MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Nov 30 2015, 7:43 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
Kevin Wild                                              Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Antwion Carter,                                         November 30, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1503-CR-106
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G01-1307-FA-46672



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015     Page 1 of 18
                                          Statement of the Case
[1]   Antwion Carter (“Carter”) appeals, following a joint jury trial with two co-

      defendants,1 his convictions for Class A felony robbery,2 Class B felony

      robbery,3 Class B felony aggravated battery,4 and two counts of Class D felony

      criminal confinement.5 On appeal, Carter contends that the trial court erred in

      its assignment of aggravating and mitigating circumstances during sentencing.

      Concluding that the trial court did not abuse its discretion when sentencing

      Carter, we affirm his convictions. However, because the sentencing documents

      contained in the record indicate that some of the judgments of conviction were

      incorrectly entered, we remand this case to the trial court with instructions to

      correct these sentencing documents.


[2]   We affirm and remand with instructions to clarify the sentencing documents.


                                                         Issue
               Whether the trial court abused its discretion when sentencing
               Carter.



      1
       Today, we also issue opinions in the appeals of Carter’s co-defendants. See Riley v. State, 49A02-1503-CR-
      151; Belk v. State, 49A05-1503-CR-105.
      2
       IND. CODE § 35-42-5-1. We note that, effective July 1, 2014, a new version of this robbery statute was
      enacted and that Class A felony robbery is now a Level 2 felony. Because Carter committed this crime in
      2013, we will refer to the statute in effect at that time.
      3
       I.C. § 35-42-5-1. Pursuant to the 2014 version of the robbery statute, this Class B felony robbery offense is
      now a Level 3 felony.
      4
        I.C. § 35-42-2-1.5. Pursuant to the 2014 version of the aggravated battery statute, this Class B felony offense
      is now a Level 3 felony.
      5
       I.C. § 35-42-3-3. Pursuant to the 2014 version of the criminal confinement statute, these Class D felony
      offenses are now Level 6 felonies.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015             Page 2 of 18
                                                     Facts
[3]   On July 10, 2013, around 5:00 p.m., Sylvester Kenney (“Kenney”) 6 and

      Michael Spann (“Spann”) were at Spann’s house on North Chester Avenue in

      Indianapolis. Spann did not live in this house but used it to sell marijuana.

      After hearing a knock on the door, Kenney opened it, and Carter entered the

      house. Carter, who was armed with a gun with a laser, pointed it at Kenney

      and told him to get on the floor. Carter hit Spann on the head with the gun and

      told him to also get on the floor. Carter then took money from Kenney and

      Spann. When Spann’s phone rang, Carter grabbed the earpiece from Spann

      and threatened to shoot him in the face if he told someone to come to the

      house.


[4]   Thereafter, Carter went by the window, made a phone call, and said, “I got

      these b****es -- y’all better hurry up.” (Tr. 152). Allen Riley (“Riley”) and

      Troy Belk (“Belk”), who were both armed with guns, entered the house. Belk

      kicked Kenney in the face, demanded money from him, and told Kenney that

      they had his mother and would kill her if he did not reveal the location of the

      money. Kenney, who recognized Belk, asked him, “Troy, why you doin[’] this

      -- Troy --you know I ain’t got no money[.]” (Tr. 165). Belk then grabbed a

      baseball bat that was in Spann’s house and hit Kenney with it several times.

      During this time, Carter continued to keep his gun pointed at Kenney. Riley




      6
          Kenney’s nickname was “Tussy.” (Tr. 71).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015   Page 3 of 18
      unplugged the surveillance cameras and stood over Spann with his gun pointed

      at him. When Spann looked up at Riley, he told Spann that he would shoot

      Spann in the face if Spann looked at him again.


[5]   Thereafter, Carter and Belk dragged Kenney into the kitchen, continued to beat

      him, and asked him where the “stuff” was. (Tr. 264). Riley then grabbed

      Spann by the shirt, dragged him to the kitchen, and continued to hold his gun

      on him. Belk “ra[n]sack[ed]” the kitchen and rummaged through closets while

      Riley kept his gun pointed at Spann. (Tr. 158). Riley said that he had an “itchy

      trigger finger” and cocked his gun. (Tr. 158). At that same time, the doorbell

      rang. Belk and Riley ran to the door while Carter, still armed and pointing his

      gun at Kenney, stayed in the kitchen with Kenney and Spann. Belk said, “open

      the door and let him in -- we gonna kill him with these two.” (Tr. 159).


