Gordon Childress v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 3, 2016
• Docket: 49A02-1506-CR-720
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 03 2016, 8:41 am

regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Suzy St. John Gregory F. Zoeller Marion County Public Defender – Attorney General of Indiana Appellate Division Indianapolis, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gordon Childress, March 3, 2016 Appellant-Defendant, Court of Appeals Cause No. 49A02-1506-CR-720 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff. Judge, Pro Tempore Trial Court Cause No. 49G10- 1412-CM-54449

Bradford, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016 Page 1 of 6 [1] In December of 2014, Appellant-Defendant Gordon Childress was charged

with Class A misdemeanor theft after he and a friend attempted to steal a

reciprocating saw and some Febreeze air fresheners from an Indianapolis-area

Home Depot store. Following a June 9, 2015 bench trial, Childress was found

guilty as charged and was sentenced to a term of 365 days. As part of his

sentence, Childress was ordered to stay away from all Home Depot stores

located in Marion County for 363 days (the “stay-away order”). Childress

subsequently filed the instant appeal, arguing that the trial court abused its

discretion in sentencing him. The trial court issued an amended sentencing

statement on December 11, 2015, clarifying that Childress was given credit for

two days served and the remaining 363 days of his sentence were suspended.

The amended sentencing statement again included the stay-away order.

[2] On February 19, 2016, Childress and Appellee-Plaintiff the State of Indiana (the

“State”) filed a joint motion to remand the matter to the trial court. In this joint

motion, the parties asserted that the trial court lacked jurisdiction to issue the

amended sentencing statement because the instant appeal had already been

filed. The parties also asserted that because the trial court did not place

Childress on probation, the stay-away order must be vacated. Concluding that

the parties’ assertions in the joint motion are correct, we grant the parties’ joint

motion. In doing so, we reverse the sentencing order of the trial court and

remand the matter to the trial court with instructions to enter an order that is

consistent with this memorandum decision.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016 Page 2 of 6 Facts and Procedural History [3] On December 9, 2014, Ryan Taylor, an Asset Protection Specialist at the Home

Depot store located at 21st Street and Post Road in Indianapolis, observed

Childress enter the store with Debra Lamb. During their visit to the store,

Taylor observed Lamb place several items, including a reciprocating saw and

some Febreeze air fresheners, into Lamb’s purse. Neither Childress nor Lamb

attempted to pay for the items placed in Lamb’s purse.

[4] After Lamb walked past all points of purchase, Taylor approached and detained

Lamb and Childress. Childress and Lamb initially indicated that Childress had

nothing to do with the theft. However, Childress subsequently indicated that he

had agreed to participate in the theft because neither he nor Lamb were

working and they needed money to pay their rent and to buy cigarettes,

groceries, and gas. Taylor subsequently recovered the reciprocating saw and

the Febreeze air fresheners from Lamb’s purse.

[5] On December 9, 2014, the State charged Childress with Class A misdemeanor

theft. Pursuant to the State’s request, the trial court ordered Childress to stay

away from all Home Depot stores located in Marion County until the

conclusion of trial. On June 9, 2015, following the conclusion of a bench trial,

the trial court found Childress guilty.

[6] At sentencing, the State requested that a stay-away order “be in place for a year

from the Home Depot stores.” Tr. p. 72. The trial court sentenced Childress to

a term of 365 days, with credit for two days of time served, and ordered

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016 Page 3 of 6 Childress to complete sixty-four hours of community service, with credit for

twenty-eight hours which had already been completed. The trial court also

issued the requested stay-away order.

[7] The trial court’s oral sentencing statement and written sentencing order initially

contained conflicting information as to whether the remaining 363 days of

Childress’s sentence were to be served in the Marion County Jail or were

suspended. The trial court later amended its sentencing order to specify that the

remaining 363 days were suspended. This amended sentencing statement was

issued after the instant appeal had be initiated.

[8] On February 19, 2016, Childress and the State filed a joint motion requesting

this court to remand the matter to the trial court. In this joint motion, the

parties jointly assert that although the trial court’s amended sentencing

statement reflected the parties’ understanding of the original sentence imposed

against Childress, the trial court lacked jurisdiction to issue the amended

sentencing statement because the instant appeal had already been filed. The

parties also agreed that pursuant to Indiana Code sections 35-50-7-1 and 35-50-

7-2, a stay-away order may only be issued when the defendant is placed on

probation. Accordingly, the parties jointly assert that because the trial court did

not place Childress on probation, the stay-away order must be vacated.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016 Page 4 of 6 I. Remand for Correction of Sentencing Order [9] As the above-stated facts indicate, there was initially an inconsistency between

the trial court’s oral and written sentencing statements as to whether 363 days

of Childress’s sentence was to be executed in the Marion County Jail or

suspended. On December 11, 2015, the trial court issued an amended

sentencing statement in which it clarified that the 363 days in question were

suspended. However, despite the fact that the amended sentencing statement

accurately reflected the parties’ understanding of the original sentence imposed

against Childress, the trial court lacked jurisdiction to issue the amended

sentencing order because the instant appeal had already been filed. See

generally, Ind. Appellate Rule 8. As such, we grant the parties’ joint motion and

remand the instant matter to the trial court with instructions for the trial court

to enter an amended sentencing order which is consistent with the trial court’s

December 11, 2015 amended sentencing statement.

II. Stay-Away Order [10] Indiana Code section 35-50-3-1 provides that a trial court “may suspend any

part of a sentence for a misdemeanor” and, if the trial court does so, “it may

place the person on probation.” (Emphasis added). When an individual is

placed on probation, the trial court “may issue an order … that prohibits the

person from entering the: (1) area or property where an offense was committed

by the person[.]” Ind. Code § 35-50-7-2 (emphasis added).

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016 Page 5 of 6 [11] Indiana Code section 35-50-7-2 clearly indicates that a stay-away order may

only be issued when a defendant is placed on probation. The parties assert that

because Childress was not placed on probation, the trial court abused its

discretion in imposing the stay-away order. The parties therefore request that

on remand, the trial court be instructed to vacate the stay-away order. Given

the language of Indiana Code section 35-50-7-2, we conclude that because the

trial court did not place Childress on probation, the issuance of the stay-away

order amounted to an abuse of the trial court’s discretion. We therefore reverse

the sentencing order of the trial court and remand the matter to the trial court

with instructions to enter a new order consistent with this opinion.1

[12] The judgment of the trial court is reversed and remanded with instructions.

Baker, J., and Bailey, J., concur.

1 In granting the parties’ joint motion, we also grant the parties’ joint request to vacate the oral argument scheduled in this matter for April 14, 2016.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016 Page 6 of 6