Deavin Bledsoe v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 11, 2017
• Docket: 49A05-1611-CR-2464
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 11 2017, 7:21 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Deavin Bledsoe, May 11, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1611-CR-2464 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David J. Certo, Appellee-Plaintiff. Judge Trial Court Cause No. 49G12-1608-CM-32550

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2464 | May 11, 2017 Page 1 of 4 Statement of the Case [1] Deavin Bledsoe appeals his sentence following his conviction for public nudity,

as a Class C misdemeanor. Bledsoe presents a single issue for our review,

namely, whether the trial court erred when it ordered him to stay away from a

certain intersection in Indianapolis when he serves the suspended portion of his

sentence. We affirm.

Facts and Procedural History [2] On August 19, 2016, Bledsoe was seen urinating in public outside a

convenience store located at 10th Street and Oxford Street in Indianapolis. The

State charged Bledsoe with public nudity, as a Class C misdemeanor.

Following a bench trial on October 5, the trial court found Bledsoe guilty as

charged, entered judgment, and sentenced him to sixty days with thirty-six days

suspended. During sentencing, the trial court “order[ed]” Bledsoe “not to

return” to the intersection of 10th Street and Oxford. Tr. at 22. This appeal

ensued.1

Discussion and Decision [3] Bledsoe’s sole contention on appeal is that the trial court was not authorized to

impose a “stay-away” order as part of his sentence. Appellant’s Br. at 9.

1 We note that this sentence is consecutive to a sentence Bledsoe is currently serving in another county. Bledsoe testified at sentencing that he would not be released until the “end of next year.” Tr. at 23-24. Because Bledsoe has yet to serve the sentence in this matter, the issue on appeal is not moot.

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2464 | May 11, 2017 Page 2 of 4 Bledsoe maintains that a trial court may only impose a stay-away order as a

condition of probation. In support of that contention, Bledsoe cites Indiana

Code Section 35-50-7-2, which provides:

The court that places a person on probation following conviction may issue an order, reasonable in scope, under this chapter that prohibits the person from entering the:

(1) area or property where an offense was committed by the person; and

(2) area immediately surrounding the area or property where an offense was committed by the person.

(Emphasis added). Bledsoe contends that, because the trial court did not order

him placed on probation, the court erred when it ordered him to stay away

from the intersection. We agree that under Indiana Code Section 35-50-7-2 a

stay-away order may only be issued when a defendant is placed on probation.

[4] The State maintains that the trial court’s comments at sentencing did not

constitute a “stay-away order” but were merely “a cautionary warning because

the trial court did not want Bledsoe to get into additional trouble based on the

neighborhood complaints and his current conviction.” Appellee’s Br. at 7. In

the alternative, the State contends that a “stay[-]away order can properly be

considered as [a] term of an informal probation.”

[5] First, nothing in the record indicates that the trial court imposed informal

probation in this case, so the State’s contention on that issue is without merit.

Second, we agree with Bledsoe that the trial court erred in its oral sentencing

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2464 | May 11, 2017 Page 3 of 4 statement when it “ordered” him to stay away from the intersection of 10th

Street and Oxford Street. However, the written sentencing order does not

include a stay-away order, and, rather than remand for resentencing, we credit

the court’s written sentencing order over the oral order. See McElroy v. State,

865 N.E.2d 584, 589 (Ind. 2007). The trial court’s written sentencing statement

properly omits the stay-away order. The trial court gave Bledsoe good advice

from the bench, but he is not required to stay away from the intersection of 10th

Street and Oxford Street in Indianapolis when he serves the suspended portion

of his sentence.

[6] Affirmed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2464 | May 11, 2017 Page 4 of 4