MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jul 17 2019, 10:10 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Talisha Griffin                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kristin M. Hoffman,                                       July 17, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-184
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G06-1807-F5-24208



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019                   Page 1 of 9
                                         Statement of the Case
[1]   Kristin Hoffman (“Hoffman”) appeals, following a bench trial, her sentence for

      Level 5 felony domestic battery,1 Class A misdemeanor battery resulting in

      bodily injury,2 and Class B misdemeanor criminal mischief.3 Hoffman contends

      that a remand to correct the written sentencing order and the abstract of

      judgment is necessary because: (1) the one-year sentence imposed for her Class

      B misdemeanor conviction exceeds the maximum statutory penalty for a Class

      B misdemeanor; and (2) the trial court’s failure to pronounce a sentence on her

      misdemeanor convictions during the sentencing hearing was contrary to

      INDIANA CODE § 35-38-1-5. The State agrees that a remand is necessary, as do

      we. Accordingly, we remand this case to the trial court to correct the written

      sentencing documents, including the sentencing order, abstract of judgment,

      and chronological case summary (“CCS”).


[2]   We remand.


                                                        Issue
                      Whether this case should be remanded for correction of the
                      written sentencing documents.




      1
       IND. CODE § 35-4-2-1.3. We note that our legislature amended this statute in the recent 2019 session;
      however, that recent amendment does not affect this appeal.
      2
          I.C. § 35-42-2-1.
      3
          I.C. § 35-43-1-2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019                     Page 2 of 9
                                                      Facts
[3]   In December 2018, the trial court held a bench trial and found Hoffman guilty

      of Level 5 felony domestic battery, Class A misdemeanor battery resulting in

      bodily injury, and Class B misdemeanor criminal mischief. These convictions

      were based on Hoffman’s acts of going to the house of her married boyfriend

      and his wife, striking the boyfriend and his wife, and breaking a window at the

      house. Hoffman had been in a relationship with the boyfriend for over nine

      years and given birth to his child a few months before the offenses.


[4]   The trial court held Hoffman’s sentencing hearing in this cause, 49G06-1807-

      F5-024208 (“Cause 208”), in conjunction with sentencing in another cause,

      49G06-1809-F6-033252 (“Cause 253”). In Cause 253, Hoffman had been

      found guilty of Class A misdemeanor domestic battery, which had occurred

      when she was out on bond in this underlying Cause 208. 4 At the beginning of

      the sentencing hearing, the trial court and the parties discussed that Hoffman’s

      convictions in Causes 208 included her three convictions of Level 5 felony

      domestic battery, Class A misdemeanor battery resulting in bodily injury, and

      Class B misdemeanor criminal mischief.


[5]   During the sentencing hearing, Hoffman’s counsel made a general argument in

      relation to sentencing for the two causes, stating that Hoffman had been denied




      4
       In Cause 253, Hoffman was originally charged with Level 6 felony domestic battery and Class A
      misdemeanor battery.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019                     Page 3 of 9
      entry into a Community Corrections program and requesting that, “in light of

      that to maybe forego a home detention sentence and place [Hoffman] on

      probation for a significant amount of time[.]” (Tr. Vol. 2 at 79). The State

      made two separate requests for sentencing, which corresponded to the two

      pending causes. In regard to Cause 208, the State requested “for however the

      Court want[ed] to put it together, a five-year total sentence with 545 days

      executed” with “the amount of time that would be spent in the Department of

      Correction[] to the Court’s discretion.” (Tr. Vol. 2 at 80). In regard to Cause

      253, the State noted that the domestic battery conviction was against Hoffman’s

      mother and that she had “picked up th[is] second case” not long after she had

      been released in Cause 208, the cause currently being appealed. (Tr. Vol. 2 at

      80). The State argued that “[a]s to the battery, 365 days, [it] would not object to

      a time-served on that, even though it would be consecutive[,]” and it asked that

      “all time since the re-arrest on the new case would go towards the 365 day -- the

      misdemeanor conviction.” (Tr. Vol. 2 at 81).