[6]   At that point, Kenney jumped on Carter and told Spann to run. Kenney

      punched Carter, who then shot Kenney in the face. Spann ran down the hall,

      saw Kenney fall to the ground, and saw a “flame” or a bullet coming toward

      him. (Tr. 161). Spann then dove out the window and ran down the alley,

      yelling repeatedly, “They tryin[’] to kill us.” (Tr. 163). Subsequently, when

      Spann went back to the house to check on Kenney, he saw Kenney on the front

      porch with blood “pouring out of his face[.]” (Tr. 163).


[7]   Later, when officers from the Indianapolis Metropolitan Police Department

      (“IMPD”) arrived on the scene, Spann gave them the name “Troy” as a

      suspect. (Tr. 84, 163, 165). Spann and Kenney were both taken to the hospital,


      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015   Page 4 of 18
      and Kenney was placed into a medically-induced coma. In the days following

      the crimes, IMPD officers investigated the crimes and subsequently showed

      photographic arrays to Kenney and Spann, who identified Carter, Belk, and

      Riley as the perpetrators of the crimes.


[8]   On July 18, 2013, the State charged Carter and Belk in a joint charging

      information, which contained the following counts: Count I, Class B felony

      aggravated battery (of Kenney); Count II, Class C felony battery (of Spann);

      Count III, Class A felony robbery (of Spann); Count IV, Class B felony criminal

      confinement (of Kenney); Count V, Class B felony criminal confinement (of

      Spann); Count VI, Class D felony criminal confinement (of Lacie Willis), and

      Count VII, Class D felony intimidation (of Willis).7 Then, on September 16,

      2013, the State amended the charging information by adding a Class A felony

      robbery (of Kenney) charge and by including Riley’s name in the joint charges.

      Thus, the amended joint information contained ten counts, the following eight

      of which applied to Carter: Count I, Class B felony aggravated battery (of

      Kenney); Count II, Class C felony battery (of Spann); Count III, Class A felony

      robbery (of Spann); Count IV, Class B felony criminal confinement (of

      Kenney); Count V, Class B felony criminal confinement (of Spann); Count VI,




      7
        Count VI and Count VII were charged against Carter only. The record does not reveal how these charges
      involving Willis are related to the offenses on appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015      Page 5 of 18
       Class D felony criminal confinement (of Willis), and Count VII, Class D felony

       intimidation (of Willis); and Count X, Class A felony robbery (of Kenney).8


[9]    In September 2014, while Carter was incarcerated, he told Ronnie Archer

       (“Archer”)—who was in the same cell block as Carter and dated Carter’s

       cousin—about the robbery. According to Archer, Carter told Archer that he

       had shot somebody and “asked [him] how could somebody get shot in the head

       and don’t die.” (Tr. 341). Thereafter, Archer talked to the police about his

       conversation with Carter.


[10]   The trial court held a two-day jury trial on February 2-3, 2015. Prior to trial,

       the State filed an amended charging information for jury purposes. In this joint

       information, the State charged the robbery of Spann as a lesser-included B

       felony; dismissed some of the charges;9 omitted some of the charges, including

       Riley’s charge and enhancement that needed to be bifurcated; and renumbered

       the remaining charges. Thus, for the purposes of trial, the joint charging

       information contained the following charges against Carter: Count I, Class A

       felony robbery (of Kenney); Count II, Class B felony robbery (of Spann); Count

       III, Class B felony aggravated battery (of Kenney); Count IV, Class B felony




       8
         Counts I-V and Count X were charged against Carter, Belk, and Riley. Counts VI and VII were charged
       against Carter only. Count VIII, Class B felony unlawful possession of a firearm by a serious violent felon,
       and Count IX, Class A misdemeanor carrying a handgun without a license with an enhancement to a Class
       C felony based on a prior conviction, were charged against Riley only.
       9
        The State dismissed the Class C felony battery (of Spann) charge against all three co-defendants and the
       Class D felony criminal confinement (of Willis) and the Class D felony intimidation (of Willis) charges
       against Carter.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015           Page 6 of 18
       criminal confinement (of Kenney); and Count V, Class B felony criminal

       confinement (of Spann).


[11]   During the trial, Archer testified that he and Carter had been in the same cell

       block and had talked about “basketball, kids[,]” or “whatever[.]” (Tr. 340).

