficiency of the evidence claim. Id. at 801. We do not reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State, 942 N.E.2d 809, 811 (Ind.2011). We consider only the probative evidence and reasonable inferences drawn from the evidence that support the verdict. Id. If a defendant is convicted despite a claim of self defense, we reverse only if no reasonable person could say that self defense was negated by the State beyond a reasonable doubt. Wilson, 770 N.E.2d at 800-01.

A valid claim of defense of oneself or another person is legal justification for an otherwise criminal act. Ind. Code § 35-41-3-2 (2006). To prevail on a claim of self defense, the defendant must present evidence that he: (1) was in a place he had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. Tharpe v. State, 955 N.E.2d 836, 844 (Ind.Ct.App.2011), trans. denied. A person is not justified in using force if the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action. Ind.Code § 35-41-3-2(e).

In this case, although some portions of the evidence are disputed, Bryant challenged Crowdus to fight in his cell. According to Crowdus, once they were in the cell Bryant threw the first punch but missed, and Crowdus then struck Bryant with his fist. It is undisputed that Bryant also struck Crowdus several times with his fist and put him in a headlock. It is further undisputed that when the combatants broke away from each other, Crowdus offered a truce. However, Bryant rejected the offer, and the two continued fist-fighting. Crowdus never used or reached for a weapon, but Bryant grabbed a pencil and stabbed Crowdus with it, resulting in permanent injury to Crowdus’ left ear. This evidence reasonably establishes that Bryant provoked the fight, or at least participated willingly in it, which undermines his claim of self defense. Furthermore, when Crowdus communicated his intent to withdraw from combat, Bryant rejected it and continued to fight. Consequently, the jury could have reasonably concluded that under the circumstances herein, Bryant was not justified in using the pencil as a weapon to stab Crowdus in the ear, causing permanent damage. See Ind.Code § 35-41-3-2(e); Huls v. State, 971 N.E.2d 739, 747 (Ind.Ct.App.2012) (determining that the State carried its burden of negating Huls’ claim of self defense when Huls continued to shoot at the victims even after they asked him to stop shooting and said they were leaving), trans. denied. Bryant argues that he continued to fight because Crowdus was preventing him from leaving the cell or seeking assistance from the guards, but this is a request for us to reweigh the evidence, which we cannot do. We conclude that the State put forth sufficient evidence to negate Bryant’s claim of self defense beyond a reasonable doubt.

IV. SENTENCING — ABUSE OF DISCRETION

Bryant contends that the trial court overlooked mitigating factors he submitted at sentencing. Subject to the review and revision power discussed below, sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (2007). One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Id. Other examples include entering a sentencing statement that explains reasons for imposing a sentence — including a finding of aggravating and mitigating factors if any-but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Id. at 490-91.

Bryant claims the trial court should have determined that his difficult childhood and his mental illness were mitigating factors. However, Bryant did not cite those factors at sentencing. Instead, Bryant’s entire argument at sentencing was as follows:

We’d just ask the, the Court to consider ■the pre-sentence investigation report and the background of the Defendant as well as the fact that he’s currently serving a prolonged sentence in prison. So we’d ask the Court to review those facts and sentence him accordingly.

Tr. p. 701. Although the trial court is obligated to review the presentence investigation report and consider all aggravating and mitigating circumstances presented in that document, the court is not required to comb through it and present mitigating arguments on behalf of the defendant when the defendant fails to act. Failure to present a mitigating circumstance to the trial court waives consideration of the circumstance on appeal. McKinney v. State, 873 N.E.2d 630, 646 (Ind.Ct.App.2007), trans. denied. Consequently, Bryant’s claims with respect to mitigating factors are waived.

Waiver notwithstanding, our Supreme Court has consistently held that evidence of a difficult childhood warrants little, if any, mitigating weight. Ritchie v. State, 875 N.E.2d 706, 725 (Ind.2007). Here, the court noted that Bryant had a difficult childhood, but it was not a mitigating circumstance because “a number of attempts have been made in the juvenile area to try to provide services to you. That was not successful.” Tr. p. 704. We find no abuse of discretion with respect to Bryant’s childhood.

Turning to Bryant’s mental illness, there are four factors that bear on the weight to be given to mental illness at sentencing:

(1) the extent of the defendant’s inability to control his or her behavior due to the disorder or impairment; (2) overall limitations on functioning; (3) the duration of the mental illness; and (4) the extent of any nexus between the disorder or impairment and the commission of the crime.

Weeks v. State, 697 N.E.2d 28, 30 (Ind.1998). Here, the presentence investigation report indicated that Bryant had received counseling for mental illnesses, including bipolar disorder and substance abuse, since 1995. However, the report provides no evidence that relates to the other three factors set forth in Weeks. Consequently, even if Bryant had raised his mental illness as a mitigating factor, based on the evidence here the trial court would not have been obligated to find that it was a mitigating circumstance. The trial court did not abuse its discretion by failing to find that Bryant’s mental illness is a mitigating factor.

V. SENTENCING— APPROPRIATENESS OF SENTENCE

Although a trial court may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.2007) (citing Anglemyer, 868 N.E.2d at 491). The defendant has the burden of persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006)). In making this determination, we may look to any factors appearing in the record. Calvert v. State, 930 N.E.2d 633, 643 (Ind.Ct.App.2010).

We first look to the statutory range established for the class of the offense. The advisory sentence for a Class B felony is ten years, with a minimum of six years and a maximum of twenty years. Ind. Code § 35-50-2-5 (2005). In addition, the habitual offender determination carried an enhancement of ten to thirty years in this case. Ind.Code § 35-50-2-8 (2005). Bryant received fifty years, the maximum possible sentence.

