      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be                                 Mar 27 2019, 10:47 am
      regarded as precedent or cited before any
                                                                                 CLERK
      court except for the purpose of establishing                           Indiana Supreme Court
                                                                                Court of Appeals
      the defense of res judicata, collateral                                     and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Rory Gallagher                                           Attorney General of Indiana
      Marion County Public Defender Agency                     Matthew B. MacKenzie
      – Appellate Division                                     Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Larry J. Thomas,                                         March 27, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1714
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Lisa F. Borges,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               49G04-1603-MR-9636



      Mathias, Judge.


[1]   Following a jury trial in Marion Superior Court, Larry Thomas (“Thomas”)

      was convicted of murder and Level 2 felony attempted robbery resulting in


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019                 Page 1 of 16
      serious bodily injury. Thomas appeals and presents two issues, which we restate

      as: (1) whether the prosecuting attorney committed misconduct during the

      State’s closing argument that amounted to fundamental error; and (2) whether

      the trial court should have entered a judgment of conviction on the attempted

      robbery count as a Level 5 felony instead of a Level 2 felony. We conclude that

      the trial court did not commit fundamental error, but we also conclude that the

      trial court’s oral sentencing statement clearly indicated the court’s intention to

      enter judgment of conviction on the attempted robbery count as a Level 5

      felony. Accordingly, we affirm Thomas’s conviction for murder but reverse his

      conviction for attempted robbery as a Level 2 felony, and we remand with

      instructions that the trial court instead enter judgment of conviction for

      attempted robbery as a Level 5 felony.


                                 Facts and Procedural History
[2]   On February 29, 2016, the victim in this case, Rito Llamas-Juarez (“Llamas”),

      went to the home of his step-daughter Xiomara Linares (“Linares”), where she

      lived with her boyfriend Jose Padilla (“Padilla”), her son M.L., Padilla’s son

      A.P., and Padilla’s brother-in-law Marcos Hernandez (“Hernandez”). Llamas,

      who spoke little English, wanted to buy two iPhones for his daughters. He

      therefore sought the help of M.L., who spoke English and was familiar with the

      smartphone app Offer Up, which facilitates direct, person-to-person sales

      between its users. Tr. Vol. II, p. 171. M.L. had previously purchased a phone

      using the app and found a person with a user name of “Sports” offering for sale

      two iPhone 6 smartphones for $500. Tr. Vol. II, pp. 173, 243. M.L. negotiated

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 2 of 16
      the price down to $400 and agreed to meet the seller in the parking lot of an

      apartment complex located near the intersection of 39th Street and Post Road

      in Indianapolis.


[3]   Hernandez drove Llamas and M.L. to the arranged meeting place, but the seller

      did not arrive. They therefore returned to Linares’s home. A while later, while

      M.L. and Hernandez were eating at a fast-food restaurant, they received a

      telephone call from the seller asking them to meet in the parking lot in the rear

      of the apartment complex. Hernandez drove back home to pick up Llamas and

      A.P. and drove to the parking lot. Llamas sat in the front passenger seat, while

      M.L. and A.P. sat in the back seat. By then, it had grown dark, and the parking

      lot was not very well lighted. In the parking lot were two young men, one of

      whom was holding a T-Mobile bag. Presuming that this was the seller,

      Hernandez parked nearby.

[4]   The two young men waiting in the parking lot walked toward the car. M.L. got

      out of the car to talk to the men, and Llamas opened the passenger side door to

      talk. The man holding the T-Mobile bag handed an iPhone 6 box to Llamas. As

      M.L. spoke with the two men, a third man with dreadlocks in his hair and

      wearing a hooded sweatshirt approached the car holding a rifle. This man, later

      identified as Thomas, told M.L. and the other occupants of the car to “give us

      everything you got.” Tr. Vol. II, pp. 186, 200. One of the other two men put his

      hand inside M.L.’s pocket and attempted to grab his cellphone. M.L. shoved

      the man and fled the scene. As Llamas struggled with Thomas in an attempt to

      shut the car door, Thomas shot Llamas in the chest. After Thomas fired the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 3 of 16
      rifle, he and the other two men fled, and Hernandez drove back home. When

      M.L. heard the shots, he ran home. By the time he got back home, Hernandez

      had already arrived. They pulled a lifeless Llamas out of the car, and M.L.

      called 911. An ambulance arrived and took Llamas to the hospital, where he

      was pronounced dead.


