MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Feb 15 2016, 8:25 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
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Isaiah O. Batson,                                        February 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1505-CR-468
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable David R. Bolk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1209-FC-3083



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-468 | February 15, 2016    Page 1 of 7
[1]   Isaiah O. Batson appeals the revocation of his probation. He argues the trial

      court erroneously entered a written sentencing statement that orders him to

      serve more years than the court orally pronounced during the probation

      revocation hearing. We remand.


                                 Facts and Procedural History
[2]   On December 12, 2012, Batson pled guilty to Class C felony battery by means

      of a deadly weapon and admitted being an habitual offender. In return, the

      State dismissed pending Class A felony attempted voluntary manslaughter and

      Class B felony attempted aggravated battery charges. On January 11, 2013, the

      trial court sentenced Batson to five years with a five year enhancement based on

      his adjudication as an habitual offender. The court ordered “five (5) years of

      the sentence shall be executed at the Indiana Department of Corrections [sic]

      and orders execution of the balance of the sentence suspended.” (App. at 63.)

      The trial court ordered the suspended portion be served “on formal probation

      under the supervision of the Adult Probation Department for a period of three

      (3) years, followed by a period of informal probation of two (2) years.” (Id. at

      64.)


[3]   On January 27, 2014, Batson filed a pro se request for “Direct Alternative

      Placement.” (Id. at 74.) The trial court held a hearing on the matter, and

      deemed Batson’s request a petition to modify sentence. On April 3, 2014, the

      trial court granted Batson’s request and ordered “the previously executed

      sentence to be modified to time served in the Indiana Department of


      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-468 | February 15, 2016   Page 2 of 7
      Corrections [sic].” (Id. at 95.) In that order, the trial court affirmed the

      previous sentencing order “in all other respects,” (id.), and ordered Batson to

      immediately report to the Vigo County Adult Probation Department “to be

      placed on formal probation.” (Id.)


[4]   Under the terms of his probation, Batson was prohibited from “possess[ing] or

      us[ing] any controlled substance, except as prescribed by a licensed medical

      practitioner. This also includes all synthetic substances or synthetic equivalents

      with similar chemical structure and pharmacological effects of

      marijuana/cannabis, including but not limited to any form of K-2 and/or bath

      salts.” (Id. at 98.) Batson also agreed to breathalyzer and drug screenings. The

      probation agreement indicated, “a positive test for any of the aforementioned

      substances will be deemed a violation of probation.” (Id. at 99.)


[5]   On July 15, 2014, the State filed a notice of probation violation based on

      Batson’s six positive drug screens for marijuana, methamphetamine, and

      amphetamine between May 19 and July 3, and failure to submit to drug screens

      on June 19, June 23, June 26, and July 14. Batson was arrested, and the trial

      court held an initial hearing on the matter. On September 2, the parties agreed

      to a predispositional release and the trial court ordered Batson to apply for the

      “Vigo County Jail Alcohol and Drug Linkage Program.” (Id. at 110.) Batson

      did so, was accepted into the program, and successfully completed the jail

      linkage program on November 5, 2014. The Jail Linkage program

      recommended Batson complete a sober living program for ninety days. On



      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-468 | February 15, 2016   Page 3 of 7
      November 13, Batson was placed in “Club Soda,” (id. at 118), at “Freebirds

      Solution Center.” (Id. at 122.)


[6]   On December 19, 2014, the State filed a petition to revoke Batson’s

      predispositional release, alleging “[Batson] was unsuccessfully discharged from

      the Freebirds program for refusing a drug screen and absconding from the

      facility. To date, he has not contacted his Adult Probation Officer and his

      whereabouts are unknown.” (Id.) The State requested a warrant for Batson’s

      arrest and revocation of his probation.


[7]   At the probation revocation hearing on March 12, 2015, Batson admitted to

      violating the terms of his probation by testing positive for marijuana four times

      and methamphetamine or amphetamine four times. The trial court revoked

      Batson’s probation and ordered him to be evaluated for the Jail Linkage

      program. Batson was not approved for the program.