We next look to the nature of the offense and the character of the offender. Our review here of the nature of the offense shows that Bryant provoked a fight with a fellow inmate over a trivial matter. Crowdus testified that Bryant threw the first punch, refused to stop fighting when Crowdus offered a truce, and subsequently permanently destroyed Crowdus’ hearing in one ear. It is particularly troubling that Bryant committed this crime while he was already incarcerated on other serious felony charges, because his actions displayed contempt for the law and a willingness to commit serious crimes even when incarcerated. In addition, Bryant told another inmate his attack on Crowdus was a “kill” and subsequently bragged about the fight in a phone call with a friend.

Our review here of the character of the offender shows that Bryant has a lengthy criminal history. As a juvenile, he committed several acts that would have constituted battery had they been committed by an adult. As an adult, Bryant has been convicted of ten felonies, including burglary, strangulation, invasion of privacy, and possession of methamphetamine. At the time Bryant committed his current crime, he was already incarcerated on very serious felony charges including Class A felony battery, Class C felony battery, two counts of criminal confinement, and two counts of intimidation. He was subsequently convicted of those charges and sentenced to ninety-three years prior to sentencing in the current case. In addition, Bryant has violated the terms and conditions of his probation on multiple occasions. In summary, Bryant has a lengthy history of violent crimes, and pri- or, shorter sentences and terms of probation did not cause him to alter his behavior. To the contrary, over the course of his life his crimes have escalated and become more and more serious. Bryant also has a history of using methamphetamine and marijuana.

Bryant notes that he had a troubled childhood because he witnessed domestic abuse. He also asserts that he has a history of mental illness. Finally, he has sporadic employment when he is not incarcerated, and he has two daughters. In light of the vicious nature of the crime and Bryant’s demonstrated unwillingness to reform, none of these circumstances render his sentence inappropriate. Consequently, we decline to revise his sentence.

CONCLUSION

For the reasons stated above, we affirm the judgment of the court.

Affirmed.

ROBB, C.J., and BAKER, J., concur.


author: RUSH, Justice.

text:
    K.W., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 49S02-1301-JV-20.
    Supreme Court of Indiana.
    Feb. 22, 2013.

      Joel M. Schumm, Indianapolis, IN, Ruth Ann Johnson, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew A. Kobe, Monika Prekopa Talbot, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1201-JV-9

RUSH, Justice.

A school liaison officer intervened in a hallway scuffle between K.W. and another student. K.W. turned away from the officer’s effort to handcuff him, and was adjudicated delinquent for resisting law enforcement. We granted transfer, and now reverse because there is insufficient evidence that K.W. acted “forcibly,” as the offense of resisting law enforcement requires.

We also invite the Legislature to consider whether to bring school-resource officers — police officers privately employed by schools for school security and disciplinary purposes — within the ambit of the resisting-law-enforcement statute. The current statute applies to law-enforcement officers only when they are engaged in. law-enforcement duties; which does not always apply to the different, though important, duties of a school officer. A common-law resolution of that question would risk unintended consequences, but a narrower legislative approach may be appropriate.

Facts and Procedural History

On August 30, 2011, K.W. and another student were “facing off’ in a school hallway, with their fists raised. Tr. 3. A teacher promptly intervened, detaining K.W. until a school-liaison officer could arrive. Id.

The liaison officer who arrived, Eugene Smith, was privately employed by the school, but he was also a sergeant with the Indianapolis Metropolitan Police Department and wearing his IMPD uniform. Tr. 2-3 & State’s Exh. 1 (surveillance video of the incident). Sergeant Smith attempted to handcuff K.W. “for [K.W.’s] safety,” as was his “normal procedure.” Tr. 3.

The facts most favorable to the judgment are that K.W. turned to walk away, pulling against Sergeant Smith’s grasp on his wrist. State’s Exh. 1; accord, Tr. 3-4 (“[K.W.] began to resist and pull away.... He turned, pulled away[.]”). At that point, Sergeant Smith immediately used a “straight arm-bar takedown” to “subdue” K.W., tackled him, and finished handcuffing him. Tr. 4 & State’s Exh. 1.

K.W. was adjudicated delinquent without the court ordering any disposition for resisting law enforcement. Thus, the court immediately dismissed the case after finding K.W. delinquent, without imposing terms of probation or any other consequence. K.W. appealed, challenging the sufficiency of the evidence.

The Court of Appeals reversed, finding insufficient evidence that Officer Smith was “lawfully engaged in the execution of the officer’s duties” as a law-enforcement officer. K.W. v. State, 976 N.E.2d 61, 63 (Ind.Ct.App.2012). The Court reasoned that Officer Smith was acting in his capacity as school-liaison officer but not a law-enforcement officer. Id. at 65. The State sought transfer, and we reverse the trial court, though for different reasons than the Court of Appeals.

Sufficiency of the Evidence

“In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess the credibility of the witnesses.” Treadway v. State, 924 N.E.2d 621, 639 (Ind.2010). “Rather, we look to the evidence and reasonable inferences drawn therefrom that support the [judgment], and we will affirm the [adjudication] if there is probative evidence from which a reasonable [factfinder] could have found the defendant guilty beyond a reasonable doubt.” Id. We must therefore reverse if there is no evidence or reasonable inference to support any one of the necessary elements of the offense. E.g., Grace v. State, 731 N.E.2d 442, 445 (Ind.2000) (“[T]here must be sufficient evidence on each material element” to affirm a conviction).