[6]   Before imposing Hoffman’s sentences, the trial court took time to discuss with

      Hoffman how she could improve the circumstances in her life. The trial court

      addressed her “mental health challenges[,]” which included depression, and

      encouraged Hoffman to free herself from her “unhealthy” domestic relationship

      with her married boyfriend. (Tr. Vol. 2 at 81). Thereafter, the trial court

      pronounced sentencing in Cause 208, stating, “as to the domestic battery, the

      Level 5 offense, the Court is going to sentence you to a period of five years[,]

      and I’m going to suspend all of it. I am going to place you on probation for a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019   Page 4 of 9
period of two years.” (Tr. Vol. 2 at 83). The trial court found Hoffman to be

indigent for fines and costs. Moving to sentencing in Cause 253, the trial court

stated, “As to the misdemeanor charge, the Court will give you 365 days. I

think I have to run that misdemeanor -- do I have to run the misdemeanor

consecutively?” (Tr. Vol. 2 at 84). After Hoffman’s counsel and the prosecutor

agreed that the sentence had to be served consecutively, the trial court stated:


        So I’ll run it consecutively to the five years. Because she has
        significant time on that already, whatever time she has in jail, I’ll
        find her time served on that and that will close that case out. No
        fines and costs. I’m finding her indigent as to these fines and
        costs. I am finding you indigent as to the first year of your
        probation fees because I want whatever. . . money you make, in
        terms of your probation fees, to go towards getting yourself back
        on your feet. . . . Paying for whatever medication that you might
        need in terms of your depression, and paying for your child. . . .
        [T]he only thing you do have, you do have $100 administrative
        fee. That takes care of the salary structure of the probation
        department, so I am ordering that, but you don’t -- in terms of the
        first year of probation fees, she has no fees on that. And
        whatever -- she should be on a sliding fee schedule, and to the
        extent if you can’t pay your fees, you never go to jail for being
        poor.

(Tr. Vol. 2 at 85). The trial court then asked the State and Hoffman’s counsel if

there was “[a]ny legal defect in the sentencing[?]” and both parties stated,

“No[.]” (Tr. Vol. 2 at 86). Hoffman’s counsel informed the trial court that

Hoffman wished to “appeal the Level 5 case[,] . . . the one ending in 208” but

“not on the Level 6” case, which was Cause 253. (Tr. Vol. 2 at 87).




Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019   Page 5 of 9
[7]   Following the sentencing hearing, the trial court issued a sentencing order and

      an abstract of judgment in Cause 208. These documents indicate that the trial

      court imposed a one-year sentence for both Hoffman’s Class A misdemeanor

      battery resulting in bodily injury convictions and her Class B misdemeanor

      criminal mischief conviction and that it ordered Hoffman to serve these two

      misdemeanor sentences concurrently to her sentence on her Level 5 felony

      domestic battery conviction.5 Hoffman now appeals.


                                                    Decision
[8]   Here, the written sentencing documents reveal that, for Hoffman’s three

      convictions, the trial court imposed an aggregate five-year suspended sentence

      with two years of probation. Hoffman asserts that this case should be

      remanded so that the trial court can correct the written sentencing documents.

      Specifically, Hoffman contends that the written sentencing order and the

      abstract of judgment contain a “scrivener’s error” and that remand is necessary

      because: (1) the trial court’s failure to pronounce a sentence on her

      misdemeanor convictions during the sentencing hearing was contrary to

      INDIANA CODE § 35-38-1-5;6 and (2) the one-year sentence imposed for her




      5
       The CCS also indicates that the trial court imposed a one-year sentence for both Hoffman’s Class A
      misdemeanor and Class B misdemeanor convictions.
      6
        Hoffman and the State assert that the trial court’s imposition of the one-year misdemeanor sentence during
      the sentencing hearing was for Hoffman’s Class A misdemeanor battery conviction in this case, Cause 208.
      However, a review of the sentencing hearing reveals the trial court did not orally pronounce a sentence on
      Hoffman’s two misdemeanor convictions in Cause 208 and that the one-year misdemeanor sentence imposed
      was for Hoffman’s Class A misdemeanor domestic battery conviction in Cause 253, which she is not
      appealing.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019                     Page 6 of 9
      Class B misdemeanor conviction exceeds the maximum statutory penalty for a

      Class B misdemeanor. 7 (Hoffman’s Br. 13). The State agrees that a remand is

      necessary.