[5]   When the police interviewed Hernandez, M.L., and A.P., they all initially told

      the police that Hernandez was not involved and that M.L. had been driving.

      They did so on Hernandez’s instructions because, as Hernandez later

      explained, he had already been deported once, was concerned about his

      immigration status, and did not want to get involved in a murder investigation.

[6]   At the scene of the shooting, the police found two empty .223 caliber shell

      casings and a fresh cigarette butt. The police also found fingerprints on the

      iPhone 6 box, which contained an iPhone 5c with a cracked screen. M.L. also

      gave the police his iPhone, which revealed that the seller’s Offer Up user name

      was “Sports.” The police then obtained a warrant to compel the operator of the

      Offer Up app to produce documents relating to the user account with that user

      name. These documents revealed that the user name “Sports” was linked with

      Thomas’s Facebook identity.1


[7]   On March 5, 2016, the police obtained a search warrant for Thomas’s

      apartment, which was located near the site of the shooting. When executing the



      1
       The Facebook account was named “SlaughtaBoi Larro,” but had originally been named “Larry Joe
      Thomas, Jr.” Tr. Vol. II, p. 243–44; Ex. Vol, State’s Exs. 55(A), 55(B), 56.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019           Page 4 of 16
      warrant, the police found a box of .223 caliber bullets. The police also executed

      a warrant allowing them to obtain a sample of Thomas’s DNA. When the

      police swabbed Thomas’s cheek for DNA, he claimed to have been robbed a

      few nights before. And when asked about his phone, Thomas told the police

      that he had recently bought a new phone because his old one had been stolen

      during the alleged robbery. Thomas claimed that he had been robbed by three

      men near his apartment and had been pistol whipped and stomped on, but

      Thomas had no visible injuries to corroborate these claims. The DNA found on

      the cigarette butt at the scene of the crime matched Thomas’s DNA. And his

      fingerprints were found on the iPhone 6 box that had been given to M.L.

[8]   The police also obtained a warrant to search Thomas’s iPhone. The name

      associated with Thomas’s iPhone was “Sporty Racks,” and his phone was

      connected to the Offer Up records for “Sports” through Apple’s iOS Keychain

      password storage feature. Tr. Vol. III, pp. 153, 201–02. When the police

      searched Thomas’s iPhone, they discovered photos and videos of Thomas

      holding an AR-15-style rifle.2 It also contained photos that matched those used

      in the Offer Up listing by “Sports.” In addition, Thomas’s email account

      contained notification messages from Offer Up and from people inquiring about

      the phones for sale, and Thomas’s phone contained a screenshot taken on the

      morning of March 1, 2016 of a news article reporting on the shooting. Later

      that same morning, Thomas used Facebook Messenger to communicate with



      2
          An AR-15 uses .223 caliber ammunition.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 5 of 16
       his stepbrother about the shooting. That night, Thomas changed his cell phone

       number.

[9]    Further investigation revealed that the telephone number that “Sports” used to

       contact M.L. was associated with the smartphone app “Pinger,” which gives

       users a telephone number and allows them to send text messages and telephone

       calls over the Internet. Tr. Vol. II, p. 249, Vol. III, p. 221. Using records

       obtained from the maker of the Pinger app, the police learned that a Pinger

       account was created with Thomas’s email account on February 29, 2016—the

       night of the shooting—at approximately 7:30 p.m. Tr. Vol. III, p. 221–22. The

       Offer Up user “Sports” used this Pinger account to contact M.L. until 9:52 p.m.

       that evening. A second Pinger account was then created at 9:55 p.m. using a

       different email address, and “Sports” used this second account to contact M.L.

       three more times that night.

