MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                       Nov 30 2015, 7:28 am
this Memorandum Decision shall not be
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
Hilary Bowe Ricks                                       Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General of Indiana
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Allen Riley,                                            November 30, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1503-CR-151
        v.                                              Appeal from the Marion Superior
                                                        Court, Criminal Division 1
State of Indiana,                                       The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G01-1308-FA-051528



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015       Page 1 of 23
                                          Statement of the Case
[1]   In this appeal, Allen Riley (“Riley”) 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 unlawful possession of a firearm by a serious violent

      felon,4 Class B felony aggravated battery,5 two counts of Class D felony

      criminal confinement,6 and Class A misdemeanor carrying a handgun without a

      license.7 On appeal, Riley contends that the trial court erred by denying his

      motion to separate his trial from one of his co-defendants. Specifically, he

      contends that he was prejudiced by testimony regarding his co-defendant’s out-

      of-court statement. Because the co-defendant’s out-of-court statement referred

      only to the co-defendant’s actions and did not reference or implicate Riley, we

      conclude that the trial court did not abuse its discretion by denying Riley’s

      motion for a separate trial, and we affirm Riley’s convictions. However,




      1
       Today, we also issue opinions in the appeals of Riley’s co-defendants. See Belk v. State, 49A05-1503-CR-
      105; Carter v. State, 49A04-1503-CR-106.
      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 Riley 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. § 35-47-4-5. Pursuant to the 2014 version of the unlawful possession of a firearm by a serious violent
      felon statute, this Class B felony offense is now a Level 4 felony.
      5
        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.
      6
       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.
      7
          I.C. § 35-47-2-1.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015             Page 2 of 23
      because the sentencing documents contained in the record indicate that 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 by denying Riley’s
                 motion for a separate trial from one of his co-defendants.

                                                         Facts8
[3]   On July 10, 2013, around 5:00 p.m., Sylvester Kenney (“Kenney”) 9 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 Antwion Carter

      (“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.




      8
        Riley does not challenge the sufficiency of the evidence supporting his convictions; therefore, we will not
      include a detailed recitation of the facts of his offenses.
      9
          Kenney’s nickname was “Tussy.” (Tr. 71).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015            Page 3 of 23
[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). 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 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,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 4 of 23
      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).


[7]   Later, when officers from 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,

      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 August 7, 2013, the State charged Riley, individually, with seven counts.

      Then, on September 16, 2013, the State amended the charging information by

      including an additional count against Riley and by combining it with Carter

      and Belk’s previously filed joint charging information. Thus, the amended joint

      information contained ten counts, eight of which applied to Riley: 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 VIII, Class B felony unlawful possession of a

      firearm by a serious violent felon; Count IX, Class A misdemeanor carrying a




      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 5 of 23
       handgun without a license with an enhancement to a Class C felony based on a

       prior conviction; and Count X, Class A felony robbery (of Kenney).10


[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]   On October 20, 2014, Belk filed a “Motion for Severance from Co-Defendant,”

       in which he sought a trial separate from Carter.11 (App. 72). In the motion,

       Belk asserted that the State was planning to introduce, in the joint trial, a letter

       that was purportedly written by Carter and that contained incriminating

       statements he had made.12 In this letter, which Carter was alleged to have sent

       from jail, he asked someone to kidnap Kenney’s mother in an effort to keep

       Kenney from testifying at the joint trial. The letter provided, in part, that

       “[s]omebody got to grab her [Kenney’s mother] up and hold her until we go to




       10
          Counts I-V and Count X were charged against Riley, Carter, and Belk. Counts VIII and IX were charged
       against Riley only. Count VI, Class D felony criminal confinement (of Lacie Willis), and Count VII, Class D
       felony intimidation (of Willis), were charged against Carter only.
       11
         The parties refer to this motion and the motion made at trial as a motion to sever or a motion for
       severance. Because these motions are actually motions for a separate trial from Carter—as opposed to a
       motion for severance of offenses—we will refer to the motions as motions for a separate trial. Compare I.C. §
       35-34-1-11(a) (relating to severance of offenses for one defendant) with I.C. § 35-34-1-11(b) (relating to
       separate trials for defendants).
       12
            As a result of this letter, Carter was later charged with attempted kidnapping.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015          Page 6 of 23
       trial to make sure that he [Kenney] don’t come because he been coming and he