The basic offense of resisting law enforcement has five essential elements: that K.W. (1) knowingly or intentionally (2) forcibly (3) resisted, obstructed, or interfered with (4) a law enforcement officer, (5) while the officer was lawfully engaged in the execution of the officer’s duties. Ind.Code § 35-44-3-3 (2011) (repealed; recodified at I.C. § 35-44.1-3-1 (2012)); Spangler v. State, 607 N.E.2d 720, 723 (Ind.1993) (construing “forcibly” as modifying the entire string “resists, obstructs, or interferes”). Because the Court of Appeals found the fifth element dispositive, it did not address the others. K.W., 976 N.E.2d at 63. We reverse, though, for insufficient evidence of the second element — whether K.W. “forcibly” resisted, obstructed, or interfered with Officer Smith.

I. “Forcibly” Resisting

This Court has held that “one ‘forcibly resists’ law enforcement when strong, powerful, violent means are used to evade a law enforcement official’s rightful exercise of his or her duties.” Spangler, 607 N.E.2d at 723. The level of force certainly “need not rise to the level of mayhem.” Graham v. State, 903 N.E.2d 963, 965 (Ind.2009). Yet the statute does not demand complete passivity, either. Merely walking away from a law-enforcement encounter, Spangler, 607 N.E.2d at 724, leaning away from an officer’s grasp, A.C. v. State, 929 N.E.2d 907, 912 (Ind.Ct.App.2010), or “twisting and turning ‘a little bit’ ” against an officer’s actions, Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind.Ct.App.1998), do not establish “forcible” resistance.

Here, the only evidence presented to the trial court was Sergeant Smith’s testimony and the surveillance video of the incident, and neither establishes “force” beyond a reasonable doubt. Sergeant Smith’s testimony was merely that K.W. “began to resist and pull away,” Tr. 3, or “turned, [and] pulled away,” Tr. 4. But nothing in either description suggests any “strength, power, or violence” in K.W.’s maneuver, beyond what is inherent in taking a step away, see Spangler, 607 N.E.2d at 723-24, “leaning] away,” see A.C., 929 N.E.2d at 912, or “twisting and turning ‘a little bit,’ ” see Ajabu, 704 N.E.2d at 495-none of which amount to “forcible” resistance. Without evidence of “forcible” resistance, KW.’s delinquency adjudication cannot be sustained.

II. School Liaison Officers

Though our grant of transfer vacates the Court of Appeals’ opinion, Ind. Appellate Rule 58(A), we acknowledge the legitimate policy question it raised. Our resisting law enforcement statute prohibits “forcibly resisting], obstructing], or interfering] with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer’s duties.” I.C. § 35 — 44.1—3—1(a)(1) (2012). And while it has become commonplace for schools to employ off-duty law enforcement officers as “liaison officers,” “resource officers,” and in other similarly titled positions, there are sound reasons to distinguish between police performing school-discipline duties and those performing law-enforcement duties.

“[T]he school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Thus, officers acting as agents of a school for disciplinary purposes may stop a student to demand identification, D.L. v. State, 877 N.E.2d 500, 505-06 (Ind.Ct.App.2007), trans. denied; seize a student on an uncorroborated anonymous tip without reasonable articulable suspicion, T.S. v. State, 863 N.E.2d 362, 376-77 (Ind.Ct.App.2007), trans. denied; and conduct a pat-down search of a student without warrant or probable cause, C.S. v. State, 735 N.E.2d 273, 276 (Ind.Ct.App.2000), trans. denied and D.B. v. State, 728 N.E.2d 179, 181 (Ind.Ct.App.2000), trans. denied — all of which would be unconstitutional for law-enforcement purposes.

We recognize it is somewhat anomalous that two uniformed law-enforcement officers responding to the same school incident could be treated differently for purposes of resisting law enforcement, if one was purely an “outside” officer while the other was a school-resource officer. School-resource officers serve a vitally important role in maintaining school safety and order against a growing range of discipline problems and threats, and we in no way diminish the value of their work. Yet we are also reluctant to risk blurring the already-fine Fourth Amendment line between school-discipline and law-enforcement duties by allowing the same officer to invisibly “switch hats” — taking a disciplinary role to conduct a warrantless search in one moment, then in the next taking a law-enforcement role to make an arrest based on the fruits of that search.

We note, though, that it would be within the Legislature’s prerogative to conclude that evolving threats to school security and discipline warrant expanding the resisting law enforcement statute to apply to forcible resistance, obstruction, or interference “with a law enforcement^ school liaison, or school resource] officer[,] or a person assisting the officer[,] while the officer is lawfully engaged in the execution of the officer’s duties.” See I.C. § 35-44.1-3-1(a)(1). Not only is such a policy judgment about the changing role of school officers best reserved to a politically responsive branch of government, it would be less likely than common law to cause unintended Fourth Amendment consequences. The Legislature may wish to consider such a change.

Conclusion

Because there is insufficient evidence that K.W. forcibly resisted Sergeant Smith, we reverse the trial court and vacate KW.’s delinquency adjudication.

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.

      . The surveillance video further confirms Sergeant Smith’s restrained and cautious characterization of K.W.’s conduct. It shows K.W. turning and taking a step away from Sergeant Smith while his arm was still in the officer’s grasp, immediately after which Sergeant Smith brought him to the floor by the “straight arm-bar takedown” his testimony described. Compare State’s Exh. 1, with Tr. 3-4. See also Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (assessing the overall summary judgment record in light of undisputedly accurate video of the event at issue).


author: DICKSON, Chief Justice.

text:
    Kimberly HEATON, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 48S02-1206-CR-350.
    Supreme Court of Indiana.
    March 5, 2013.