[10]   The first Pinger account connected to the IP address of Thomas’s home internet

       router and made the calls to M.L. from this IP address. The second Pinger

       account also connected to Thomas’s IP address when it was created, and one

       telephone call was placed to M.L. from this IP address. The other two times the

       second Pinger account contacted M.L. that night, it did so via a different IP

       address. But this second Pinger account again contacted Thomas’s IP address at

       10:09 p.m. and 10:10 p.m. that night, which was only one minute before M.L.

       returned home and telephoned 911. Pinger was then uninstalled from Thomas’s

       phone at 10:16 p.m.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 6 of 16
[11]   On March 11, 2016, the State charged Thomas with murder, felony murder,

       and Level 2 felony attempted robbery resulting in serious bodily injury. A jury

       trial commenced on May 14, 2018, at which Thomas conceded most of the

       State’s factual assertions. Specifically, Thomas admitted: that he lived in the

       apartment near the scene of the crime; that he went by the name “SlaughtaBoi

       Larro” and “Sporty Racks”; that he had purchased an AR-15 and .223

       ammunition in February 2016; that he took photos of his rifle using his phone

       that he later deleted; that he and two friends agreed to “dupe” someone into

       buying broken iPhones and used the Offer Up app to advertise for sale two non-

       broken iPhones; that he communicated with M.L. on the night of the murder

       using the Pinger app on his phone; that he smoked a cigarette at the scene of the

       crime; that he brought his AR-15 rifle to the sale; that Llamas was shot during

       the attempted sale; that his rifle was the murder weapon; and that the

       ammunition he had purchased was used to shoot Llamas. Tr. Vol. IV, pp. 10,

       12–14, 17–18, 26–29, 36–39, 44, 48, 53. He also admitted that he had lied to the

       police when he initially claimed that he had been robbed on the night of the

       shooting, that he did not own any firearms, that he had not used Offer Up for

       weeks, and that he did not know what the Pinger app was. He also admitted

       that he had initially given the police a fake phone number. Tr. Vol. IV, pp. 72–

       78, 82.


[12]   Thomas testified on his own behalf and gave the following version of events.

       He and his two friends, brothers Antwan and Anthony, were hanging out when

       Anthony came up with the idea to swindle someone by selling them broken


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 7 of 16
       iPhones. He allowed Antwan to use his phone to set up the fraudulent sale on

       Offer Up, and, in exchange, Antwan would give Thomas half of the proceeds.

       Anthony wanted to bring Thomas’s rifle, and although he thought it

       unnecessary, Thomas allowed Anthony to take his rifle to the exchange point.

       Once in the parking lot, Thomas stood with Antwan, who held the T-Mobile

       bag. After Antwan handed the bag to Llamas, Anthony pulled out the rifle and

       demanded money. Thomas ran away from the scene and heard a gunshot but

       did not return to the scene. Thomas saw Anthony the next day, and Anthony

       returned Thomas’s phone but not the rifle.


[13]   Thomas admitted that he did not tell the police this story but claimed to have

       done so because he did not want Anthony, who he thought still had the rifle, to

       know that he was cooperating with the police. Thomas admitted that he

       intended to commit theft but denied any intent or plan to commit robbery or a

       shooting.


