Kenneth L. Shafer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 29, 2016
• Docket: 20A03-1507-CR-898
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 8:53 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 Peter D. Todd Gregory F. Zoeller Elkhart, Indiana Attorney General

Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth L. Shafer, January 29, 2016 Appellant-Defendant, Court of Appeals Case No. 20A03-1507-CR-898 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Charles Carter Appellee-Plaintiff Wicks Trial Court Cause No. 20D05-1501-F6-21

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016 Page 1 of 5 Case Summary [1] Kenneth Shafer appeals his sentence because of a discrepancy between the oral

and written sentencing orders. Specifically, the trial court orally pronounced a

“suspended” sentence on one of the four counts to which he pleaded guilty, but

there is no mention of this suspension in the written sentencing order or abstract

of judgment. Although the discrepancy is likely harmless error, we

acknowledge that the written sentencing order is consistent with the abstract of

judgment and allows Shafer to receive credit for time served. We therefore

determine that the written sentencing order imposes the proper sentence.

Facts and Procedural History [2] On January 8, 2015, the State charged Kenneth Shafer with three counts of

intimidation, each Level 6 felonies, and one count of public intoxication, a

Class B misdemeanor.1 Shafer pleaded guilty to all counts and a sentencing

hearing was held on May 4, 2015. The trial court orally sentenced Shafer to an

aggregate sentence of four years as follows:

Count I, two and one-half years at the Indiana Department of Correction (IDOC);

1 Shafer has an extensive criminal history that includes convictions for felony theft, battery with injury, and operating a vehicle while intoxicated, as well as a host of misdemeanor convictions, including numerous public intoxication convictions. See Appellant’s App. p. 17-24.

Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016 Page 2 of 5 Count II, one and one-half years at the IDOC, consecutive to Count I;

Count III, one and one-half years at the IDOC, consecutive to Count I but concurrent to Count II;

Count IV, “six months Elkhart County Jail, placed on one year of good behavior, suspended.”

Sent. Tr. p. 22-24.

[3] The written sentencing order and abstract of judgment, however, are

inconsistent with this oral sentence. Specifically, they state that Count IV is to

be served concurrent to Counts II and III and is not suspended. Shafer now

appeals his sentence, requesting that this Court find that the written sentencing

order is correct.

Discussion and Decision [4] The approach employed by Indiana appellate courts in reviewing sentences in

non-capital cases is to examine both the written and oral sentencing statements

to discern the findings of the trial court. McElroy v. State, 865 N.E.2d 584, 589

(Ind. Ct. App. 2007); see also Whatley v. State, 685 N.E.2d 48, 50 (Ind. 1997)

(where the Court had the option of either striking a sentence modification that

appeared in a CCS entry and contradicted the trial court’s oral sentencing order

or remanding to the trial court for a proper sentencing, the Court found that the

contradiction was not harmless error and elected to reinstate the original in-

Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016 Page 3 of 5 court sentencing and vacate the subsequent contradictory language). 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.

[5] Here, at the time of sentencing, the trial court orally ordered the following

sentence on Count IV: “six months of Elkhart County Jail, placed on one year

of good behavior, suspended.” Sent. Tr. p. 23. In the written sentencing order,

there is no mention of this sentence being suspended, but the order gives Shafer

credit for 119 days served plus applicable earned credit time. Appellant’s App.

p. 27. Furthermore the abstract of judgment ordered Shafer to serve 180 days

on Count IV. See id. at 29. Orally at sentencing, in the written order, and in the

abstract of judgment, the trial court ordered Count IV to run concurrent with

Counts II and III.

[6] Shafer concedes that since Count IV was to run concurrent with Counts II and

III, this discrepancy may have no actual impact. “However, Shafer will not

receive credit for time[] served on Count IV, if the oral sentence is controlling,

and a possibility exists that he may have to serve additional time should he be

released on Counts I, II, and III.” Appellant’s Br. p. 2. Shafer thus requests

that we find the written sentencing order, which is consistent with the abstract

of judgment, to be the proper sentencing order. The State contends that it

makes no difference whether a sentence served concurrently with a longer,

executed sentence is deemed “suspended,” and thus the error is harmless. See

Appellee’s Br. p. 8. We agree that the error is likely harmless, but in light of the

scenario set forth by Shafer, we find the best course of action is to determine

Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016 Page 4 of 5 that the written sentencing order, which is consistent with the abstract of

judgment and under which Shafer will receive credit for time served, is the

proper sentencing order.

[7] Affirmed.

Bailey, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016 Page 5 of 5