MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Jan 29 2016, 8:53 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
Peter D. Todd                                            Gregory F. Zoeller
Elkhart, Indiana                                         Attorney General


                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth L. Shafer,                                       January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1507-CR-898
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Charles Carter
Appellee-Plaintiff                                       Wicks
                                                         Trial Court Cause No.
                                                         20D05-1501-F6-21



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016   Page 1 of 5
                                             Case Summary
[1]   Kenneth Shafer appeals his sentence because of a discrepancy between the oral

      and written sentencing orders. Specifically, the trial court orally pronounced a

      “suspended” sentence on one of the four counts to which he pleaded guilty, but

      there is no mention of this suspension in the written sentencing order or abstract

      of judgment. Although the discrepancy is likely harmless error, we

      acknowledge that the written sentencing order is consistent with the abstract of

      judgment and allows Shafer to receive credit for time served. We therefore

      determine that the written sentencing order imposes the proper sentence.



                              Facts and Procedural History
[2]   On January 8, 2015, the State charged Kenneth Shafer with three counts of

      intimidation, each Level 6 felonies, and one count of public intoxication, a

      Class B misdemeanor.1 Shafer pleaded guilty to all counts and a sentencing

      hearing was held on May 4, 2015. The trial court orally sentenced Shafer to an

      aggregate sentence of four years as follows:

               Count I, two and one-half years at the Indiana Department of
               Correction (IDOC);




      1
       Shafer has an extensive criminal history that includes convictions for felony theft, battery with injury, and
      operating a vehicle while intoxicated, as well as a host of misdemeanor convictions, including numerous
      public intoxication convictions. See Appellant’s App. p. 17-24.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016               Page 2 of 5
              Count II, one and one-half years at the IDOC, consecutive to
              Count I;


              Count III, one and one-half years at the IDOC, consecutive to
              Count I but concurrent to Count II;


              Count IV, “six months Elkhart County Jail, placed on one year
              of good behavior, suspended.”


      Sent. Tr. p. 22-24.


[3]   The written sentencing order and abstract of judgment, however, are

      inconsistent with this oral sentence. Specifically, they state that Count IV is to

      be served concurrent to Counts II and III and is not suspended. Shafer now

      appeals his sentence, requesting that this Court find that the written sentencing

      order is correct.



                                 Discussion and Decision
[4]   The approach employed by Indiana appellate courts in reviewing sentences in

      non-capital cases is to examine both the written and oral sentencing statements

      to discern the findings of the trial court. McElroy v. State, 865 N.E.2d 584, 589

      (Ind. Ct. App. 2007); see also Whatley v. State, 685 N.E.2d 48, 50 (Ind. 1997)

      (where the Court had the option of either striking a sentence modification that

      appeared in a CCS entry and contradicted the trial court’s oral sentencing order

      or remanding to the trial court for a proper sentencing, the Court found that the

      contradiction was not harmless error and elected to reinstate the original in-


      Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016   Page 3 of 5
      court sentencing and vacate the subsequent contradictory language). This

      Court has the option of crediting the statement that accurately pronounces the

      sentence or remanding for resentencing. McElroy, 865 N.E.2d at 589.


[5]   Here, at the time of sentencing, the trial court orally ordered the following

      sentence on Count IV: “six months of Elkhart County Jail, placed on one year

      of good behavior, suspended.” Sent. Tr. p. 23. In the written sentencing order,

      there is no mention of this sentence being suspended, but the order gives Shafer

      credit for 119 days served plus applicable earned credit time. Appellant’s App.

      p. 27. Furthermore the abstract of judgment ordered Shafer to serve 180 days

      on Count IV. See id. at 29. Orally at sentencing, in the written order, and in the

      abstract of judgment, the trial court ordered Count IV to run concurrent with

      Counts II and III.

[6]   Shafer concedes that since Count IV was to run concurrent with Counts II and

      III, this discrepancy may have no actual impact. “However, Shafer will not

      receive credit for time[] served on Count IV, if the oral sentence is controlling,

      and a possibility exists that he may have to serve additional time should he be

      released on Counts I, II, and III.” Appellant’s Br. p. 2. Shafer thus requests

      that we find the written sentencing order, which is consistent with the abstract

      of judgment, to be the proper sentencing order. The State contends that it

      makes no difference whether a sentence served concurrently with a longer,

      executed sentence is deemed “suspended,” and thus the error is harmless. See

      Appellee’s Br. p. 8. We agree that the error is likely harmless, but in light of the

      scenario set forth by Shafer, we find the best course of action is to determine

      Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016   Page 4 of 5
      that the written sentencing order, which is consistent with the abstract of

      judgment and under which Shafer will receive credit for time served, is the

      proper sentencing order.


[7]   Affirmed.

      Bailey, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016   Page 5 of 5