       gonna keep coming unless we get her tied up somewhere and then we know we

       good at trial.” (Ex. Vol. at 57). The letter also stated, “His mother is the key to

       freeing us.” Id. Belk argued that admission of the letter in a joint trial with

       Carter would be prejudicial and would constitute a violation of his Sixth

       Amendment rights pursuant to Bruton v. United States, 391 U.S. 123 (1968).13

       Riley joined in the motion for a separate trial.


[11]   On January 30, 2015, the trial court held a final pre-trial hearing, which

       included argument on the motion for a separate trial. Riley and Belk argued

       that the admission of the letter would create a Bruton issue due to Carter’s

       reference to “we” and “us” contained in the letter and their inability to cross-

       examine Carter. (Tr. 494-97). The trial court ruled that the letter would not be

       admissible, and it denied Belk and Riley’s joint motion for a separate trial.


[12]   This pre-trial hearing was held on the Friday before the Monday trial. At the

       end of this hearing, the prosecutor, who had originally listed Archer on the

       State’s witness list, told the trial court and the defendants that the State was not

       planning on calling Archer as a witness. However, during the weekend, the

       prosecutor contacted the defendants’ attorneys to notify them that the State was

       going to call Archer as a witness.



       13
          In Bruton, “the United States Supreme Court held that in a joint trial, admission of one defendant’s
       confession that implicates another defendant is a violation of the second defendant’s Sixth Amendment right
       to confront witnesses.” Fayson v. State, 726 N.E.2d 292, 294 (Ind. 2000) (citing Bruton, 391 U.S. at 124-26).
       Because “[t]he confessing defendant cannot be required to take the stand, . . . the result is a denial of the
       other defendant’s right to cross-examine.” Id. (citing Bruton, 391 U.S. at 137).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015          Page 7 of 23
[13]   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; omitted some of the charges, including the 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

       seven charges: 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); Count V,

       Class B felony criminal confinement (of Spann); and Count VI, Class A

       misdemeanor carrying a handgun without a license. 14


[14]   Before the jury trial commenced, the State discussed its plan to present Archer

       as a witness. The prosecutor stated that Archer was not going to testify about

       the excluded letter and that, instead, he would “talk about conversations he had

       directly with Antwion Carter [while in jail] about Antwion Carter’s case only

       and none of the other co-defendants.” (Tr. 5). Riley then made an oral motion

       to separate his trial from Carter’s trial. Riley acknowledged that Archer’s

       testimony regarding Carter’s out-of-court statement would “go[] only to Mr.

       Carter,” but he argued that the testimony would be prejudicial. (Tr. 6). In the

       alternative, Riley sought to exclude Archer’s testimony regarding Carter’s




       14
         All six counts were against Riley, while Counts I-V were against Carter and Belk. The State also dismissed
       the Class C felony battery (of Spann) charge against all the parties and the Class D felony criminal
       confinement and the Class D felony intimidation charges against Carter.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015         Page 8 of 23
       statement. Belk joined in Riley’s oral motion for a separate trial. Belk also

       acknowledged that Archer’s proposed testimony would “not speak of Troy Belk

       in any way” and that there “wo[uld]n’t be an issue in regard to that[.]” (Tr. 6).

       Belk asked that he have a joint trial with Riley that was separate from Carter’s

       trial. Riley’s counsel argued that the defendants had just learned during the

       previous weekend that Archer’s testimony was going to include the statement

       that Carter had asked how a person could get shot in the head and live. The

       State argued that Archer was a known witness and that the trial court could

       give a limiting instruction to the jury to inform them that Carter’s statements

       could be used only against Carter and not against the other co-defendants. The

       trial court denied Riley and Belk’s oral motion for a separate trial, finding that

       Carter’s statement was a statement against his interest and that it was “not . . .

       prejudicial such that it should be excluded.” (Tr. 11). The trial court stated that

       it could provide a limiting instruction if Riley and Belk wanted one.