[14]   In the State’s closing argument, the prosecuting attorney made several

       comments that Thomas now claims were improper, which we summarize as

       follows: (1) the prosecutor asked the jury to imagine what it was like for M.L.

       to testify and that he told the truth; (2) the prosecutor stated that it was

       understandable why Hernandez lied when he first spoke with the police but was

       truthful in his testimony; (3) the prosecutor stated that Thomas lied to the police

       and lied on the stand; (4) the prosecutor implied that Thomas had worn fake

       eyeglasses during the trial and that his testimony was similarly fake; and (5) the

       prosecutor stated that Thomas’s testimony was “made up” just like his earlier

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 8 of 16
       statement to the police. Tr. Vol. IV, pp. 118–20, 124, 138–39. Thomas objected

       only to the first of these statements and moved to strike the comment. The trial

       court sustained the objection and admonished the jury that it was the sole judge

       of witness credibility.


[15]   At the conclusion of the trial, the jury found Thomas guilty as charged. At the

       sentencing hearing held on July 27, 2018, the trial court entered judgment of

       conviction on the count of murder, but not the count of felony murder, based

       on double jeopardy concerns. The parties then engaged in a discussion about

       the propriety of entering a judgment of conviction on the count of Level 2

       felony robbery causing serious bodily injury, and the trial court ultimately

       concluded that it would enter judgment of conviction on this count as a Level 5

       felony, not a Level 2 felony. The court sentenced Thomas to the advisory

       sentence of fifty-five years on the murder conviction and a consecutive sentence

       of five years on the robbery conviction, with two years executed in community

       corrections and three years suspended to probation. Thomas now appeals.

                                       I. Prosecutorial Misconduct

[16]   Thomas first argues that the prosecuting attorney committed misconduct when

       he referred to the veracity of the State’s witnesses and Thomas’s lack of

       veracity.


               In reviewing a claim of prosecutorial misconduct properly raised
               in the trial court, we determine (1) whether misconduct occurred,
               and if so, (2) whether the misconduct, under all of the
               circumstances, placed the defendant in a position of grave peril to
               which he or she would not have been subjected otherwise. A
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 9 of 16
               prosecutor has the duty to present a persuasive final argument
               and thus placing a defendant in grave peril, by itself, is not
               misconduct. Whether a prosecutor’s argument constitutes
               misconduct is measured by reference to case law and the Rules of
               Professional Conduct. The gravity of peril is measured by the
               probable persuasive effect of the misconduct on the jury’s
               decision rather than the degree of impropriety of the conduct.


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations and internal quotation

       marks omitted).


[17]   If a defendant believes that the prosecutor’s statements constitute misconduct,

       the proper procedure is to object to the statement and request the trial court to

       admonish the jury. Lowden v. State, 51 N.E.3d 1220, 1224 (Ind. Ct. App. 2016),

       trans. denied (citing Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). If the

       defendant is not satisfied with the admonishment, then he should move for a

       mistrial. Id. The failure to request an admonishment or to move for mistrial

       results in waiver of the issue on appeal. Id.; see also Castillo v. State, 974 N.E.2d

       458, 468 (Ind. 2012) (noting that a defendant must request a mistrial if he

       considers the trial court’s admonishment to be inadequate and the failure to

       move for a mistrial results in waiver).

[18]   Here, Thomas objected at trial to only one of the statements by the prosecuting

       attorney that he now claims were improper. Specifically, he objected when the

       prosecuting attorney asked the jurors to put themselves in M.L.’s position and

       argued that “they told the truth.” Tr. Vol. IV, p. 118. Thomas immediately

       objected and moved to strike. The trial court sustained this objection and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 10 of 16
       instructed the jurors that they were the ultimate judges of the credibility of the

       witnesses. We presume a trial court’s admonishment to the jury was sufficient

       to cure any alleged error in the prosecuting attorney’s statements. Johnson v.

       State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009).


[19]   Moreover, if he considered this admonishment inadequate, Thomas should

       have moved for a mistrial, but he did not. Because Thomas did not request a

       mistrial, the issue is waived. See Lowden, 51 N.E.3d at 1224. Thomas’s

       remaining claims of prosecutorial misconduct are also waived because Thomas

       failed to object to the statements at the time they were made. See id.


