Patrick W. Scholl v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 15 2021, 8:57 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
Christopher J. Petersen Theodore E. Rokita
Goshen, Indiana Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Patrick W. Scholl, January 15, 2021
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1282
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Charles C. Wicks,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D05-1602-F5-31
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Patrick Scholl (Scholl), appeals the trial court’s nunc pro
tunc order correcting his sentence.
[2] We affirm.
ISSUE
[3] Scholl raises one issue on appeal, which we restate as: Whether the trial court
erred when it issued a nunc pro tunc entry to correct a clerical error in Scholl’s
prior sentencing order.
FACTS AND PROCEDURAL HISTORY
[4] On February 5, 2016, the State filed an Information in Cause number 1602-F5-
31 (F5-31), charging Scholl with Level 5 felony habitual traffic violator and
Class A misdemeanor resisting law enforcement. On April 3, 2017, Scholl
pleaded guilty to the charges, and on July 31, 2017, the trial court sentenced
Scholl to the Department of Correction (DOC) to serve concurrent terms of five
years as to the Level 5 felony and 360 days as to the Class A misdemeanor.
[5] On August 10, 2017, Scholl sought to have his sentence modified to work
release with GPS monitoring, but was denied. On November 30, 2017, Scholl
again sought to have his sentence modified to work release with GPS
monitoring. Although the trial court denied Scholl’s request, it stated that it
would consider modifying Scholl’s sentence after it received a progress report
from the DOC. The trial court received Scholl’s progress report on December
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28, 2017. On March 19, 2018, the trial court held a modification hearing. The
trial court subsequently granted Scholl’s request and ordered the balance of
Scholl’s sentence “to be executed with alternative placement [] at Elkhart
County Community Corrections” (ECCC). (Appellant’s App. Vol. II, p. 91).
The trial court also ordered Scholl, who had issues with his eye and required
surgery, to resolve his medical problems before reporting to ECCC. On May
14, 2018, Scholl filed a motion to modify his sentence to probation and stated
that his medical appointments would overlap with his commitment to ECCC.
On June 13, 2018, the trial court vacated Scholl’s obligation to report to ECCC
and scheduled a modification hearing. October 8, 2018, the trial court
postponed Scholl’s report date to the ECCC. On November 26, 2018, the trial
court held another modification hearing and ordered Scholl to report to the
ECCC on February 6, 2019. However, Scholl failed to report as directed.
[6] On April 15, 2019, the trial court held a violation hearing and directed the
Sheriff to transport Scholl to the Elkhart County Jail for the execution of his
sentence. On July 31, 2019, ECCC notified the trial court that Scholl broke his
pelvis and hip joint socket while at work and that Scholl would require
rehabilitative care of about six months. On August 5, 2019, the trial court
ordered Scholl to be released from custody.
[7] On December 16, 2019, the trial court conducted a modification hearing. Over
the State’s objection, Scholl orally moved for alternative placement, i.e., to serve
the remainder of his aggregate five-year sentence in F5-31 either on work
release or probation. The trial court granted Scholl’s request and ordered him
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to serve his sentence on work release through Michiana Community
Corrections (MCC). While issuing that order, the trial court reiterated that
Scholl’s sentence is five years as to the Level 5 felony habitual traffic violator
and 360 days as to the Class A misdemeanor resisting law enforcement. The
modification order and chronological case summary (CCS) of that hearing,
however, stated that Scholl’s sentence for the Level 5 felony is 540 days instead
of five years.
[8] On January 24, 2020, Scholl reported to MCC to begin his work release. On
February 27, 2020, MCC filed a notice alleging that Scholl had violated the
conditions of his work release for failing a drug screen, failing to obtain and
maintain employment, and leaving his home without authorization. A
violation hearing was held on April 20, 2020, and Scholl admitted the
violations. During the hearing, the trial court was confused by why Scholl’s
sentence for the Level 5 felony habitual traffic violator was changed from five
years to 540 days. The trial court then stated that it wanted to “listen to the
transcript” of the December 16, 2019 sentence modification hearing because
there were no “notes on the CCS as to why that was done.” (Transcript p. 28).
