Bobby Dee Allen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 30, 2019
• Docket: 19A-CR-139
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 30 2019, 10:11 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kurt A. Young Curtis T. Hill, Jr. Nashville, Indiana Attorney General of Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bobby Dee Allen, September 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-139 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Elizabeth Christ, Appellee-Plaintiff. Judge Trial Court Cause No. 49G24-1804-F6-12338

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019 Page 1 of 6 Statement of the Case

[1] Following a bench trial, Bobby Allen (“Allen”) was convicted of Level 6 felony

operating a vehicle while intoxicated1 and Level 6 felony operating a vehicle

with an alcohol concentration equivalent (“ACE”) of .08 or more.2 On appeal,

Allen raises one issue, which we restate as whether remand to correct the

sentencing order, abstract of judgment, and chronological case summary

(“CCS”) is necessary because the oral and written sentencing statements

conflict. The State agrees that remand is necessary, as do we. Accordingly, we

remand this cause to the trial court to vacate the operating while intoxicated

conviction and to correct the sentencing order, abstract of judgment, and CCS

to reflect only a conviction for operating with an ACE of .08 or more.

[2] We remand.

Issue

Whether this case should be remanded to correct the sentencing order and abstract of judgment.

Facts

[3] On March 30, 2018, Indiana State Police Trooper Matthew Helmbrecht

(“Trooper Helmbrecht”) responded to a report of a stalled vehicle on I-70.

1 IND. CODE § 9-30-5-2. 2 I.C. § 9-30-5-1.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019 Page 2 of 6 When Trooper Helmbrecht arrived, he found a vehicle “stationary in the right

lane. [I]t was blocking – completely blocking the right lane, which is the exit

ramp to Rural Street.” (Tr. 8). Trooper Helmbrecht observed Allen standing

on the right shoulder of the interstate and another individual sitting in the front

passenger seat. As Trooper Helmbrecht spoke with Allen, he noticed the odor

of alcohol emanating from him. Trooper Helmbrecht also observed that Allen’s

speech was slurred and that his eyes were watery and bloodshot. Trooper

Helmbrecht then administered the horizontal gaze nystagmus (“HGN”) field

sobriety test to Allen, and he showed all six clues indicating possible

intoxication. Trooper Helmbrecht did not administer any other field sobriety

tests because Allen appeared to have unsteady balance and they were not in a

safe location.

[4] Based upon his observations and the results of the HGN test, Trooper

Helmbrecht believed that Allen had operated a vehicle while intoxicated. Allen

was handcuffed and then read Indiana’s Implied Consent law. Allen refused to

take a chemical test. Trooper Helmbrecht then transported Allen to Eskenazi

Hospital. After Trooper Helmbrecht obtained an electronic search warrant,

Allen underwent a blood draw. Allen’s lab report indicated that his “plasma-

serum ethyl alcohol concentration” was .183%, which corresponds “to a whole

blood ethyl alcohol concentration” in the range of .144% to .172%. (State’s

Exhibit 2).

[5] The State charged Allen with Count 1, Class C misdemeanor operating a

vehicle while intoxicated; Count 2, Class C misdemeanor operating a vehicle

Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019 Page 3 of 6 with an ACE of .08 or more; and Count 3, Class A misdemeanor driving while

suspended. The two operating counts were enhanced to Level 6 felonies due to

a prior conviction.

[6] A bench trial occurred in September 2018. Following the presentation of

evidence, the trial court found Allen guilty of Counts 1 and 2 and not guilty of

Count 3. In pronouncing its decision, the trial court stated the following:

The Court is satisfied with the evidence put forth by the State of Indiana and I’m finding the defendant guilty. Um, the elements for operating, uh, while intoxicated and operating a vehicle with an alcohol content of .08 or greater. There is overlapping, so the Court would enter judgment of conviction as to operating only one of the two counts. The operating a vehicle with an alcohol content of at least .08 or, uh, but less than .15. And entering, um, a not guilty verdict on the driving while suspended Count III.

(Tr. 57).

[7] The trial court held a sentencing hearing in December 2018. During the

hearing, the trial court stated the following:

The Court having reviewed the pre-sentence report; having presided over the trial and having found you guilty of operating a vehicle while intoxicated having prior conviction, found you guilty, uh, I found the State presented, um, evidence, uh, that satisfied me that there was operating of the vehicle and that, um, you had an alcohol content of .08 or greater with a prior conviction.

(Tr. 81).

[8] Following the sentencing hearing, the trial court issued its written sentencing

order. In the order, the court stated that Allen was guilty of Counts 1 and 2.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019 Page 4 of 6 The sentencing order also stated that Allen was sentenced to 365 days for

Count 1, a concurrent 365 days for Count 2, and 347 days suspended to

probation. The abstract of judgment and CCS reflect the same sentence

pronounced in the sentencing order. Allen now appeals.

Decision

[9] Allen contends, and the State agrees, that remand is necessary to correct the

written sentencing order and the abstract of judgment. Specifically, Allen

argues that the trial court intended to enter a judgment of conviction for only

Count 2, Level 6 felony operating a vehicle with an alcohol concentration

equivalent of .08 or higher. When oral and written sentencing statements

conflict, we examine them together to discern the intent of the sentencing court.

Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010), reh’g denied. We may

remand the case for correction of clerical errors if the trial court’s intent is

unambiguous. See Willey v. State, 712 N.E.2d 434, 445 n.8 (Ind. 1999) (“Based

on the unambiguous nature of the trial court’s oral sentencing pronouncement,

we conclude that the Abstract of Judgment and Sentencing Order contain

clerical errors and remand this case for correction of those errors.”).

[10] Here, the oral sentencing statement is clear that the trial court intended to enter

a conviction for Count 2 only. Despite this statement, the trial count entered a

judgment of conviction for both operating counts, as reflected in the sentencing

order, abstract of judgment, and CCS. Accordingly, we remand to the trial

Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019 Page 5 of 6 court with instructions to vacate Count 1 and enter a new sentencing order,

abstract of judgment, and CCS to reflect a conviction for Count 2.

[11] Remanded with instructions.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019 Page 6 of 6