[20]   Because he failed to preserve his claim of prosecutorial misconduct for appeal,

       Thomas must, in addition to establishing prosecutorial misconduct, also

       establish that the misconduct constituted fundamental error. Lowden, 51 N.E.3d

       at 1224–25 (citing Ryan, 9 N.E.3d at 667–68). In Ryan, our supreme court set

       forth the high burden required to establish fundamental error:


               Fundamental error is an extremely narrow exception to the
               waiver rule where the defendant faces the heavy burden of
               showing that the alleged errors are so prejudicial to the
               defendant’s rights as to make a fair trial impossible. In other
               words, to establish fundamental error, the defendant must show
               that, under the circumstances, the trial judge erred in not sua
               sponte raising the issue because alleged errors (a) constitute
               clearly blatant violations of basic and elementary principles of
               due process and (b) present an undeniable and substantial
               potential for harm. The element of such harm is not established
               by the fact of ultimate conviction but rather depends upon
               whether [the defendant’s] right to a fair trial was detrimentally
               affected by the denial of procedural opportunities for the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 11 of 16
               ascertainment of truth to which he otherwise would have been
               entitled. In evaluating the issue of fundamental error, our task . .
               . is to look at the alleged misconduct in the context of all that
               happened and all relevant information given to the jury—
               including evidence admitted at trial, closing argument, and jury
               instructions—to determine whether the misconduct had such an
               undeniable and substantial effect on the jury’s decision that a fair trial
               was impossible.

       9 N.E.3d at 668 (emphasis in original) (citations, internal quotation marks, and

       footnote omitted).

[21]   The Ryan court noted that it is “highly unlikely” for a defendant to prevail on a

       claim of fundamental error relating to prosecutorial misconduct. Id. (citing Baer

       v. State, 942 N.E.2d 80, 99 (Ind. 2011)). This is in part because jurors are aware

       that closing arguments are “partisan advocacy,” not impartial statements of the

       law and thus are likely to have little effect on the jury's understanding of the

       law. Id.; Castillo, 974 N.E.2d at 469 n.11. It is under this demanding standard

       that we review Thomas’s claims of prosecutorial misconduct.


[22]   As already stated, the first instance of alleged misconduct occurred when the

       prosecuting attorney asked the jurors to put themselves in M.L.’s position and

       argued that the State’s witnesses “told the truth.” Tr. Vol. IV, p. 118. Although

       the prosecutor’s comments may have been improper, they did not constitute

       fundamental error. Although a prosecutor may not personally vouch for a

       witness, he or she may comment on the credibility of a witness so long as the

       assertions are based on reasons which arise from the evidence. Ryan, 9 N.E.3d

       at 671. Here, there is no indication that the prosecutor was stating that he

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 12 of 16
       personally knew that the witnesses were truthful based on facts outside the

       evidence, which would be impermissible. Moreover, the trial court sustained

       Thomas’s objection and admonished the jury that it was the ultimate judge of

       credibility. Thus, we cannot say that this comment constituted fundamental

       error.


[23]   Thomas next complains that the prosecuting attorney stated: “Marcos

       [Hernandez], the driver, lies when he first talked to the officer. Understandably

       why, I think. He was truthful about it now, came in later and gave a statement.

       Truthful about why he did it. And told the story that—that he was the driver.”

       Tr. Vol. IV, p. 120. The prosecutor was simply acknowledging that Hernandez

       and the others initially, and falsely, claimed that Hernandez was not driving the

       car on the night of the shooting and did so because Hernandez did not want to

       get involved due to his immigration issues. And with regard to the comment

       that Hernandez was being “truthful now,” this appears to have been a comment

       on the evidence, i.e., the testimony of the other witnesses that Hernandez was

       driving. Thus, this comment did not constitute fundamental error.