      Jill M. Acklin, Acklin Law Office, LLC, Westfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Chief Counsel, Ryan D. Johanningsmeier, Andrew A. Kobe, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   On Transfer from the Indiana Court of Appeals, No. 48A02-1104-CR-404

DICKSON, Chief Justice.

The defendant-appellant, Kimberly Heaton, challenges the trial court’s revocation of her probation and its order that she serve eighteen months of her previously suspended twenty-four month sentence. Heaton’s appeal raises the question of what legal standard is to be applied in a probation revocation proceeding where the State claims that the probationer committed a new criminal offense while on probation. We hold that the correct legal standard is the statutorily-mandated preponderance of the evidence standard.

On August 3, 2009, the defendant pled guilty to Receiving Stolen Property as a Class D felony, Ind.Code § 35-43-4-2(b). On September 14, 2009, the trial court sentenced her to thirty months, with twenty-four months suspended to probation. While serving her probation term, the defendant was arrested and charged with Theft as a Class D felony, Ind.Code § 35-43-4-2(a). The State filed a Notice of Violation of Probation alleging five violations of probation conditions. After an evidentiary hearing, the trial court determined that the defendant had committed four probation violations, including commission of a new criminal offense. The remaining three violations were technical in nature: (1) failure to keep the probation department informed of her current address; (2) failure to obtain a substance abuse evaluation; and (3) failure to verify employment with the probation department. The trial court ordered the defendant to serve eighteen months of her previously-suspended sentence at the Indiana Department of Correction.

On appeal, the defendant has challenged the standard of proof used by the trial court in determining whether the defendant had committed a new criminal offense. The defendant contends that the trial court erred in using the probable cause standard and should have instead used the preponderance of the evidence standard. The Court of Appeals agreed with the defendant, reversed the decision of the trial court, and remanded. Heaton v. State, 959 N.E.2d 330, 331 (Ind.Ct.App.2011). We granted transfer.

“Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007). It is within the discretion of the trial court to determine probation conditions and to revoke probation if the conditions are violated. Id. In appeals from trial court probation violation determinations and sanctions, we review for abuse of discretion. Id. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances, id., or when the trial court misinterprets the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind.2008) (citing Axsom v. Axsom, 565 N.E.2d 1097, 1099 (Ind.Ct.App.1991) (“An abuse of discretion may also be found when the trial court misinterprets the law or disregards factors listed in the controlling statute.”)).

Probation revocation is a two-step process. First, the trial court must make a factual determination that a violation of a condition of probation actually occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind.2008). Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation. Id.

The parties’ dispute stems from the proper legal standard for the trial court to apply when making its factual determination in step one of the two-step process. The defendant contends that the trial court erred by using the probable cause standard in evaluating whether the defendant actually committed the crime of Theft. Appellant’s Br. at 10-11 (citing Tr. at 74 (“[T]o the extent that this Court only has to make a probable cause determination, that is that a charge was filed and it is, and it is supported by probable cause, that’s clearly the case here.”)). The defendant asserts that the trial court should have instead used the preponderance of the evidence standard. Ind.Code § 35-38-2-3(e) (2008) (“The state must prove the violation by a preponderance of the evidence.”). The State argues, based on pri- or case law, that “[t]he proper standard for determining whether a probationer committed a crime is probable cause.” Appel-lee’s Trans. Br. at 4.

The State relies primarily on this Court’s decision in Cooper v. State, 917 N.E.2d 667 (Ind.2009). In Cooper, the State initiated probation revocation proceedings based on domestic violence charges filed against the defendant. Id. at 669-70. At the probation revocation hearing, the trial court found that the defendant committed a crime and revoked the defendant’s probation. Id. at 670. Because the defendant in Cooper failed to timely appeal, he forfeited his right to appeal the trial court’s order, and thus the only issue properly before the Court was “whether the trial court erred in denying Cooper’s motion to reconsider.” Id. at 673. In reviewing the denial of the motion to reconsider for abuse of discretion, the Court observed that “if the trial court after a hearing finds that the arrest was reasonable and there is probable cause to believe the defendant violated a criminal law, revocation will be sustained.” Id. at 674 (emphasis added) (citing Brooks v. State, 692 N.E.2d 951, 953 (Ind.Ct.App.1998), trans. denied).

Cooper appears to rely on a prior, superseded probation revocation statute which stated in part: “If it shall appear that the defendant has violated the terms of his probation or has been found guilty of having committed another offense, the court may revoke the probation or the suspension of sentence and may impose any sentence which might originally have been imposed.” Ind.Code § 35-7-2-2 (1971). The statute did not expressly provide a legal standard for courts to make this factual determination, but courts regularly used the probable cause standard in practice. See, e.g., Hoffa v. State, 267 Ind. 133, 135, 368 N.E.2d 250, 252 (1977) (“[T]he trial court ... found that the arrest was reasonable and further found that there was probable cause for belief that the defendant had violated the criminal law of this state....”). In 1976, Indiana Code Section 35-7-2-2 was amended to include a subsection (d), which stated, “The state has the burden of proving the violation [of a condition of probation] by a preponderance of the evidence.” P.L. 148-1976 § 23, 1976 Ind. Acts 718. The language in subsection (d) closely corresponds with the language in subsection (e) of the 2008 version of the statute. Ind.Code § 35-38-2-3(e) (2008) (“The state must prove the violation by a preponderance of the evidence.”). Since the 1976 amendment, the statute has undergone repeal and reenactment, as well as numerous amendments. However, despite these changes, the language in subsection (e), calling for a probation violation to be proven by a preponderance of the evidence, has remained largely unchanged since its 1976 revision. Based on this clear, explicit declaration of the legislature, the correct burden of proof for a trial court to apply in a probation revocation proceeding is the preponderance of the evidence standard. To the extent that Cooper may be read to permit proof only by probable cause, it is overruled.