       Archer also testified that Carter had talked to him about a robbery10 case and

       had told him that he had shot someone. Archer testified that Carter had “asked

       [him] how could somebody get shot in the head and don’t die.” (Tr. 341).


[12]   The jury found Carter guilty of the five counts charged against him. The trial

       court held a joint sentencing hearing for Carter and his two co-defendants.

       When sentencing Carter, the trial court discussed Carter’s criminal history and

       the nature and circumstances of the crime, including Carter’s role in the crimes.

                We move on to Mr. Carter, Mr. Belk, Mr. Riley. I think the
                aggravator for all three of you[] [is] your criminal history. Your
                criminal history hurts. At some point your criminal history
                catches up to you. The facts and circumstances of this case is
                such that the criminal history is an aggravator so your sentences
                will be aggravated. The facts and circumstances of this crime, I
                think, apply to each of you in different and unique ways[,] and
                I’ll try to lay that out and make it as clear as possible . . . The
                facts and circumstances as they apply to you, Mr. Carter -- I do
                view you as the ringleader. I view you as the person who led this
                charge -- maybe with information from Mr. Belk -- maybe Mr.
                Belk plotted it in some manner but I view you as the lead person




       10
          At the beginning of Archer’s testimony, the State initially asked Archer if he had talked to Carter about a
       “burglary” case, (Tr. 340), but when the State asked Archer about Carter’s specific statements, the prosecutor
       referred to a “robbery” case. (Tr. 341).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015           Page 7 of 18
                into that house. I view you as the person who was the prime
                mover, I guess -- the ringleader for lack of a better word. That
                coupled with your criminal history results in -- in you getting a
                sentence that I think is appropriate and that’s a 50 year sentence,
                sir -- it’s 50 years. Final three can be at the community
                corrections component but I think it’s an appropriate sentence for
                you under these facts and circumstances.


[13]   (Tr. 475-76). The trial court ordered that Carter’s sentences on his convictions

       be served concurrently and imposed an aggregate executed sentence of fifty (50)

       years, with forty-seven (47) years in the Department of Correction and three (3)

       years in community corrections.11 Carter now appeals.


                                                       Decision
[14]   Carter argues that the trial court erred when sentencing him. Specifically,

       Carter contends that the trial court abused its discretion by: (1) finding the

       nature and circumstances of the crimes, including his role in the crimes, as an

       aggravator when sentencing him on his Class A felony robbery conviction;12

       and (2) failing to find a hardship to his dependents as a mitigating circumstance.


[15]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d




       11
         Because the record before us reveals some irregularities relating to the sentencing documents, we will
       discuss the specifics of the trial court’s sentencing on each conviction when we address Carter’s sentencing
       argument.
       12
         Carter has specifically limited his sentencing argument and his challenge to the trial court’s application of
       aggravating circumstances to his sentence on Class A felony conviction only.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015             Page 8 of 18
       218 (Ind. 2007). So long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. An abuse of discretion

       will be found where the decision is clearly against the logic and effect of the

       facts and circumstances before the court or the reasonable, probable, and actual

       deductions to be drawn therefrom. Id. A trial court may abuse its discretion in

       a number of ways, including: (1) failing to enter a sentencing statement at all;

       (2) entering a sentencing statement that includes aggravating and mitigating

       factors that are unsupported by the record; (3) entering a sentencing statement

       that omits reasons that are clearly supported by the record; or (4) entering a

       sentencing statement that includes reasons that are improper as a matter of law.

       Id. at 490–91.


[16]   We first turn to Carter’s contention that the trial court abused its discretion by

       using the nature and circumstances of the crimes and his role in those crimes as

       an aggravating circumstance to enhance his sentence on his Class A felony

       robbery conviction. Specifically, Carter takes issue with the trial court’s

       reference to him being the “ringleader” of the crimes. Carter contends that he

       was not the ringleader and that, instead, it was Belk who was the ringleader.

       Thus, he argues that this aggravating circumstance was unsupported by the

       record. We, however, disagree.


[17]   The nature and circumstances of an offense is a proper aggravating factor.

       McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001). Here, the record reveals

       that Carter initiated the actions that resulted in the crimes for which he was

       convicted. He entered Spann’s house with his gun drawn, hit Spann with his

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015   Page 9 of 18
       gun, ordered Kenney and Spann to the ground, and took money from them.