[15]   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 robbery15 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).




       15
          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 49A02-1503-CR-151 | November 30, 2015           Page 9 of 23
       None of the defendants objected to Archer’s testimony. Neither Riley’s

       attorney nor Belk’s attorney cross-examined Archer.


[16]   The trial court gave the following preliminary and final jury instruction:


               You should give separate consideration to each accused. Each is
               entitled to have his case decided on the evidence and the law that
               applies to him. Any evidence which is limited to one accused
               must not be considered by you as to any other accused.


       (App. 90) (capitalization of some letters put into lower case).


[17]   The jury found Riley guilty as charged. Riley waived his right to a jury trial on

       the bifurcated charges of Class B felony unlawful possession of a firearm by a

       serious violent felon and the Class C felony enhancement to the carrying a

       handgun without a license charge. During a subsequent bench trial, the trial

       court found Riley guilty of the Class B felony unlawful possession of a firearm

       by a serious violent felon charge, and the State dismissed the Class C felony

       enhancement.


[18]   The trial court held a joint sentencing hearing for Riley and his two co-

       defendants. The trial court ordered that Riley’s sentences on his convictions be

       served concurrently and imposed an aggregate executed sentence of thirty-five

       (35) years, with thirty-two (32) years in the Department of Correction and three




       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 10 of 23
       years in community corrections.16 Riley now appeals the trial court’s denial of

       his motion for a separate trial.


                                                      Decision
                                           Motion for a Separate Trial

[19]   Riley argues that the trial court erred by denying his motion for a trial separate

       from Carter.


[20]   A defendant has “no absolute right to a separate trial[.]” Rouster v. State, 705

       N.E.2d 999, 1004 (Ind. 1999) (citing Lampkins v. State, 682 N.E.2d 1268

       (Ind.1997), modified on reh’g by 685 N.E.2d 698 (Ind. 1997)), reh’g denied.

       INDIANA CODE § 35-34-1-9 permits the joinder of two or more defendants in a

       single prosecution. See also Lampkins, 682 N.E.2d at 1272. INDIANA CODE §

       35-34-1-11(b), however, allows a defendant to move for a separate trial. This

       statutory provision pertaining to a separation of trials for co-defendants

       provides:

                Whenever two (2) or more defendants have been joined for trial
                in the same indictment or information and one (1) or more
                defendants move for a separate trial because another defendant
                has made an out-of-court statement which makes reference to the
                moving defendant but is not admissible as evidence against him,
                the court shall require the prosecutor to elect:




       16
         Because the record before us reveals numerous irregularities relating to sentencing, we will discuss the
       specifics of the trial court’s sentencing after we address Riley’s issue raised on appeal.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015          Page 11 of 23
                        (1) a joint trial at which the statement is not admitted
                        into evidence;

                        (2) a joint trial at which the statement is admitted
                        into evidence only after all references to the moving
                        defendant have been effectively deleted; or

                        (3) a separate trial for the moving defendant.

                 In all other cases, upon motion of the defendant or the prosecutor, the
                 court shall order a separate trial of defendants whenever the court
                 determines that a separate trial is necessary to protect a defendant’s right
                 to a speedy trial or is appropriate to promote a fair determination of the
                 guilt or innocence of a defendant.


       I.C. § 35-34-1-11(b) (emphasis added). Here, there is no dispute that the latter

       part of the statute is applicable to the facts of this case. Indeed, the challenged

       testimony did not “make reference” to Riley; therefore, the first part of the

       statute, which sets forth the three options for the prosecutor, is not implicated.

       See id.


[21]   “The trial court has discretion to grant or deny a motion for separate trials.”

       Lee v. State, 684 N.E.2d 1143, 1147 (Ind. 1997) (citing Gordon v. State, 609

       N.E.2d 1085, 1088 (Ind. 1993); Underwood v. State, 535 N.E.2d 507, 514 (Ind.

