Kyle Yoquelet v. State of Indiana (mem. dec.) ( 2017 )

FILED
MEMORANDUM DECISION
08/22/2017, 11:00 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Indiana Supreme Court
Memorandum Decision shall not be regarded as Court of Appeals
and Tax Court
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
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle Yoquelet, August 22, 2017
Appellant-Defendant, Court of Appeals Case No.
57A03-1611-CR-2550
v. Appeal from the Noble Superior
Court.
The Honorable Michael J. Kramer,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
57D02-1507-CM-492
Friedlander, Senior Judge
[1] Kyle Yoquelet appeals from the trial court’s sentencing order, contending it
violates the terms of his plea agreement. The State agrees. We reverse and
remand with instructions.
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[2] Yoquelet entered into an oral plea agreement which provided that he would
1
plead guilty to one count of driving while suspended, a Class A misdemeanor,
2
and one count of carrying a handgun without a license, a Class A
misdemeanor, in exchange for the dismissal of other counts. The State and
Yoquelet, who was pro se, agreed to a sentence of one year on each count with
all but 180 days suspended to probation.
[3] During the sentencing hearing, the State acknowledged the 180-day cap on the
executed portion of Yoquelet’s sentence and that the sentences were to be
served concurrently, but consecutively to any sentence he should receive on
pending charges against him in two other counties. The trial court stated the
following at the sentencing hearing:
Okay I will sentence you in each count to uh, three hundred
sixty-five (365) days a[sic] I’ll suspend all of that except for one
hundred and eight[sic] days to be served without any credit for
time served and I will place you on probation for one hundred
and eighty (180) days under standard terms one (1) through
fourteen (14). I’ll also order that uh, that there be a fine of one
hundred (100) dollars in each count and court cost[s] of one
hundred and eighty three (183) dollars and fifty (59) cents in
count one (1) and I’ll waive the court costs in count 2 and I’ll just
put a due date for those of June 1st of next year. This sentence is,
they are concurrent with each other but consecutive to your other
sentences out of Steuben and DeKalb.
1
Ind. Code § 9-24-19-2 (2012).
2
Ind. Code § 35-47-2-1(a) (2014).
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Tr. pp. 15-16.
[4] The trial court’s written sentencing order, however, imposed a sentence on
Count I of 365 days and 185 days suspended, to be served consecutively to all
other cases and placed Yoquelet on probation for 180 days. The trial court
imposed a sentence on Count II using identical language. Per the trial court’s
written order, which conflicted with its statement at the hearing, Yoquelet was
to serve the sentences for these two counts consecutively, not concurrently, and
consecutively to his sentences in other counties.
[5] Here, though acknowledging the disparity between the trial court’s two
statements, the State would prefer that we credit the trial court’s oral sentencing
statement as more accurate and affirm the trial court’s sentencing order. Citing
Murrell v. State, 960 N.E.2d 854 (Ind. Ct. App. 2012), Yoquelet agrees that the
oral sentencing statement is accurate, but requests a remand to the trial court to
correct or clarify its written sentencing order to reflect that the sentences from
Noble County should be served concurrently with each other, but consecutively
to sentences from other counties. In Murrell, the oral sentencing statement
imposing concurrent sentences differed from the written sentencing statement
imposing consecutive sentences. We remanded with instructions for the trial
court to correct its written sentencing order. The same approach should be used
here.
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[6] We reverse the trial court’s written sentencing order and remand with
instructions that the trial court correct and clarify its written sentencing order
consistent with its oral sentencing statement and this opinion.
[7] Reversed and remanded with instructions.
Bailey, J., and Pyle, J., concur.
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