[8]   On May 7, 2015, the trial court held a hearing. At the hearing, the State

      requested “that the balance of his formal probation, three (3) years, the balance

      of the three (3) years, minus the credit for any time served, would be revoked

      and that he would be sentenced to the Indiana Department of Correction.” (Tr.

      at 102-3.) 1 The trial court sentenced Batson, stating:




      1
        We commend the Court Reporter on the excellent preparation of the transcript in this matter. There were
      fourteen hearings held and each was quite short. In accordance with Indiana Appellate Rule 28, the Court
      Reporter consecutively numbered and separated into volumes each hearing, which significantly aided our
      review of this matter.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-468 | February 15, 2016         Page 4 of 7
              I’m gonna [sic] sentence you Mr. Batson to the balance of the
              three (3) year sentence; order you placed into a Therapeutic
              Community. I’m gonna [sic] treat it as uh, Purposeful
              Incarceration. You complete it, I’m gonna [sic] suspend the rest
              of your sentence, bring you back here and get you in a sober
              living place, see if you can do it.


      (Id. at 106.) In its sentencing order dated the same day, the trial court stated,

      “[t]he Court now revokes [Batson’s] probation and orders that the balance of

      the sentence heretofore imposed and suspended be executed at the Indiana

      Department of Correction.” (App. at 144.)


                                     Discussion and Decision
[9]   In McElroy v. State, our Indiana Supreme Court set forth our standard of review

      when the trial court’s written and oral sentencing statements are not consistent:

              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. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002) (“In
              reviewing a sentencing decision in a non-capital case, we are not
              limited to the written sentencing statement but may consider the
              trial court’s comments in the transcript of the sentencing
              proceedings.”) (quoting Walter v. State, 727 N.E.2d 443, 449 (Ind.
              2000)); Strong v. State, 538 N.E.2d 924, 929 (Ind. 1989) (“In
              addition to the discussion set forth in the separate sentencing
              order, this Court has reviewed the trial court’s thoughtful
              comments at the conclusion of the sentencing hearing.”); see also
              Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006); Powell
              v. State, 751 N.E.2d 311, 315 (Ind. Ct. App. 2001); Newman v.
              State, 719 N.E.2d 832, 839 (Ind. Ct. App. 1999). Rather than
              presuming the superior accuracy of the oral statement, we

      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-468 | February 15, 2016   Page 5 of 7
               examine it alongside the written sentencing statement to assess
               the conclusions of the trial court. This Court has the option of
               crediting the statement that accurately pronounces the sentence
               or remanding for resentencing. Willey v. State, 712 N.E.2d 434,
               446 n. 8 (Ind. 1999) (“[T]he trial court issued its written
               sentencing order that was consistent with the Abstract of
               Judgment, but at odds with the oral pronouncement at the
               sentencing hearing . . . . Based on the unambiguous nature of the
               trial court’s oral sentencing pronouncement, we conclude that the
               Abstract of Judgment and Sentencing Order contain clerical
               errors and remand this case for correction of those errors.”). This
               is different from pronouncing a bright line rule that an oral
               sentencing statement trumps a written one.


       865 N.E.2d 584, 589 (Ind. 2007).


[10]   The trial court’s oral sentencing statement and written order differ significantly.

       At the sentencing hearing, the trial court, based on the recommendation of the State,

       pronounced:

               I’m gonna sentence you Mr. Batson to the balance of the three
               (3) year sentence; order you placed into a Therapeutic
               Community. I’m gonna treat it as uh, Purposeful Incarceration.
               You complete it, I’m gonna suspend the rest of your sentence,
               bring you back here and get you in a sober living place, see if you
               can do it.


       (Tr. at 106.) Batson’s original sentence required him to serve three years of

       formal probation and two years of informal probation. That oral statement of

       revocation strongly suggests the trial court intended to revoke the three-year

       period of formal probation. However, the written sentencing order revokes “the

       balance of the sentence,” (App. at 144), which the abstract of judgment

       Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-468 | February 15, 2016   Page 6 of 7
       indicates was revocation of the entire five-year suspended portion of Batson’s

       original sentence, both formal and informal probation. As we cannot reconcile

       the conflict between three and five years, we remand for the trial court to clarify

       Batson’s sanction upon probation revocation. 2


                                                    Conclusion
[11]   Because there are significant discrepancies between the trial court’s oral and

       written sentencing statements, we remand the matter of Batson’s sanction as a

       result of his probation revocation for further clarification of the trial court’s

       intention.


[12]   Remanded.


       Najam, J., and Riley, J., concur.




       2
         Batson also argues the trial court abused its discretion when it ordered him to execute the remainder of his
       sentence in the Department of Correction. As we remand for clarification of Batson’s sanction based on his
       probation revocation, we need not address that argument at this time.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-468 | February 15, 2016             Page 7 of 7
