Gordon Childress v. State of Indiana (mem. dec.) ( 2016 )

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
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[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.
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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
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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
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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).
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[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.
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