Alternatively, the State argues that the trial court did in fact apply the correct legal standard in its determination that the defendant had committed theft while on probation when it stated that “the Court will find on this evidence that there is a preponderance of the evidence to support the allegation of theft.” Appellee’s Br. at 6 (citing Tr. at 40). Although the State admits that the trial court, when announcing its revocation order, did reference the probable cause standard, it claims that “[b]ecause the court had correctly found by a preponderance of the evidence that Defendant had committed the crime, the court’s later statement that it had found that probable cause existed to show that Defendant had committed the crime was harmless error.” Id. Because the record is unclear as to which standard the trial court actually applied in determining whether the defendant had committed a new criminal offense, we cannot be assured that the trial court applied the proper standard and decline to find harmless error.

The State further asserts that the probation revocation should be affirmed because the defendant does not contest the trial court’s findings that she had violated two other conditions of her probation. While it is correct that probation may be revoked on evidence of violation of a single condition, the selection of an appropriate sanction will depend upon the severity of the defendant’s probation violation, which will require a determination of whether the defendant committed a new criminal offense. Given that the remaining three violations are technical in nature, the trial court, in its discretion, may decide to continue the probationer on probation without modification. See Ind.Code § 35-38-2-3(g) (2008). In any event, such determination is better exercised by the trial court.

Because it is unclear which standard the trial court used in this instance, we remand the case to the trial court for reconsideration of whether the defendant violated her probation and if so, what sanction, if any, is appropriate.

Conclusion

We vacate the trial court’s order finding that the defendant violated her probation and ordering her to serve a portion of her previously suspended sentence. This cause is remanded for a new determination of whether the defendant violated the conditions of her probation by a preponderance of the evidence pursuant to Indiana Code Section 35-38-2-3(e) (2008) and, if so, the appropriate sanction for such violation.

RUCKER, DAVID, MASSA, and RUSH, JJ., concur.

      . Although Hoffa was decided after the effective date of the amended probation revocation statute which explicitly required the state to prove a violation of a condition of probation by a preponderance of the evidence, see P.L. 148-1976 § 23, 1976 Ind. Acts 718, the trial court's probation revocation hearing had been conducted on March 31, 1976, prior to the effective date of the amended statute. Therefore, the Hoffa court correctly applied the prior 1975 version of the statute.

      . In 1983, Indiana Code Section 35-7-2-2 was repealed by P.L. 311-1983 § 49, 1983 Ind. Acts 1861, and reenacted as Indiana Code Section 35-38-2-3 by P.L. 311-1983 § 3, 1983 Ind. Acts 1861.

      . See, e.g., P.L. 340-1977 § 146, 1977 Ind. Acts 1533 (amending subsection (d) to state, in part, "The state must prove the violation by a preponderance of the evidence.”); P.L. 67-1990, § 12, 1990 Ind. Acts 1555; P.L. 214-1991, § 1, 1991 Ind. Acts 3007; P.L. 240-1991(ss), § 94, 1991 Ind. Acts 3101; P.L. 216-1996, § 15, 1996 Ind. Acts 2677; P.L. 166-2001, § 1, 2001 Ind. Acts 1074; P.L. 98-2004, § 152, 2004 Ind. Acts 1568; P.L. 13-2005, § 1, 2005 Ind. Acts 1328; P.L. 156-2007, § 5, 2007 Ind. Acts 2283; P.L. 48-2008, § 1, 2008 Ind. Acts 1030; P.L. 106-2010, § 11, 2010 Ind. Acts 1237; P.L. 147-2012, § 10, 2012 Ind. Acts 3242.

      . The Court of Appeals noted several other Indiana cases which similarly rely on the out-of-date probable cause standard. Heaton, 959 N.E.2d at 333 (citing Davis v. State, 916 N.E.2d 736, 740 (Ind.Ct.App.2009), trans. denied; Tillberry v. State, 895 N.E.2d 411, 417 (Ind.Ct.App.2008), trans. not sought; Weatherly v. State, 564 N.E.2d 350, 352 (Ind.Ct.App.1990), trans. not sought). To the extent that these cases conflict with our opinion today, they are likewise overruled.


author: RUCKER, Justice.

text:
    Todd J. CRIDER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 91S05-1206-CR-306.
    Supreme Court of Indiana.
    March 21, 2013.

      Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Petition To Transfer from the Indiana Court of Appeals, No. 91A05-1108-CR-389

RUCKER, Justice.

In this case we conclude that the waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the Defendant did not bargain for the sentence.

Facts and Procedural History

On December 1, 2010 Todd J. Crider was charged in White County with theft, a class D felony, and he was also alleged to be a habitual offender. On May 31, 2011 Crider and the State submitted to the trial court a written plea agreement which provided that Crider would plead guilty as charged and admit his status as a habitual offender. Under terms of the agreement Crider was to be sentenced to a term of three years in the Department of Correetion enhanced by three years for the habitual offender allegation. At the time of the agreement Crider had been convicted in Tippecanoe County of two counts of theft; one count of attempted fraud; adjudged to be a habitual offender; and ordered to serve a partially suspended 545-day sentence.

