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

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.
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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.
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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-
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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
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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.
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