[9] On May 4, 2020, the trial court conducted a hearing to determine Scholl’s credit
time with respect to his sentence. At the start of that hearing, the trial court
stated that it had listened to the December 16, 2019 sentence modification
transcript, and the court reporter had confirmed there was a clerical error on the
CCS because the trial court had not modified Scholl’s Level 5 felony sentence
from five years to 540 days. Scholl objected to the trial court issuing a nunc pro
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tunc order to correct the error, and following arguments from the parties, the
trial court found that a nunc pro tunc order was proper under the circumstances
to correct that “clerical error.” (Appellant’s App. Vol. II, p. 165).
[10] Scholl now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
[11] Our supreme court has defined a nunc pro tunc order as “‘an entry made now of
something which was actually previously done, to have effect as of the former
date.’” Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995) (quoting Perkins v.
Hayward, 132 Ind. 95, 101, 31 N.E. 670, 672 (1892)). Such entries may be used
to either record an act or event not recorded in the court’s order book or change
or supplement an entry already recorded in the order book. Id. Its purpose is
“‘to supply an omission in the record of action really had, but omitted through
inadvertence or mistake.’” Id. (quoting Perkins, 132 Ind. at 101, 31 N.E. at
672). That is, the trial court’s record must show that the unrecorded act or
event actually occurred. Id. Our supreme court “has required that a written
memorial must form the basis for establishing the error or omission to be
corrected by the nunc pro tunc order.” Id.; see also Arsenal Sav. Ass’ n v. Westfield
Lighting Co., 471 N.E.2d 322, 326 (Ind. Ct. App. 1984) (“The crux of a nunc pro
tunc entry, then, is that the trial court corrects the record on the basis of
information which is already in the record. It is not [a] license to make judicial
changes in the actual law or ruling of the case.”). Nunc pro tunc “‘entries may be
made only upon notice to the parties and an opportunity of the parties to be
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heard on the matter.’” Anderson v. Horizon Homes, Inc., 644 N.E.2d 1281, 1287
(Ind. Ct. App. 1995) (quoting Stowers v. State, 266 Ind. 403, 411, 363 N.E.2d
978, 983 (1977)), trans. denied.
[12] Scholl contends that the trial court erred in issuing the nunc pro tunc order
because “there does not exist any written memorial that an error occurred
which could allow for a [nunc pro tunc] order or entry.” (Appellant’s Br. p. 11).
We disagree. The record shows that at the December 16, 2019 sentence
modification hearing, due to health issues, Scholl requested an alternative
placement, i.e., to serve his aggregate five-year sentence either on work release
or probation. The trial court granted his request and ordered him to serve his
sentence on work release through MCC. At no point during that hearing did
Scholl request a sentence reduction, and at no point did the trial court direct
that his sentence be reduced. In fact, contemporaneous to that modification
order, the trial court reiterated in open court that Scholl’s sentence in F5-31 is
five years for the Level 5 felony and 360 days for the Class A misdemeanor.
[13] Contrary to Scholl’s claim, the December 16, 2019 hearing in which the trial
court considered Scholl’s alternative placement request was transcribed and
memorialized. See Stowers, 363 N.E.2d at 983-84 (holding that the transcript of
a guilty plea proceeding formed a sufficient basis for making a nunc pro tunc
order book entry clarifying that the plea was conditionally received, not
accepted). Accordingly, we cannot say that the trial court erred by concluding
that the entry of the nunc pro tunc order was proper in this case. See, e.g., Cotton,
658 N.E.2d at 901 (holding that the trial court’s nunc pro tunc entries were
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supported by sufficient written memorials and that they served “to make the
record speak the truth”).
CONCLUSION
[14] Based on the foregoing, we hold that the trial court did not err in issuing the
nunc pro tunc order to correct a clerical error in Scholl’s prior sentencing order.
[15] Affirmed.
[16] Najam, J. and Crone, J. concur
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