As originally drafted, a line in the plea agreement provided “The sentence in Count II [the habitual offender count] shall be served concurrent with an habitual offender enhancement received in Tippecanoe County.” App. at 9. However, this line was scratched out and was initialed by both Crider and his attorney. Also as originally drafted the plea agreement provided for a sentence of one and one-half years for theft enhanced by one and one-half years for the habitual offender adjudication. This provision too was scratched out, replaced with three years, and initialed by Crider, his attorney, and the deputy prosecutor. The agreement further provided in pertinent part:

The Defendant waives his right to appeal any sentence imposed by the trial court that is within the range set forth in the plea agreement. Further, the Defendant knowingly, intelligently and voluntarily waives his right to challenge the sentence on the basis that it is erroneous.

App. at 9. During its colloquy with Crider on his decision to plead guilty the trial court declared “if you’ve been convicted recently in Tippecanoe County, do you understand that the sentences imposed in this case, part of them or all of them, may have to be served consecutively to one another, one after the other?” Tr. at 16. The trial court continued, “there may be some case law out there that would require if you are convicted of pending habitual offender charges, that that portion of your sentences, if they are similar, they may be served concurrently, but that’s subject to Court interpretation, and we’ll learn that at the sentencing hearing.” Tr. at 16-17. Ultimately the trial court determined that Crider entered the plea voluntarily and that there was a factual basis for the same. The trial court then took the plea under advisement and ordered a presentence investigation report.

Based on the trial court’s representation at the plea hearing, on the day of sentencing, July 18, 2011, Crider filed a Sentencing Memorandum that contended the habitual offender enhancement he was about to receive in this ease could not be ordered to be served consecutively to the habitual offender enhancement Crider received in Tippecanoe County. Crider reiterated this point orally to the trial court at the sentencing hearing. See App. at 26. Accepting the parties’ plea agreement the trial court sentenced Crider to three years for the theft conviction enhanced by three years for the habitual offender adjudication for a total executed term of six years. Rejecting Coder’s argument concerning the Tippecanoe case the trial court declared:

The Court has considered the defendant’s Sentencing Memorandum. I interpret Indiana Code 35-50-2-8 with the circumstances that we have, to require that the habitual offender count enhance the sentence the defendant is convicted of here in White County. According to this ordering, that White County sentence is to be served consecutively to the sentence imposed out of Tippecanoe County....

Tr. at 28. Crider appealed raising a single issue: “Whether the trial court’s order that Todd Crider’s habitual offender enhancement be served consecutively to the habitual offender enhancement in a case from Tippecanoe County was illegal.” Br. of Appellant at 1. In a divided opinion the Court of Appeals dismissed Crider’s appeal on grounds that under the terms of the plea agreement Crider agreed that he “knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous.” Crider v. State, 966 N.E.2d 675, 676 (Ind.Ct.App.2012) (quoting App. at 9). Having previously granted transfer we now reverse the judgment of the trial court.

Discussion

Indiana Code section 35-50-2-8, the habitual offender statute, provides in relevant part that a person is a habitual offender if the jury or the court finds that the person “has accumulated two (2) prior unrelated felony convictions.” And Indiana Code section 35-50-1-2 governs the authority of courts to order consecutive sentences. In Starks v. State, 523 N.E.2d 735 (Ind.1988) this Court addressed for the first time the propriety of a trial court ordering sentences for two habitual offender counts to run consecutively. Initially we noted that although the habitual offender statute provides that a person may be sentenced as a habitual offender for “any felony,” the statute did not answer the question of “whether the legislature has sanctioned the pyramiding of habitual offender sentences.” Id. at 736. Analyzing the habitual offender statute — section 35-50-2-8 — and the consecutive sentencing statute — section 35-50-1-2 — we concluded that the imposition of consecutive habitual offender sentences was improper. In doing so the Court noted that although section 35-50-1-2 granted sentencing courts the discretion to order consecutive sentences, this discretion is limited by the rules of rationality and constitutional restrictions. Starks, 523 N.E.2d at 736. We observed that on the one hand a sentence enhanced by the habitual offender statute is based upon the existence of two prior unrelated felony convictions. On the other hand consecutive sentences are based upon the principle that each separate and distinct criminal act should receive a separately experienced punishment. Id. at 737. Further the Court observed that the statute was “silent on the question of whether courts have the authority to require habitual offender sentences to run consecutively, when engaged in the process of meting out several sentences.” Id. at 737. With the foregoing considerations in mind the Court held “[i]n the absence of express statutory authorization for such a tacking of habitual offender sentences, there is none.” Id.

Since Starks, the Court of Appeals has also addressed the issue of whether consecutive habitual offender sentences are proper. In Smith v. State, 774 N.E.2d 1021 (Ind.Ct.App.2002), trans. denied, the court found that imposing consecutive habitual offender enhancements was improper, even where the enhancements arose from separate and unrelated trial or sentencing hearings. Id. at 1024; see also Ingram v. State, 761 N.E.2d 883, 885-86 (Ind.Ct.App.2002) (declaring trial court exceeded its legislative authorization in imposing consecutive habitual offender sentences even though the sentences arose from a single sentencing hearing rather than a single criminal trial).

As this Court has more recently declared: “[ujnder Indiana law, a trial court cannot order consecutive habitual offender sentences.” Breaston v. State, 907 N.E.2d 992, 994 (Ind.2009). And “[t]his holds true whether the concurrent enhanced sentence is imposed in a single proceeding or in separate proceedings.” Id. at 995.

