Terry Tripp v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 30 2019, 10:36 am
regarded as precedent or cited before any
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
Ellen M. O’Connor Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry Tripp, September 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-198
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc Rothenberg,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G02-1808-F4-28855
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-198 | September 30, 2019 Page 1 of 5
Case Summary
[1] Terry Tripp appeals his sentence, received pursuant to his guilty plea, for
burglary, a Level 5 felony, and his habitual offender enhancement. We
remand.
Issue
[2] Tripp raises two issues; however, we find one to be dispositive, which is
whether we should remand to the trial court for correction of an erroneous
sentence. 1
Facts
[3] On August 29, 2018, the State charged Tripp with Count I, burglary, a Level 4
felony; and Count II, attempted theft, a Class A misdemeanor. The State then,
on September 7, 2018, amended Count I to be a Level 5 felony. 2 On November
13, 2018, the State filed a notice of habitual offender allegation.
[4] Tripp pleaded guilty to Count I and the habitual offender enhancement, and the
State dismissed Count II. The factual basis for the offense, which Tripp
admitted to, was that “[o]n or about August 28th, 2018[, Tripp did break] and
enter a structure which was a residence [of Dennis Taylor], however, it was not
1
Due to our conclusion that remand is appropriate to correct Tripp’s erroneous sentence, we do not address
the issue of whether Tripp’s sentence was inappropriate in light of the nature of the offense and Tripp’s
character.
2
At the plea hearing, the State acknowledged that the reason for the change was because the burglary
occurred at an “uninhabited house.” Tr. Vol. II p. 6.
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being used as a residence at that time,” with the intent to commit the crime of
theft. Tr. Vol. II pp. 10-11. Tripp also admitted to two other convictions to
support his habitual offender status: (1) burglary, a Class C felony, on October
10, 2003; and (2) burglary, a Class B felony, on October 3, 2006.
[5] At the sentencing hearing, the trial court stated that Tripp would be sentenced
to ten years, with six of those years to be spent incarcerated at the Department
of Correction (“DOC”). Tripp was also placed in the Purposeful Incarceration
program which, if Tripp completed, the trial court agreed to “modify some of
that portion of the six years.” Tr. Vol. II p. 39. The trial court then indicated
that “[f]our years will be suspended. Three years will be placed on probation.”
Id. Finally, the trial court stated:
I do note that the three years is the advisory sentence on the
Level 5. The other three years are the portion due to the
Habitual Offender. And again, you do your Purposeful
Incarceration and that will lessen.
Id. The trial court’s written order sentences Tripp to “10 Year(s) and 0 Day(s)”
with “4 Year(s) and 0 Day(s)” suspended. Appellant’s App. Vol. II p. 11. The
written sentencing order also includes “Sentencing Conditions” including
probation for “3 years,” effective on December 21, 2018—the date of
sentencing. Id. Tripp now appeals.
Analysis
[6] Tripp argues that his sentence was illegal because, although the trial court
indicated it was sentencing Tripp to three years in the DOC for Count I, and
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three years for the habitual offender enhancement, the trial court did not
indicate where the remaining four years, which were suspended, applied.
Accordingly, Tripp argues that “adding four years to the stated three year
sentences on either [conviction] was not authorized by statute as the sentencing
statutes only authorize a total of six years per each [conviction],” pursuant to
Indiana Code Sections 35-50-2-6(b) 3 and 35-50-2-8(i)(2). 4 Appellant’s Br. p. 11.
[7] The State agrees that “clarification is needed from the trial court and this Court
should remand for clarification and correction of the erroneous sentence to
impose a sentence consistent with sentencing parameters.” Appellee’s Br. p. 8. 5
Based on this concession, we remand to the trial court to clarify and correct
Tripp’s sentence.
Conclusion
[8] Pursuant to the State’s concession that Tripp’s sentence should be remanded to
the trial court for clarification and correction, we remand.
3
“A person who commits a Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and six
(6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-2-6(b).
4
“The court shall sentence a person found to be a habitual offender to an additional fixed term that is
between: . . . two (2) years and six (6) years, for a person convicted of a Level 5 or Level 6 felony.” Ind.
Code § 35-50-2-8(i)(2).
5
The State makes a different argument than Tripp regarding how the sentence may have been split up,
namely, that the trial court could have given Tripp six years on Count I—three suspended—and four years
on the habitual offender enhancement, which would have been permissible under Indiana Code Section 35-
50-2-8(i)(2). The State, however, correctly points out that, even if this was the trial court’s intent, the trial
court would have erred in suspending that fourth year of the habitual offender enhancement, because
additional terms imposed under Indiana Code Section 35-50-2-8 are “nonsuspendible.”
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[9] Remanded.
Brown, J., and Altice, J., concur.
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