Anthony Anderson v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
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:
CHRIS P. FRAZIER GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
FILED
Indianapolis, Indiana
Dec 20 2012, 9:15 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
ANTHONY ANDERSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1205-CR-429
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Clark H. Rogers, Judge
Cause No. 49G17-1201-FD-5895
December 20, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Anthony G. Anderson (Anderson), appeals his sentence for
battery, a Class D felony, I.C. § 35-42-2-1, and invasion of privacy, a Class D felony, I.C.
§ 35-46-1-15.1.
We remand with instructions.
ISSUE
Anderson raises one issue on appeal, which we restate as follows: Whether his
abstract of judgment and chronological case summary (CCS) contain clerical errors.
FACTS AND PROCEDURAL HISTORY
On January 31, 2012, the State filed an Information charging Anderson with
Count I, domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3; Count II, battery, a
Class D felony, I.C. § 35-42-2-1, a Class A misdemeanor; Count III, invasion of privacy,
a Class A misdemeanor, I.C. § 35-46-1-15.1; and Count IV, interference with reporting a
crime, a Class A misdemeanor, I.C. § 35-45-2-5. Anderson waived his right to a jury
trial, and on April 16, 2012, a bench trial was held. The trial court granted Anderson’s
motion for an involuntary dismissal of Count I, and at the conclusion of the presentation
of evidence the trial court found Anderson not guilty of Count IV but guilty of Counts II
and III. On April 30, 2012, the trial court held a sentencing hearing, enhanced both
Counts to Class D felonies, and sentenced Anderson to two years on each Count to run
concurrent.
Anderson now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
Anderson argues on appeal that there are clerical errors in his abstract of judgment
and CCS and that the trial court intended him to serve his sentences for Counts II and III
concurrently rather than consecutively. In support of his argument, he quotes the trial
court’s oral sentencing statement:
So his . . . criminal history and I’ll give my sentencing statement, is that he
was . . . he has had five felony convictions, seven misdemeanor
convictions. He’s been on the benefit of probation [on] five occasions and
was revoked on all five. He’s also had a [e]scape conviction and he’s never
been granted AMS so with that, [Counts II and III] are enhanced to [] D
felon[ies]. I will run them concurrent and I will give him two years
executed at the [Department of Correction (DOC)] in both matters and no
probation. . . . 63 plus 63 credit days so 730 days minus 126 . . . 604. He
gets two for one . . . divide it by two equals . . . he’s got 302 actual days left
to do in the DOC.
(Transcript pp. 35-36). In contrast, Anderson’s abstract of judgment and CCS show the
sentences as running consecutively.
Where, as here, an oral and written sentencing statement conflict, we will examine
both statements to discern the findings of the trial court. Murrell v. State, 960 N.E.2d
854, 860 (Ind. Ct. App. 2012). We will not presume the superior accuracy of the oral
statement, but we have the option of crediting the statement that accurately pronounces
the sentence or remanding for resentencing. Id.It is clear here that the trial court intended Anderson to serve his sentences
concurrently. In its oral sentencing statement, the trial court explicitly stated “I will run
them concurrent” and then calculated the number of days that Anderson would serve.
The trial court’s total—302 days—is consistent with concurrent sentences of two years,
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adjusted for “good time” credit and time served. Accordingly, we conclude that the
references to consecutive sentences in the abstract of judgment and CCS are clerical
errors, and we remand to the trial court with instructions to fix the errors.
CONCLUSION
Based on the foregoing, we conclude that Anderson’s abstract of judgment and
chronological case summary contain clerical errors. We remand to the trial court to
rectify these errors in line with this decision.
Remanded with instructions.
BAKER, J. and BARNES, J. concur
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