[24]   The third statement that Thomas complains about is when the prosecutor

       argued that Thomas: “[I]n his statements [to the police] he lied about

       everything that first time around, you know that. And he lied effortlessly. It was

       just amazing how he just s[a]t there and talked to the detective effortlessly and

       lied about everything. The same way he did today.” Id. at 124. Again, there is

       no indication that the prosecutor was referring to anything outside the record in

       arguing that Thomas lied to the police. To the contrary, Thomas admitted that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 13 of 16
       he lied to the police during his first interview by claiming that he was not at the

       scene of the shooting and had instead been robbed himself on the night in

       question. Thus, the prosecutor’s comments were a comment on the evidence of

       Thomas’s untruthful character and did not constitute misconduct, let alone

       fundamental error.


[25]   Thomas next complains that, during the State’s rebuttal argument, the

       prosecuting attorney stated that Thomas’s testimony was “as fake a[s] the

       glasses wor[n] to every[]day of the trial except this one. Did he need glasses?

       Why isn’t he wearing them today? Because they’re fake, just like what he got up

       in the stand and told you there.” Id. at 135. There was no evidence presented

       regarding whether Thomas needed prescription eyeglasses. Thus, the

       prosecutor’s comment was improper, but it was relatively innocuous, and there

       was other evidence that Thomas had been untruthful in his testimony.

       Moreover, the evidence against Thomas was exceptionally strong. We therefore

       cannot say that this comment constituted fundamental error.


[26]   Lastly, Thomas complains that, during the State’s rebuttal argument, the

       prosecuting attorney noted that Thomas testified to having only handled the

       iPhone box to take photos. Yet his fingerprints were found inside the box. The

       prosecuting attorney therefore stated that his was “[b]ecause [Thomas] lied.

       Because everything he told you from that stand except for his name was made

       up, just like the story he told to [the investigating detective].” Tr. Vol. IV, pp.

       138–39. This comment was clearly based on the evidence indicating that



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 14 of 16
       Thomas’s testimony was not truthful and was therefore not improper, let alone

       fundamental error.

[27]   In short, we reject Thomas’s claim that the prosecutor’s comments during the

       State’s closing arguments constituted fundamental error.

                                                 II. Sentencing

[28]   The jury found Thomas guilty of murder, felony murder, and Level 2 felony

       attempted robbery resulting in serious bodily injury. At the sentencing hearing,

       the trial court entered judgment of conviction on the murder count but not the

       felony murder count due to double jeopardy concerns. With regard to the

       attempted robbery count, the trial court indicated that it would enter a

       judgment of conviction on the lesser-included offense of attempted robbery as a

       Level 5 felony, also because of double jeopardy concerns. The trial court then

       imposed a consecutive sentence of five years on this count, with three years

       executed in community corrections and two years suspended to probation. The

       trial court’s community corrections order lists Thomas’s robbery conviction as a

       Level 5 felony. However, in its written sentencing statement and abstract of

       judgment, the trial court indicated that the attempted robbery conviction was a

       Level 2 felony.


[29]   Both parties agree that the trial court intended to enter a judgment of conviction

       on the attempted robbery count as a Level 5 felony. We also agree that this was

       the trial court’s intention. The trial court clearly indicated at the sentencing

       hearing that it intended to enter judgment of conviction as a Level 5 felony in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 15 of 16
       order to avoid any double jeopardy implications. And the trial court imposed a

       sentence that is statutorily authorized for a Level 5 felony, but below the ten-

       year minimum sentence for a Level 2 felony. Moreover, the community

       corrections order states that Thomas’s attempted robbery conviction was “a

       Level 5 felony (reduced by operation of law).” Appellant’s App. Vol. II, p. 203.


[30]   We therefore reverse the trial court’s sentencing order to the extent that it states

       that Thomas’s conviction for attempted robbery was a Level 2 felony, and we

       remand with instructions that the court correct both its sentencing order and the

       abstract of judgment to reflect that Thomas’s conviction for attempted robbery

       is a Level 5 felony, not a Level 2 felony.

[31]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019   Page 16 of 16
