                                                                       FILED
      MEMORANDUM DECISION                                         Jun 09 2016, 6:38 am

                                                                       CLERK
      Pursuant to Ind. Appellate Rule 65(D), this                  Indiana Supreme Court
                                                                      Court of Appeals
      Memorandum Decision shall not be regarded as                      and Tax Court
      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
      Jessica Merino                                            Gregory F. Zoeller
      Merino Law Firm, PC                                       Attorney General of Indiana
      Goshen, Indiana
                                                                Monika Prekopa Talbot
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Edwin Guzman,                                            June 9, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A05-1509-CR-1548
              v.                                               Appeal from the Elkhart Superior
                                                               Court.
                                                               The Honorable Gretchen S. Lund,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 20D04-1503-F6-270




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Edwin Guzman appeals from the trial court’s denial of his motion to correct

      error following his conviction for being an habitual traffic offender, a Level 6

      felony. We affirm.

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                                                     Issue
[2]   Guzman raises one issue, which we restate as: whether the trial court abused

      its discretion in denying Guzman’s motion to correct error.


                               Facts and Procedural History
[3]   On March 23, 2015, the State charged Guzman with being an habitual traffic

      offender after he was involved in an auto accident. Guzman and the State

      entered into a written plea agreement. Pursuant to the agreement, Guzman

      would plead guilty as charged. In exchange, the State agreed Guzman would

      receive a one-year sentence at the county jail, to be suspended and served on

      probation. The State further agreed, “Defendant may earn misdemeanor

      [sentence modification] in 365 Days according to I.C. 35-38-1-1.5.” Appellant’s

      App. p. 33.


[4]   The trial court held a guilty plea hearing, at which a factual basis for the offense

      was established and Guzman entered a plea of guilty. On July 8, 2015, the

      court held a sentencing hearing. At the beginning of the hearing, Guzman

      moved to withdraw his guilty plea under the written agreement and instead to

      plead guilty as an open plea. Guzman, through counsel, explained to the court,

      “[Guzman] did not know that by entering this plea [per the written agreement]

      that the Court would not have, it [sic] its discretion, to be able to sentence him

      directly to a misdemeanor.” Tr. p. 2. The State did not object to Guzman’s

      request. The court granted Guzman’s request to withdraw from the plea

      agreement.

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[5]   Next, Guzman asked the trial court to enter judgment against him for a Class A

      misdemeanor rather than a Level 6 felony. The State disagreed with Guzman’s

      request, asserting the facts of the case justified a Level 6 felony conviction. The

      court concluded a Level 6 felony conviction was appropriate and entered a

      judgment of conviction accordingly. The court sentenced Guzman to one year

      in the county jail, with the sentence to be suspended to probation.


[6]   After the trial court announced the sentence, the State noted that if Guzman

      later sought to have his felony conviction reduced to a Class A misdemeanor,

      the State’s consent would be required. The State indicated it would not

      consent, claiming it had only agreed to a modification in the written plea

      agreement. The court stated, “We’ll show that there is not consent from the

      prosecutor and I will not set it for misdemeanor review at this time.” Id. at 20.

      Guzman asked the court to schedule a hearing for a future date, even as he

      acknowledged the statute governing post-sentencing modification of a

      conviction “specifies prosecutorial consent.” Id. The court responded, “If you

      want it set for some type of a future court date and you find authority for this

      Court to consider that, please file something with the Court for the Court’s

      review and if it’s appropriate, I will schedule it for a future court date.” Id.


[7]   On July 17, 2015, Guzman filed a request for an expedited hearing, asserting

      the trial court had the power to sentence him for a Class A misdemeanor after

      one year had passed if: (1) the court delayed the imposition of the judgment;

      and (2) Guzman complied with terms of supervision set by the court. On July

      22, 2015, Guzman filed a motion to correct error, again requesting

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      misdemeanor sentencing after one year. The State filed a response. At a

      subsequent oral argument, Guzman asked the trial court to vacate his

      conviction, withhold entry of judgment for a year, and then, at a review

      hearing, enter a judgment of conviction as either a felony or a misdemeanor as

      the court deemed appropriate. The court took the arguments under advisement

      and later denied the motion to correct error. This appeal followed.