[9]   We agree with the parties that remand is necessary for the trial court to correct

      the sentence imposed on Hoffman’s Class B misdemeanor criminal mischief

      conviction. The trial court’s imposition of a one-year sentence for the Class B

      misdemeanor is contrary to the statutory sentencing range for a Class B

      misdemeanor. See IND. CODE § 35-50-3-3 (providing that the sentencing range

      for a Class B misdemeanor is “not more than one hundred eighty (180) days”).

      Thus, the sentencing documents—including the sentencing order, abstract of

      judgment, and CCS—should be corrected to reflect a sentence of not more than

      180 days. Accordingly, we remand to the trial court for correction of the

      sentencing documents.8




      7
        Hoffman also argues that this case should be remanded because the trial court’s mention of a sliding scale
      during the sentencing hearing equated to an improper delegation of authority to the probation department to
      impose probation fees. Hoffman suggests that the trial court’s reference to a sliding scale “implies that it will
      not set the fee schedule.” (Hoffman’s Reply Br. 4). The State asserts that Hoffman’s claim regarding the
      sliding fee schedule is “premature” and “speculative” as no probation fees have been imposed nor may ever
      be imposed on Hoffman during her second year of probation. As such, the State contends that her argument
      is not ripe for review. We agree and will not address this argument. See Indiana Dep’t of Envtl. Mgmt. v. Chem.
      Waste Mgmt., Inc.,643 N.E.2d 331, 336 (Ind. 1994) (“Ripeness relates to the degree to which the defined
      issues in a case are based on actual facts rather than on abstract possibilities, and are capable of being
      adjudicated on an adequately developed record.”).
      8
        We note that the abstract of judgment and sentencing order contain differing amounts of suspended time
      on Hoffman’s three sentences. Hoffman contends that the abstract of judgment entered by the trial court
      “reflects what the trial court intended to impose” with exception of the one-year sentence imposed for her
      Class B misdemeanor. (Hoffman’s Br. 13 n.9). When the trial court corrects the sentencing documents on
      remand, it should ensure that the applicable credit time is consistently reflected among the documents.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019                         Page 7 of 9
[10]   Additionally, our review of the record reveals that the trial court failed to

       pronounce a sentence on Hoffman’s two misdemeanor convictions in this case

       during the sentencing hearing. INDIANA CODE § 35-38-1-5 provides:


               When the defendant appears for sentencing, the court shall
               inform the defendant of the verdict of the jury or the finding of
               the court. The court shall afford counsel for the defendant an
               opportunity to speak on behalf of the defendant. The defendant
               may also make a statement personally in the defendant’s own
               behalf and, before pronouncing sentence, the court shall ask the
               defendant whether the defendant wishes to make such a
               statement. Sentence shall then be pronounced, unless a sufficient cause is
               alleged or appears to the court for delay in sentencing.


       (Emphasis added). The record does not reveal “a sufficient cause” for the

       delayed pronouncement of sentencing as the parties did not request a delay in

       the pronouncement of sentencing nor did the trial court provide a reason why it

       was waiting to set forth Hoffman’s misdemeanor sentences in the written

       sentencing order and abstract of judgment. However, the parties did not object

       when the trial court failed to pronounce the two sentences during the hearing.

       In fact, the parties agreed that there were no legal defects in the trial court’s oral

       sentencing made during the hearing. Therefore, we will remand for correction

       of the written sentencing documents but not for a new sentencing hearing. See

       Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct. App. 1998) (explaining that, in

       relation to a defendant’s rights under INDIANA CODE § 35-38-1-5, a defendant

       “may not sit idly by, permit the court to act in a claimed erroneous manner, and

       then attempt to take advantage of the alleged error at a later time” and that the

       failure to object results in waive of any alleged error under the statute).
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019     Page 8 of 9
[11]   Remanded.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-184 | July 17, 2019   Page 9 of 9