       When Spann’s phone rang, Carter grabbed the earpiece from Spann and

       threatened to shoot him in the face if he told someone to come to the house.

       Carter then phoned Belk and Riley, informing them that he had secured the

       victims and instructing them to come into the house. While Belk beat Kenney

       with a baseball bat, Carter kept his gun pointed at Kenney. Thereafter, Carter

       and Belk dragged Kenney into the kitchen, continued to beat him, and asked

       him where the “stuff” was. (Tr. 264). When Belk and Riley went to answer the

       door, Carter watched over Kenney and Spann in the kitchen and held them at

       gunpoint. Eventually, Carter shot Kenney in the face and shot at Spann as he

       ran away from the scene.


[18]   We find no merit in Carter’s argument that the aggravator was unsupported by

       the record. Indeed, Carter’s challenge to the trial court’s aggravator and

       argument that he was not the ringleader is nothing more than a request to

       review the weight that the trial court applied to this aggravating factor, which

       we will not do. See Anglemyer, 868 N.E.2d at 491 (explaining that relative

       weight given to aggravating and mitigating factors is not subject to review).

       Thus, we conclude that the trial court did not abuse its discretion by

       considering the nature and circumstances of the crimes, including his role in

       those crimes, as an aggravating factor.13




       13
         Carter also suggests that the trial court abused its discretion when sentencing him because his fifty-year
       sentence for his Class A felony robbery conviction is twenty years longer than the maximum sentence for a
       Level 2 felony robbery conviction under the new criminal statutes enacted in July 2014. He contends that

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015          Page 10 of 18
[19]   Turning to Carter’s argument regarding mitigators, we bear in mind that a trial

       court is not obligated to accept a defendant’s claim as to what constitutes a

       mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A

       claim that the trial court failed to find a mitigating circumstance requires the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record. Anglemyer, 868 N.E.2d at 493.


[20]   Carter argues that the trial court should have found a mitigating circumstance

       in the fact that he has children. There is, however, no requirement that a trial

       court find that a defendant’s incarceration would result in undue hardship to his

       dependents. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans.

       denied. As our Indiana Supreme Court has observed, “[m]any persons

       convicted of serious crimes have one or more children and, absent special

       circumstances, trial courts are not required to find that imprisonment will result

       in an undue hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999).

       While Carter is the father of four children, he failed to show that he supported




       change in the statute shows that “[t]he General Assembly clearly believes that a 50 year sentence for Robbery
       is excessive.” (Carter’s Br. 18). We, however, have previously addressed such an argument seeking leniency
       in sentencing based on the revised criminal code and found it to be without merit due to the savings clause
       contained in the revised statutes.

                Specifically, both Indiana Code section 1-1-5.5-21 and section 1-1-5.5-22 state that the new
                criminal code “does not affect: (1) penalties incurred; (2) crimes committed; or (3)
                proceedings begun” before the effective date of the new criminal code sections, i.e., July 1,
                2014. These sections also provide that “Those penalties, crimes, and proceedings continue
                and shall be imposed and enforced under prior law as if [the new criminal code] had not
                been enacted.” And, in no uncertain terms, these sections state: “The general assembly
                does not intend the doctrine of amelioration (see Vicory v. State [272 Ind. 683], 400 N.E.2d
                1380 (1980)) to apply to any SECTION [of the new criminal code].” Id.

       Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (brackets in original), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015           Page 11 of 18
       the children in any manner. Indeed, the record shows that Carter was not

       employed and was receiving public assistance at the time of the offenses and

       that he had not had any taxable income since 2002. The record also shows that

       Carter’s four children, whom he had with four different women, all lived with

       their mothers and that Carter was past due on his child support for these

       children. Because Carter has failed to show that this proffered mitigator was

       significant, the trial court did not abuse its discretion by declining to find it as a

       mitigating circumstance.14 See, e.g., Anglin v. State, 787 N.E.2d 1012, 1018 (Ind.

       Ct. App. 2003) (finding no abuse of discretion where evidence established that

       defendant wished to spend time with his daughter but nothing indicated her

       degree of reliance upon him), trans. denied.