In this case the State contends that as a “general rule” a trial court may not impose consecutive habitual offender enhancements. Br. of Appellee at 4. But the State argues the general rule does not apply in this case citing authority standing for the proposition that a defendant “may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence.” Br. of Appellee at 4 (quoting Lee v. State, 816 N.E.2d 35, 40 (Ind.2004)); see also Stites v. State, 829 N.E.2d 527, 529 (Ind.2005) (rejecting argument that plea agreement involving illegal consecutive sentence is invalid); Collins v. State, 509 N.E.2d 827, 833 (Ind.1987) (rejecting argument that felony conviction underlying habitual offender adjudication was illegal where conviction was based on plea agreement). But these cases are distinguishable.

Here Crider’s plea agreement did not “call[ ] for an illegal sentence.” Crider pleaded guilty under terms of an agreement that provided for a three-year sentence in the Department of Correction for the offense of theft enhanced by three years for his adjudication as a habitual offender. The agreement was silent on whether the sentence imposed was to run concurrently or consecutively with the sentence imposed in another county. There was nothing unusual or illegal about this arrangement. The problem however is that as a result of an apparent misapprehension of the law, the trial court was under the impression that it was “require^]” to order the habitual offender-enhanced sentence imposed in this case to run consecutively to the habitual offender-enhanced sentence imposed by the court in Tippecanoe County. Tr. at 28. This aspect of the sentence was not a part of the parties’ agreement. In consequence the trial court erred in imposing such sentence. We reiterate “[ujnder Indiana law, a trial court cannot order consecutive habitual offender sentences.” Breaston, 907 N.E.2d at 994.

Nonetheless, citing this Court’s opinion in Creech v. State, the State insists that by the very terms of Crider’s plea agreement Crider has waived review of his sentence. In Creech, the defendant and the State entered into a plea agreement in which the defendant pleaded guilty to one count of class C felony child molesting and sentencing was left to the trial court’s discretion with the limitation that the executed portion of any sentence was to be capped at six years. Also, the plea agreement contained the following waiver: “I hereby waive my right to appeal my sentence so long as the Judge sentences me within the terms of my plea agreement.” 887 N.E.2d 73, 74 (Ind.2008). At the conclusion of the sentencing hearing and in its sentencing order, the trial court advised Creech that he had a right to appeal his sentence. Creech appealed, asserting that his plea agreement was invalid because it was not made knowingly, voluntarily, and intelligently. This Court first recognized that whether such waivers should be enforceable at all was a question of first impression; but determined that “a defendant may waive the right to appellate review of his sentence as part of a written plea agreement.” Id. at 75. Ultimately the Court rejected Creech’s claim that the written waiver should not be enforced because the trial court orally advised Creech that he had a right to appeal. Id. at 77. Citing the Seventh Circuit, the Court recognized “[m]ost waivers are effective when set out in writing and signed.” Id. at 76 (quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir.1995), superseded by statute on other grounds). And Creech did “not claim that the language of the plea agreement was unclear or that he misunderstood the terms of the agreement at the time he signed it.” Id. Instead, he argued that “his otherwise knowing and voluntary plea lost its knowing and voluntary status because the judge told him at the end of the sentencing hearing that he could appeal.” Id. (footnote omitted). We concluded, “[b]y the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain. Being told at the close of the hearing that he could appeal presumably had no effect on that transaction.” Id. at 77. As the Court of Appeals subsequently noted, “it is clear that under Creech, a trial court’s incorrect advisement at the conclusion of a defendant’s sentencing hearing has no effect on an otherwise knowing, voluntary, and intelligent waiver of the right to appeal his sentence.” Ricci v. State, 894 N.E.2d 1089, 1093 (Ind.Ct.App.2008), trans. denied (emphasis added).

Ricci also involved a written plea agreement which provided the defendant waived his right to appeal. In contrast to Creech, however, the trial court in Ricci had unambiguously stated at the plea hearing that according to its reading of the plea agreement, Ricci had not surrendered the right to appeal his sentence, and the court’s statement was not contradicted by counsel for either party. Id. In those circumstances, the Court of Appeals concluded that all parties “entered into the plea agreement with the understanding that Ricci retained the right to appeal his sentence” and held the waiver “a nullity.” Id. at 1094.

The Court of Appeals was faced with a similar situation in Bonilla v. State, 907 N.E.2d 586 (Ind.Ct.App.2009), trans. denied. Bonilla entered into a written agreement waiving his right to appeal. And at the plea hearing the trial court noted Bonilla “may” have waived his right to appeal his sentence. Bonilla, 907 N.E.2d at 589. However, the court proceeded to advise Bonilla of his right to appeal and asked if he understood that right. Id. Given the contradictory information Bonilla received at the plea hearing and the fact that Bonilla was not a native English speaker the Court of Appeals concluded that Bonilla did not waive his right to appeal his sentence. Id. at 590.

