MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 11 2018, 9:22 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Mullins Curtis T. Hill, Jr. Appellate Public Defender Attorney General Crown Point, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jarvis Latwon McNeal, October 11, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1298 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff Boswell, Judge Trial Court Cause No. 45G03-1703-F5-23
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 1 of 6 Case Summary [1] Jarvis Latwon McNeal appeals the three-year sentence imposed by the trial
court following his guilty plea to level 5 felony carrying a handgun without a
license. He asserts that the trial court abused its discretion because its
sentencing statement is ambiguous and inadequate, and he urges us to remand
for clarification of the court’s sentencing order. He further asserts that his
sentence is inappropriate in light of the nature of the offense and his character.
Finding no abuse of discretion and that remand for clarification is unnecessary,
and further concluding that McNeal cannot meet his burden to demonstrate
that his sentence is inappropriate, we affirm.
Facts and Procedural History [2] On March 2, 2017, McNeal was driving a vehicle without a license plate. As
an officer attempted to make a traffic stop, McNeal threw an object out the
window, which was later determined to be a 9mm handgun. McNeal did not
have a license to carry the handgun, and he had prior felony convictions within
the last fifteen years.
[3] The State charged McNeal with level 5 felony carrying a handgun without a
license and class A misdemeanor carrying a handgun without a license.
Pursuant to a written plea agreement, McNeal pled guilty to the level 5 felony.
The parties agreed that, although sentencing was left to the trial court’s
discretion, his sentence would be capped at a maximum of three years, the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 2 of 6 advisory sentence for a level 5 felony. Following a hearing, the trial court
imposed a three-year sentence. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion. Its sentencing statement is neither ambiguous nor inadequate, and remand for clarification is unnecessary. [4] McNeal contends that the trial court abused its discretion in issuing an
ambiguous and inadequate sentencing statement, and he invites us to remand to
the trial court for clarification. Specifically, he complains that the court’s oral
sentencing statement is inconsistent with the court’s written sentencing
statement because, in the oral statement, the court found two aggravating
circumstances and one mitigating circumstance, but the court’s written
statement includes a finding that “the mitigating circumstances outweighed the
aggravating circumstances.” Appellant’s App. Vol. 2 at 55.
[5] We begin by noting that “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. “An abuse of discretion occurs if the decision is clearly against the logic
and effect of the facts and circumstances before the court.” Webb v. State, 941
N.E.2d 1082, 1088 (Ind. Ct. App. 2011), trans. denied. Trial courts “may abuse
[their] discretion by issuing an inadequate sentencing statement, finding
aggravating or mitigating factors that are not supported by the record, omitting
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 3 of 6 factors that are clearly supported by the record and advanced for consideration,
or by finding factors that are improper as a matter of law.” Id.
[6] “When oral and written sentencing statements conflict, we should examine
them together to discern the intent of the sentencing court.” Walker v. State, 932
N.E.2d 733, 738 (Ind. Ct. App. 2010). “Rather than presuming the superior
accuracy of the oral statement, we examine it alongside the written sentencing
statement to assess the conclusions of the trial court.” Dowell v. State, 873
N.E.2d 59, 60 (Ind. 2007) (quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind.
2007)). Where the two statements conflict, this Court has the option of
crediting the statement that accurately pronounces the sentence or remanding
for resentencing. McElroy, 865 N.E.2d at 589.
[7] Here, both the oral and written sentencing statements (as well as the abstract of
judgment) impose precisely the same three-year sentence. McNeal complains
that the trial court’s reasons for imposing that sentence are ambiguous and
inadequate due to the inconsistency between the two statements. However,
having examined both statements, we believe that the trial court’s oral
statement accurately and adequately pronounces its reasons for the sentence
imposed, and therefore remand is unnecessary. It is apparent from its oral
statement that, in imposing sentence, the trial court relied on two aggravating
circumstances—McNeal’s criminal history and his numerous failed attempts at
probation—and one mitigating circumstance—recent positive changes he has
made in his life. The trial court went further to explain on the record that a
three-year sentence was more than justified based on its consideration of those
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 4 of 6 circumstances, specifically noting disagreement with the plea agreement’s
sentencing cap in stating, “on the face of it you really deserve more time than
this.” Tr. Vol. 2 at 31. Therefore, we conclude that the trial court’s finding that
“the mitigators outweighed the aggravators” in its written statement was simply
a clerical error. Because the trial court’s intent is clear, and the oral statement
includes a reasonably detailed recitation of the court’s reasons for imposing the
three-year sentence, we find no abuse of discretion and no need to remand for
clarification.
Section 2 – McNeal cannot meet his burden to demonstrate that his sentence is inappropriate. [8] McNeal next claims that his sentence is inappropriate and invites this Court to
reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, we find that the sentence “is inappropriate in light of the
nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 11 2018, 9:22 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Mullins Curtis T. Hill, Jr. Appellate Public Defender Attorney General Crown Point, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jarvis Latwon McNeal, October 11, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1298 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff Boswell, Judge Trial Court Cause No. 45G03-1703-F5-23
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 1 of 6 Case Summary [1] Jarvis Latwon McNeal appeals the three-year sentence imposed by the trial
court following his guilty plea to level 5 felony carrying a handgun without a
license. He asserts that the trial court abused its discretion because its
sentencing statement is ambiguous and inadequate, and he urges us to remand
for clarification of the court’s sentencing order. He further asserts that his
sentence is inappropriate in light of the nature of the offense and his character.