[21]   While we conclude that the trial court did not abuse its discretion when

       imposing the sentence for Carter’s Class A felony robbery conviction, we must

       address some other sentencing irregularities not raised by the parties. First,

       there is a lack of clarity in the trial court’s sentencing documents regarding the

       entry of judgments of conviction and corresponding sentencing. Despite the

       problems with the sentencing documents, the record, however, is clear that the

       jury found Carter guilty as charged in the amended charging information that




       14
          Carter also suggests that the trial court abused its discretion by failing to find his acceptance of
       responsibility as a mitigating circumstance. However, Carter has waived this argument because he failed to
       provide any cogent argument and citation to authority as required by Appellate Rule 46(A)(8)(a). See
       McMahon v. State, 856 N.E.2d 743, 751 (Ind. Ct. App. 2006) (concluding that the defendant waived
       sentencing argument for failure to make a cogent argument).



       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015       Page 12 of 18
       was filed just prior to trial. Specifically, the jury found Carter guilty of: Count

       I, Class A felony robbery (of Kenney); Count II, Class B felony robbery (of

       Spann); Count III, Class B felony aggravated battery (of Kenney); Count IV,

       Class B felony criminal confinement (of Kenney); and Count V, Class B felony

       criminal confinement (of Spann).


[22]   At the sentencing hearing, the trial court discussed how it would possibly

       handle potential double jeopardy concerns with the convictions. Specifically,

       the trial court stated:

               Before we get to argument I just want to get the perspective and I
               should have given all -- all the parties a head’s up on this -- how
               do you view running these counts -- the -- if I’m runnin[g] under
               that A those robberies -- that robbery becomes a C. The
               confinements bump down to D’s and then the agg batt really is --
               is really part of parcel of that A so I don’t know how you view
               the agg batt -- does it reduce to a C or do you think that stands on
               its own?


       (Tr. 442). The prosecutor pointed out that the robbery conviction for the

       robbery of Kenney was a Class A felony conviction and that the robbery

       conviction for the robbery of Spann was a Class B felony conviction. The

       parties then agreed that the Class B felony aggravated battery conviction would

       “disappear” because it was an element of the Class A robbery conviction. (Tr.

       444). The trial court then stated it would “merge 3 into 1 and w[ould] sentence

       on the remaining counts.” (Tr. 445). Thereafter, the trial court orally

       pronounced the sentence on the Class A felony robbery conviction for Carter

       and his co-defendants. For Carter, the trial court imposed a fifty (50) year

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015   Page 13 of 18
       executed sentence, with forty-seven (47) years in the Department of Correction

       and three (3) years in community corrections. The trial court stated that, for

       each of the defendants, it would be ordering the remaining sentences to be

       served concurrently to the sentence on this Class A felony robbery conviction.

       The trial court, however, did not orally pronounce a sentence on the remaining

       counts during the sentencing hearing. Instead, the trial court stated that it

       would “break down all the remaining counts in the sentencing [order] but [that

       it was] running them all as one larger criminal episode[.]” (Tr. 478). The trial

       court stated that while there were “two victims and [it] normally like[d] to

       apportion per victim -- [it would] not in this case.” (Tr. 478-79).


[23]   From reading the transcript of the sentencing hearing, we observe that,

       ultimately, the trial court merged Carter’s Class B felony aggravated battery

       conviction into his Class A felony robbery conviction and imposed a fifty (50)

       year sentence on that Class A felony conviction. A review of the sentencing

       hearing also reveals that the trial court intended to enter sentences on the Class

       B felony criminal confinement convictions as Class D felonies and to enter a

       sentence on the Class B felony robbery (of Spann) conviction. Additionally, as

       discussed above, the trial court stated that it would order all sentences be served

       concurrently.


[24]   However, the sentencing order, abstract of judgment, and chronological case

       summary do not reflect this intended sentencing. Specifically, these court

       documents indicate that the trial court entered the following judgments of

       conviction and imposed the following sentences: (1) robbery of Kenney as a

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015   Page 14 of 18
       Class A felony with a sentence of fifty (50) years; (2) robbery of Spann as a

       Class A felony with a “Finding of Guilty of a Lesser Included” and with a

       sentence of twenty (20) years; (3) Class B felony aggravated battery that was

       “[m]erged” into the Class A felony robbery of Kenney conviction; (4) Class B

       felony criminal confinement of Kenney with a sentence of 545 days; and (5)

       Class B felony criminal confinement of Spann with a sentence of 545 days.

       (App. 15, 17).