Taken together, our jurisprudence stands for the proposition that in Indiana, a defendant can waive his right to appeal an illegal sentence. Our cases have recognized legitimate reasons for this proposition. “[Defendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category.” Lee, 816 N.E.2d at 40 (quoting Davis v. State, 771 N.E.2d 647, 649 n. 4 (Ind.2002)). Cf. United States v. Woltmann, 610 F.3d 37, 40 (2d Cir.2010) (“[T]he benefits of such waivers inure to both government and the defendant alike, with the government receiving the benefit of reduced litigation, and the defendant receiving some certainty with respect to his liability and punishment.” (quoting United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir.2000))). But in our eases enforcing illegal sentences, those sentences were explicitly provided for in the plea agreement, and the defendant benefítted from the plea. See, e.g., Lee, 816 N.E.2d at 39-40 (upholding improper consecutive sentences, explicitly provided for in the plea agreement, where the State dismissed a habitual offender allegation in exchange); Stites, 829 N.E.2d at 528 (affirming imposition of illegal consecutive sentences where defendant “specifically agreed to the consecutive sentences in her plea agreement” and “[a]s part of the plea agreement the State agreed that it would not seek the death penalty”); Collins, 509 N.E.2d at 833 (finding no error where the defendant ben-efitted by receiving an illegally suspended sentence). Cf. Sinn v. State, 609 N.E.2d 434, 435-36 (Ind.Ct.App.1993), trans. denied (in the apparent absence of an appeal waiver, vacating consecutive sentences not authorized by statute even though the plea agreement explicitly called for the sentences to run consecutively). In other words, our precedent supports the view that where a plea agreement provides for the illegality later challenged, a valid waiver contained therein will be upheld.

Several federal jurisdictions permit the appeal of an illegal sentence pursuant to a rule refusing enforcement of an “otherwise valid waiver [of appeal] if to do so would result in a miscarriage of justice.” Andis, 333 F.3d at 891. See also United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.2004), per curiam; United States v. De-La-Cruz Castro, 299 F.3d 5, 10 (1st Cir.2002). Considerations in assessing a “miscarriage of justice” vary by jurisdiction but may include “the clarity of the alleged error, its character and gravity, its impact on the defendant, any possible prejudice to the government, and the extent to which the defendant acquiesced in the result.” United States v. Pratt, 533 F.3d 34, 37 (1st Cir.2008) (quoting United States v. Cardona-Diaz, 524 F.3d 20, 23 (1st Cir.2008)). See also Hahn, 359 F.3d at 1325-1327 (employing the Andis court’s three-pronged approach analyzing the scope of the waiver, the knowing and voluntary character of the waiver, and whether enforcement of the waiver would result in a miscarriage of justice, where miscarriage of justice may be found only in four specific situations and then subject to additional constraints). Such an approach would undoubtedly have value in certain situations. See, e.g., Lee, 816 N.E.2d at 38 (agreeing that “we would not enforce a sentence of death for jay walking simply because the sentence was the product of a plea agreement.” (quoting Sinn, 609 N.E.2d at 436)). While we agree that “allowing a defendant to waive appeal of any and every sentence imposed in violation of law would ‘invite[ ] disrespect for the integrity of the courts,’ ” United States v. Ready, 82 F.3d 551, 556 (2d Cir.1996) (quoting Wheat v. United States, 486 U.S. 153, 162, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988)), the facts of the instant case do not require us to adopt the “miscarriage of justice” analysis.

Here — in contrast to Lee, Stites, and Collins — the plea agreement did not provide for an illegal sentence. We presume a trial judge “is aware of and knows the law.” Dumas v. State, 803 N.E.2d 1113, 1121 (Ind.2004). See also Moran v. State, 622 N.E.2d 157, 159 (Ind.1993) (recognizing the “strong presumption” that the trial court “has acted correctly and has properly followed the applicable law”). And when entering a contract with the prosecutor, a defendant is entitled to presume that that trial court will order performance of the contract in compliance with the law. Cf. Ready, 82 F.3d at 559 (“[W]e construe the agreement against a general background understanding of legality. That is, we presume that both parties to the plea agreements contemplated that all promises made were legal, and that the non-contracting ‘party’ who implements the agreement (the district judge) will act legally in executing the agreement.” (citing Walsh v. Schlecht, 429 U.S. 401, 408, 97 S.Ct. 679, 50 L.Ed.2d 641 (1977))). Indeed, “[p]lea agreements and appeal waivers rest on the basic assumption that a sentencing court -will correctly understand the statutory scheme and sentencing guidelines that are to be utilized in sentencing a defendant.” Hahn, 359 F.3d at 1330 (Lucero, J., concurring in part and dissenting in part). In other words, the “default rule” for plea agreements is that sentences will be determined and imposed legally, where there is no agreement otherwise.

Absent due process concerns to the contrary, when a defendant explicitly agrees to a particular sentence or a specific method of imposition of sentences, whether or not the sentence or method is authorized by the law, he cannot later appeal such sentence on the ground that it is illegal. See Lee, 816 N.E.2d at 40. In this case Crider made no such agreement. And in the absence of any such agreement, he was entitled to presume that the trial court would sentence him in accordance with the law. Crider’s waiver of appeal in his plea agreement therefore applied only to sentences imposed in accordance with the law. Because the law does not permit the imposition of consecutive habitual offender sentences and Crider did not agree to consecutive habitual offender sentences, his waiver of appeal is thus invalid and his habitual offender sentences must be ordered to run concurrently.

Conclusion

We reverse in part the trial court’s sentencing order and remand for resentencing in accordance with this opinion.

DICKSON, C.J., and DAVID, MASSA and RUSH, JJ., concur.

      . This is by no means the rule in all jurisdictions. See, e.g., United States v. Andis, 333 F.3d 886, 891-92 (8th Cir.2003) ("[A] defendant has the right to appeal an illegal sentence, even though there exists an otherwise valid waiver.”); United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir.2001) (recognizing that "[alppellate waivers are subject to certain exceptions” and "a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court”) (citations omitted); People v. Bottenfield, 159 P.3d 643, 645 (Colo.Ct.App.2006) (concluding "a defendant cannot waive the right to challenge an illegal sentence because there cannot be a valid agreement to an illegal sentence”).