Finding no abuse of discretion and that remand for clarification is unnecessary,
and further concluding that McNeal cannot meet his burden to demonstrate
that his sentence is inappropriate, we affirm.
Facts and Procedural History [2] On March 2, 2017, McNeal was driving a vehicle without a license plate. As
an officer attempted to make a traffic stop, McNeal threw an object out the
window, which was later determined to be a 9mm handgun. McNeal did not
have a license to carry the handgun, and he had prior felony convictions within
the last fifteen years.
[3] The State charged McNeal with level 5 felony carrying a handgun without a
license and class A misdemeanor carrying a handgun without a license.
Pursuant to a written plea agreement, McNeal pled guilty to the level 5 felony.
The parties agreed that, although sentencing was left to the trial court’s
discretion, his sentence would be capped at a maximum of three years, the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 2 of 6 advisory sentence for a level 5 felony. Following a hearing, the trial court
imposed a three-year sentence. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion. Its sentencing statement is neither ambiguous nor inadequate, and remand for clarification is unnecessary. [4] McNeal contends that the trial court abused its discretion in issuing an
ambiguous and inadequate sentencing statement, and he invites us to remand to
the trial court for clarification. Specifically, he complains that the court’s oral
sentencing statement is inconsistent with the court’s written sentencing
statement because, in the oral statement, the court found two aggravating
circumstances and one mitigating circumstance, but the court’s written
statement includes a finding that “the mitigating circumstances outweighed the
aggravating circumstances.” Appellant’s App. Vol. 2 at 55.
[5] We begin by noting that “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. “An abuse of discretion occurs if the decision is clearly against the logic
and effect of the facts and circumstances before the court.” Webb v. State, 941
N.E.2d 1082, 1088 (Ind. Ct. App. 2011), trans. denied. Trial courts “may abuse
[their] discretion by issuing an inadequate sentencing statement, finding
aggravating or mitigating factors that are not supported by the record, omitting
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 3 of 6 factors that are clearly supported by the record and advanced for consideration,
or by finding factors that are improper as a matter of law.” Id.
[6] “When oral and written sentencing statements conflict, we should examine
them together to discern the intent of the sentencing court.” Walker v. State, 932
N.E.2d 733, 738 (Ind. Ct. App. 2010). “Rather than presuming the superior
accuracy of the oral statement, we examine it alongside the written sentencing
statement to assess the conclusions of the trial court.” Dowell v. State, 873
N.E.2d 59, 60 (Ind. 2007) (quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind.
2007)). Where the two statements conflict, this Court has the option of
crediting the statement that accurately pronounces the sentence or remanding
for resentencing. McElroy, 865 N.E.2d at 589.
[7] Here, both the oral and written sentencing statements (as well as the abstract of
judgment) impose precisely the same three-year sentence. McNeal complains
that the trial court’s reasons for imposing that sentence are ambiguous and
inadequate due to the inconsistency between the two statements. However,
having examined both statements, we believe that the trial court’s oral
statement accurately and adequately pronounces its reasons for the sentence
imposed, and therefore remand is unnecessary. It is apparent from its oral
statement that, in imposing sentence, the trial court relied on two aggravating
circumstances—McNeal’s criminal history and his numerous failed attempts at
probation—and one mitigating circumstance—recent positive changes he has
made in his life. The trial court went further to explain on the record that a
three-year sentence was more than justified based on its consideration of those
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 4 of 6 circumstances, specifically noting disagreement with the plea agreement’s
sentencing cap in stating, “on the face of it you really deserve more time than
this.” Tr. Vol. 2 at 31. Therefore, we conclude that the trial court’s finding that
“the mitigators outweighed the aggravators” in its written statement was simply
a clerical error. Because the trial court’s intent is clear, and the oral statement
includes a reasonably detailed recitation of the court’s reasons for imposing the
three-year sentence, we find no abuse of discretion and no need to remand for
clarification.
Section 2 – McNeal cannot meet his burden to demonstrate that his sentence is inappropriate. [8] McNeal next claims that his sentence is inappropriate and invites this Court to
reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, we find that the sentence “is inappropriate in light of the
nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 5 of 6 the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. In conducting our review, the question “is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.
Ct. App. 2007). Our Supreme Court has cautioned that “[a] defendant’s
conscious choice to enter a plea agreement that limits the trial court’s discretion
to a sentence less than the statutory maximum should usually be understood as
strong and persuasive evidence of sentence reasonableness and
appropriateness,” and that following such an agreement, we should grant relief
“only in the most rare, exceptional cases.” Childress, 848 N.E.2d at 1081
(Dickson, J., concurring).
[9] This is not one of those exceptional cases. McNeal pled guilty to a level 5
felony that generally carries a sentencing range between one and six years, with
an advisory sentence of three years. Ind. Code § 35-50-2-6. The plea agreement
capped McNeal’s sentence at the advisory term of three years. Clearly, at the
time he entered into the plea agreement, McNeal believed that a sentence of
three years for his crime was reasonable and appropriate. Therefore, he cannot
now complain that the same sentence is inappropriate. Accordingly, we affirm.
[10] Affirmed.
Najam, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018 Page 6 of 6