       1989), cert. denied, reh’g denied). “An abuse of discretion occurs when a court

       denies a defendant’s properly filed motion for separate trials and the parties’

       defenses are mutually antagonistic to such a degree that acceptance of one

       party’s defense precludes the acquittal of the other.” Rouster, 705 N.E.2d at

       1004 (citing Lampkins, 682 N.E.2d 1272). “The soundness of the trial court’s

       discretion is measured by what actually transpired at trial rather than what was

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 12 of 23
       alleged in the motion[.]” Averhart v. State, 470 N.E.2d 666, 680 (Ind. 1984), cert.

       denied. Thus, on review, we consider the events that actually occurred at trial to

       determine whether a motion for a separate trial should have been granted. See

       Rouster, 705 N.E.2d at 1004-05. See also Lampkins, 682 N.E.2d at 1272. “A

       defendant is not, however, entitled to a separate trial merely because a co-

       defendant implicates that defendant.” Rouster, 705 N.E.2d at 1004. See also Lee,

       684 N.E.2d at 1147 (holding that there is “no ground for reversal simply

       because one of the codefendants implicated the defendant”). “[T]he defendant

       bears the burden of showing that the denial of a separate trial subjected him to

       such serious prejudice that he was denied a fair trial.” Averhart, 470 N.E.2d at

       680. See also Castro v. State, 580 N.E.2d 232, 234 (Ind. 1991) (“When appellant

       seeks a reversal claiming an abuse of discretion in the denial of his motion for

       separate trial, he must show actual prejudice.”).


[22]   Here, Riley does not contend that his defense was mutually antagonistic from

       Carter’s. Indeed, at trial, all three defendants had the same defense – that they

       were innocent and were misidentified by Spann and Kenney. As he did at trial,

       Riley acknowledges on appeal that “Archer’s testimony that Carter had

       implicitly admitted to shooting Kenney did not implicate [Riley] directly.”

       (Riley’s Br. 14). Nevertheless, Riley contends that the trial court should have

       separated his trial from Carter’s trial, arguing that he was prejudiced by

       Archer’s testimony regarding Carter’s admission that he had shot someone.

       Specifically, in support of his argument that he was prejudiced, Riley asserts

       that Carter’s statement was an admission of guilt that bolstered the credibility of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 13 of 23
       Spann and Kenney’s identification of Carter as one of the perpetrators of the

       crime, which “in turn bolstered the credibility of their identification of Riley” as

       one of the perpetrators. (Riley’s Br. 14). Riley, however, did not object to

       Archer’s testimony at trial, let alone make an objection that it was improper

       bolstering, and he did not cross-examine the witness. As a result, he has

       waived review of this issue. See, e.g., Morgan v. State, 400 N.E.2d 111, 114 (Ind.

       1980) (holding that the defendant waived challenge to the trial court’s denial of

       his motion for a separate trial from a co-defendant by failing to move for a

       separate trial and that, nonetheless, his argument that he was prejudiced by a

       witness was also waived because the defendant did not object to her testimony,

       ask that the testimony be stricken, or cross-examine the witness).


[23]   Waiver notwithstanding, Riley’s argument that he was prejudiced ultimately

       relies on his contention that there was a lack of evidence regarding his

       involvement in the crime. Riley acknowledges that Spann and Kenney testified

       that he was one of the suspects involved in the crimes against Spann and

       Kenney, but he then challenges their testimony as “not . . . sufficiently

       credible[.]” (Riley’s Br. 17). Riley does not raise an argument challenging the

       sufficiency of the evidence. However, this challenge to the credibility or the

       weight that the jury should have given Spann’s and Kenney’s testimony is

       nothing more than an inadequate attempt at a sufficiency argument and an

       invitation to reweigh the evidence and reassess the jury’s credibility

       determination, which we will not do. See Drane v. State, 867 N.E.2d 144, 146

       (Ind. 2007).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 14 of 23
[24]   After reviewing what happened at trial, we conclude that Riley has not shown

       that the trial court’s denial of his oral motion for a separate trial “subjected him

       to such serious prejudice that he was denied a fair trial.” See Averhart, 470

       N.E.2d at 680. “It is the defendant’s burden to show that a fair trial could not

       otherwise be had, and ‘not merely that severance would enhance the prospects

       for acquittal.’” Lee, 684 N.E.2d at 1149 (quoting Blacknell v. State, 502 N.E.2d

       899, 905 (Ind. 1987) (citing Broadus and Dunville v. State, 487 N.E.2d 1298, 1302