[25]   These sentencing documents, therefore, have three issues that need to be

       corrected. First, in regard to the trial court’s act of merging the Class B felony

       aggravated battery into the Class A felony robbery, which were convictions for

       which the trial court seems to have entered judgments of conviction, we note

       that “[a] trial court’s act of merging, without also vacating the conviction, is not

       sufficient to cure a double jeopardy violation” and that such a violation cannot

       be remedied by the “practical effect” of merging after a conviction has been

       entered. Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans.

       denied. See also Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (explaining that

       “a merged offense for which a defendant is found guilty, but on which there is

       neither a judgment nor a sentence, is ‘unproblematic’ as far as double jeopardy

       is concerned”). Because it appears from the record that the trial court entered

       judgment of conviction on Class B felony aggravated battery prior to merging

       this conviction, we remand this cause to the trial court with instructions to

       vacate Carter’s judgment of conviction on this offense.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015   Page 15 of 18
[26]   Second, the trial court’s sentencing documents need to be corrected to reflect

       that Carter was convicted of robbery of Spann as a Class B felony. Prior to the

       commencement of trial, the robbery charge against Spann was amended to a

       Class B felony charge. The jury found Carter guilty of this robbery as Class B

       felony, and the trial court sentenced him on the conviction to twenty years.

       However, the sentencing documents indicate that the judgment of conviction

       was entered as a Class A felony. Thus, the abstract of judgment, sentencing

       order, and chronological case summary should be corrected to reflect that the

       judgment of conviction of this robbery of Spann was entered as a Class B

       felony.


[27]   Third, the trial court’s sentencing documents need to be corrected to reflect that

       the trial court entered judgments of conviction on the criminal confinement

       convictions as Class D felonies instead of Class B felonies. While the jury

       found Carter guilty of these criminal confinement convictions as Class B

       felonies, the trial court sentenced him on these as Class D felonies due to

       double jeopardy concerns and imposed a sentence of 545 days on each

       conviction. However, the sentencing documents indicate that the judgments of

       conviction on these criminal confinement offenses were entered as Class B

       felonies. The entry of judgment of conviction as a Class B felony with a

       sentence of 545 days is contrary to the statutory sentencing range set forth for a

       Class B felony. See IND. CODE § 35-50-2-5 (providing that the sentencing range

       for a Class B felony is between six (6) and twenty (20) years). Thus, the abstract

       of judgment, sentencing order, and chronological case summary should be


       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015   Page 16 of 18
       corrected to reflect that the judgments of conviction for these criminal

       confinement offenses were entered as Class D felonies.


[28]   In summary, the sentencing order, abstract of judgment, and chronological case

       summary should be corrected to reflect that: (1) the Class B felony aggravated

       battery conviction was vacated; (2) Carter was convicted of robbery of Spann as

       a Class B felony and that the trial court entered judgment of conviction as a

       Class B felony; and (3) the trial court entered judgments of conviction and

       sentences on the criminal confinement convictions as Class D felonies instead

       of Class B felonies.15


[29]   Finally, we express our concern with the trial court’s failure to impose and

       pronounce sentencing on all of Carter’s convictions 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



       15
          Additionally, we note that the abstract of judgment and sentencing order contain all original charges filed
       against Carter, even though three of the charges was ultimately dismissed. We acknowledge that the abstract
       of judgment form, which indicates that it is a “State Form” from the Indiana Department of Correction,
       appears to add to the confusion in the sentencing documents. (App. 18). The abstract of judgment form, in
       Part I, requires a trial court list the “charge[s]” against a defendant, instead of the convictions. (App. 18).
       Then, Part II of the form requires the trial court to list the sentences “[a]s a result of the above convictions[.]”
       (App. 18). However, the charges listed in Part I are not convictions. Because this abstract of judgment form
       is used by the Department of Correction for incarceration duration and subsequent release date information,
       only the actual judgments of conviction and resulting sentences are relevant.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015               Page 17 of 18
               statement. Sentence shall then be pronounced, unless a sufficient cause is
               alleged or appears to the court for delay in sentencing.


[30]   (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 “break down all the remaining counts in the sentencing” order.

       (Tr. 478). At the same time, the parties did not object when the trial court

       failed to pronounce the remaining sentencing during the hearing. Therefore, we

       will not remand for a new sentencing hearing. However, we would encourage

       the trial court, for all future sentencing, to pronounce sentencing on all

       convictions during a sentencing hearing in accordance with INDIANA CODE §

       35-38-1-5.


[31]   Affirmed and remanded with instructions.


       Vaidik, C.J., concurs.


       Robb, J., concurs in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-106 | November 30, 2015   Page 18 of 18
