Dale R. Davidson v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Aug 07 2013, 5:42 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:
JESSE R. POAG GREGORY F. ZOELLER
Newburgh, Indiana Attorney General of Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DALE R. DAVIDSON, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1302-CR-56
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert J. Pigman, Judge
Cause No. 82D02-1111-FA-1285
August 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Dale R. Davidson (“Davidson”) was convicted of Residential Entry, a Class D felony,1
and three Class A misdemeanors: Battery,2 Invasion of Privacy,3 and Interference with
Reporting of a Crime.4 An aggregate sentence of fifty-four months was orally pronounced;
an Abstract of Judgment indicates that a sentence of forty-eight months was imposed. On
appeal, Davidson presents the sole issue of whether a fifty-four month sentence exceeds that
statutorily permissible for a single episode of criminal conduct. The State responds that the
sentence must be clarified on remand. We remand for clarification of the sentence imposed.
Facts and Procedural History
On November 20, 2011, Davidson entered the home of his ex-wife, choked her
unconscious, and left with her telephone. As a result of those events, the State charged
Davidson with Burglary, as a Class A felony,5 Strangulation, a Class D felony,6 Invasion of
Privacy and Interference with Reporting of a Crime. At the conclusion of a two-day trial
conducted on December 17 and 18, 2012, the jury found Davidson guilty of Residential
Entry, Battery, Invasion of Privacy and Interference with Reporting of a Crime.
On January 11, 2013, the trial court conducted a sentencing hearing. The trial court
1
Ind. Code § 35-43-2-1.5.
2
I.C. § 35-42-2-1(a)(1)(A).
3
I.C. § 35-46-1-15.1(2).
4
I.C. § 35-45-2-5(1).
5
I.C. § 35-43-2-1.
6
I.C. § 35-42-2-9(B).
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orally pronounced a sentence of thirty months for Residential Entry, and twelve months for
each of the remaining convictions.7 The sentence for Battery was to be served concurrently
with the Residential Entry sentence, and the sentences for Invasion of Privacy and
Interference with Reporting of a Crime were to be served consecutively to each other and the
Residential Entry sentence. Accordingly, the sentence orally pronounced was fifty-four
months.
However, the trial court stated that it was ordering “a total sentence of forty-two
months, and [sic] thirty-six of which will be served at the Department of Corrections and six
will be served at the Vanderburgh County Work Release Program.” (Tr. 19.) The
chronological case summary indicates that an aggregate sentence of fifty-four months was
imposed.
Finally, the Abstract of Judgment indicates that an aggregate sentence of forty-eight
months was imposed, as follows: thirty months for Residential Entry, twelve months for
Battery, twelve months for Invasion of Privacy, and six months for Interference with
Reporting of a Crime. The latter was to be served on work release. The sentence for
Invasion of Privacy was to run concurrent with the sentence for Residential Entry, the
sentence for Battery was to run consecutive to the sentences for Residential Entry and
Invasion of Privacy, and the sentence for Interference with Reporting of a Crime was to run
consecutive to all the other sentences.
Davidson appeals.
7
The sentence for Interference with Reporting of a Crime was to be split between six months executed and six
months on work release.
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Discussion and Decision
Based upon the premise that he in fact received a sentence of fifty-four months,
Davidson argues that his sentence exceeds that permitted by statute. More specifically, he
claims that his sentence should be capped at forty-eight months.
Indiana Code section 35-50-1-2(c) provides in relevant part: “[E]xcept for crimes of
violence, the total of the consecutive terms of imprisonment, exclusive of terms of
imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for
felony convictions arising out of an episode of criminal conduct shall not exceed the advisory
sentence for a felony which is one (1) class of felony higher than the most serious of the
felonies for which the person has been convicted.”
Davidson was convicted of a Class D felony. The advisory sentence for a Class C
felony is four years. See I.C. § 35-50-2-6. None of Davidson’s convictions are for crimes of
violence enumerated in Indiana Code section 35-50-1-2(a). Accordingly, if Davidson’s
convictions arose from a single episode of criminal conduct, his sentence could not exceed
four years.
Davidson did not provide a copy of the trial transcript as part of the appellate record,
such that we might determine whether he engaged in a single episode of criminal conduct.
The appellant has the duty to present an adequate record clearly showing the alleged error
and, where he fails to do so, the issue is deemed waived. Stallings v. State, 508 N.E.2d 550,
552 (Ind. 1987). We cannot provide Davidson relief in this regard.
However, the State urges that we remand the matter for clarification of the sentence
4
imposed. The State observes that the trial court’s oral sentencing statement was internally
contradictory and was also inconsistent with the Abstract of Judgment and the chronological
case summary. We agree with the State that it is not possible to ascertain what sentence was
in fact imposed upon Davidson. We therefore remand to the trial court for clarification.
Remanded.
MAY, J., and BRADFORD, J., concur.
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