       (Ind. 1986)), reh’g denied). When assessing what occurred at trial, we bear in

       mind that Riley does not have “a constitutional right to be protected from

       damaging evidence.” Lee, 684 N.E.2d at 1147 (quoting Castro, 580 N.E.2d at

       235 (citing Smith v. State, 474 N.E.2d 973 (Ind. 1985))).


[25]   On the morning of trial, when moving for a separate trial, Riley acknowledged

       that Archer’s testimony would refer to Carter only and not to him, but he

       argued generally that the testimony would be prejudicial. The trial court ruled

       that a separate trial was not necessary because Archer’s testimony was not

       prejudicial, and it instructed the jury, in relevant part, that “[a]ny evidence

       which is limited to one accused must not be considered by [them] as to any

       other accused.” (App. 90) (capitalization of some letters put into lower case).

       During the trial, when Archer testified about Carter’s admission, Riley did not

       object to Carter’s testimony and did not cross-examine him. Indeed, Archer’s

       testimony about Carter’s statement did not mention Riley by name nor did it

       refer to any action by Riley. Instead, Carter’s out-of-court statement referred

       only to his own actions, i.e., Carter shot someone in the head. Carter’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 15 of 23
statement did not indicate that he was with anyone or had acted in conjunction

with anyone else. Additionally, both victims, Spann and Kenney, testified and

identified Riley as one of the perpetrators of the offenses against them.

Considering the events that actually occurred at trial, we conclude that the trial

court did not abuse its discretion by denying Riley’s motion for a separate trial.

See, e.g., Brock v. State, 540 N.E.2d 1236, 1240 (Ind. 1989) (rejecting a

defendant’s argument that he was prejudiced by a co-defendant’s statement

because the statement did not attribute any act to the defendant), reh’g denied;

Wardlaw v. State, 483 N.E.2d 454, 457 (Ind. 1985) (holding that a defendant was

not entitled to a separate trial based on the co-defendant sending an apology

letter to the victim because the letter did not refer to the defendant or that the

co-defendant had acted in conjunction with another person). See also Hopper v.

State, 539 N.E.2d 944, 947 (Ind. 1989) (affirming the trial court’s denial of the

defendant’s motion to separate his trial from his co-defendant, who was absent

from the trial, where the trial court gave the jury an almost identical instruction

as the trial court did in this case).17




17
   Additionally, Riley appears to argue that the trial court’s denial of his oral motion for a separate trial—
which was based on an argument that Archer’s testimony of Carter’s statement prejudiced him—was
erroneous because it resulted in a Bruton violation and a denial of his right to cross-examination. To support
his argument, he relies on Fox v. State, 384 N.E.2d 1159 (Ind. Ct. App. 1979), for the proposition that a
defendant can be implicated by a co-defendant’s confession that does not specifically refer to him by name.
See Fox, 384 N.E.2d at 1170 (stating that “it is our opinion that the Bruton rule applies with equal force to all
statements that tend significantly to incriminate a co-defendant, whether or not he is actually named in the
statement”). We find such argument is waived because Riley’s oral motion for a separate trial was not based
on an alleged Bruton violation. See Lampkins, 682 N.E.2d at 1274 (holding that “a defendant may not present
one ground for an objection at trial and advance another ground on appeal” and that an attempt to raise a
new ground on appeal will result in waiver on appeal). Waiver notwithstanding, the facts of this case do not
involve a Bruton violation because Archer’s testimony that Carter admitted to shooting a guy in the head did

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015            Page 16 of 23
                                                       Sentencing

[26]   The parties to this appeal make no argument or challenge to the trial court’s

       sentencing in this case. Nevertheless, we are compelled to discuss it because

       there is a lack of clarity in the record regarding the entry of judgments of

       conviction and corresponding sentencing.


[27]   The record is clear that the jury found Riley guilty as charged in the amended

       charging information that was filed just prior to trial. Specifically, the jury

       found Riley 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);

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

       misdemeanor carrying a handgun without a license. Also, in a bifurcated

       proceeding, the trial court found Riley guilty of Class B felony unlawful

       possession of a firearm by a serious violent felon.


[28]   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:




       not facially implicate Riley. See Fayson, 726 N.E.2d at 294 (explaining that a co-defendant's statements
       violate Bruton only if they “facially incriminate” another defendant) (citing Richardson v. Marsh, 481 U.S. 200,
       211 (1987)); Brock, 540 N.E.2d at 1240 (explaining that “[t]he United States Supreme Court, however, has
       declined to extend Bruton to situations such as this one, which do not involve facially incriminating
       declarations”) (citing Richardson, 481 U.S. 200).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015           Page 17 of 23
        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. 448). 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.

450). The trial court then stated it would “merge 3 into 1 and we’ll sentence on

the remaining counts.” (Tr. 451). Thereafter, the trial court orally pronounced

the sentence on the Class A felony robbery conviction for Riley and his co-

defendants. For Riley, the trial court imposed a thirty-five (35) year executed

sentence, with thirty-two (32) 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. 484). The trial



Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 18 of 23
       court stated that while there were “two victims and [it] normally like[d] to

       apportion per victim -- [it would] not in this case.” (Tr. 484-85).


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

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

       conviction into his Class A felony robbery conviction and imposed a thirty-five

       (35) 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 sentences on the Class B felony robbery (of Spann) conviction, the

       Class B felony unlawful possession of a firearm by a serious violent felon

       conviction, and the carrying a handgun without a license conviction.

       Additionally, as discussed above, the trial court stated that it would order all

       sentences be served concurrently.


[30]   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

       Class A felony with a sentence of thirty (35) years; (2) robbery of Spann as a

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

       sentence of fifteen (15) 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; (5) Class B

       felony criminal confinement of Spann with a sentence of 545 days; (6) Class B

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 19 of 23
       felony unlawful possession of a firearm by a serious violent felon with a

       sentence of fifteen years; (7) Class A misdemeanor carrying a handgun without

       a license with a sentence of one year. (App. 17, 19).


[31]   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 Riley’s judgment of conviction on this offense.


[32]   Second, the trial court’s sentencing documents need to be corrected to reflect

       that Riley 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 Riley guilty of this robbery as Class B

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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 20 of 23
       However, the sentencing documents indicate that the judgment of conviction

       was entered as a Class A felony. The entry of judgment of conviction as a Class

       A felony with a sentence of fifteen years is contrary to the statutory sentencing

       range set forth for a Class A felony. See IND. CODE § 35-50-2-4 (providing that

       the sentencing range for a Class A felony is between twenty (20) and fifty (50)

       years). Thus, the abstract of judgment, sentencing order, and CCS should be

       corrected to reflect that the judgment of conviction of this robbery of Spann was

       entered as a Class B felony.


[33]   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 Riley 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. Again, 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 CCS should be corrected to reflect that the

       judgments of conviction of these criminal confinement offenses were entered as

       Class D felonies.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 21 of 23
[34]   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) Riley 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.18


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

       pronounce sentencing on all of Riley’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
                statement. Sentence shall then be pronounced, unless a sufficient cause is
                alleged or appears to the court for delay in sentencing.




       18
          Additionally, we note that the abstract of judgment and sentencing order contain all original charges filed
       against Riley, even though some of the charges were ultimately dismissed and he was not tried on some of
       the other charges. 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. (App.
       17). The abstract of judgment form, in Part I, requires a trial court list the “charge[s]” against a defendant,
       instead of the convictions. (App. 17). Then, Part II of the form requires the trial court to list the sentences
       “[a]s a result of the above convictions[.]” (App. 17). 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 49A02-1503-CR-151 | November 30, 2015           Page 22 of 23
[36]   (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. 484). 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.


[37]   Affirmed and remanded with instructions.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-151 | November 30, 2015   Page 23 of 23