                                   Discussion and Decision
[8]   We review a trial court’s denial of a motion to correct error for an abuse of

      discretion. Pribie v. State, 46 N.E.3d 1241, 1250 (Ind. Ct. App. 2015), trans.

      denied. An abuse of discretion occurs when the trial court’s decision is against

      the logic and effect of the facts and circumstances before it or when it has

      misinterpreted the law. Id. We do not reweigh evidence. Id. To the extent

      Guzman presents any questions of law, our review is de novo. Madden v. State,

      25 N.E.3d 791, 795 (Ind. Ct. App 2015), trans. denied.


[9]   By statute, in specific circumstances a trial court has the authority to enter a

      judgment of conviction for a Class A misdemeanor upon a person who has

      committed a Level 6 felony. Ind. Code § 35-50-2-7 (2014). The court’s

      authority to reduce the sentence under that statute is limited to the moment the

      trial court first enters its judgment of conviction and before the trial court

      announces sentence. Fields v. State, 972 N.E.2d 974, 976 (Ind. Ct. App. 2012)

      (discussing a prior version of Ind. Code § 35-50-2-7), trans. denied. In addition, a

      trial court has the authority to enter a judgment of conviction as a Level 6


      Court of Appeals of Indiana | Memorandum Decision 20A05-1509-CR-1548 | June 9, 2016   Page 4 of 8
       felony, with the express provision in the judgment that the conviction will be

       subsequently reduced to a Class A misdemeanor, if the defendant fulfills certain

       conditions and the prosecuting attorney consents. Ind. Code § 35-38-1-1.5

       (2014).


[10]   Here, Guzman is requesting a different type of relief: he argues the trial court

       should have granted his request to withhold entry of judgment and should have

       allowed him to request misdemeanor sentencing after one year, subject to his

       compliance with whatever terms the court established, without the prosecutor’s

       consent. As part of this argument, Guzman presents a factual claim: he asserts

       the trial court “indisputably intended to permit Guzman to earn a misdemeanor

       in one year.” Appellant’s Br. p. 8. The State disagrees, arguing the court

       sentenced Guzman for a Level 6 felony and that was the end of the matter.


[11]   The record supports the State’s argument. The trial court rejected Guzman’s

       request to be sentenced for a Class A misdemeanor and entered judgment

       against Guzman for a Level 6 felony. After the State explained it would not

       consent to sentence modification at a later date, the trial court stated, “We’ll

       show that there is not consent from the prosecutor and I will not set it for

       misdemeanor review at this time.” Tr. p. 20. Thus, at the end of the hearing

       the court did not express an intent to sentence Guzman to a misdemeanor,

       merely a willingness to consider any additional arguments in support of

       misdemeanor sentencing that Guzman might present at a later date. See

       Johnson v. State, 507 N.E.2d 980, 983 (Ind. 1987) (rejecting appellant’s claim

       that the trial court believed it lacked the authority to impose alternative

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       misdemeanor sentencing; record revealed the trial court concluded it had the

       authority but chose not to use it).


[12]   Guzman next claims that even if the trial court did not intend to enter judgment

       against him for a Class A misdemeanor, the court should have done so

       pursuant to our Supreme Court’s decision in Debro v. State, 821 N.E.2d 367

       (2005). In that case, Debro and the State entered into a written plea agreement

       pursuant to which the trial court, which accepted the plea agreement and was

       bound by its terms, agreed to withhold a judgment of conviction pending

       Debro’s compliance with a year-long compliance plan. If he complied with the

       plan, no judgment of conviction would be entered. Six weeks later, Debro

       violated the terms of the plan, and the trial court imposed judgment and a

       sentence.


[13]   On appeal, Debro claimed the plea agreement was void because the trial court

       was not permitted by statute to decline to enter a judgment of conviction

       following a guilty plea. Debro further argued as part of his claim that the trial

       court had no power to delay the entry of a judgment of conviction. On the

       question of timeliness, our Supreme Court stated, “The trial court may not

       withhold judgment but is required to enter judgment of conviction immediately

       unless a temporary postponement is dictated by good cause shown or the

       interest of justice so requires.” Id. at 372. The Court further determined

       Debro’s plea agreement was void because the trial court was statutorily

       obligated to enter judgment on the charge after Debro pleaded guilty, and the

       agreement would have improperly permitted the court to simply dismiss the

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       charge. Nevertheless, Debro was not entitled to relief from his voidable guilty

       plea because he received substantial benefits from the plea agreement.


[14]   Debro is procedurally and factually distinguishable from this case. In Debro, the

       key issue was whether the parties’ written plea agreement was void per se

       because it permitted the trial court to avoid entering a judgment, in violation of

       statute, after the defendant had pleaded guilty. By contrast, in this case

       Guzman withdrew from the parties’ written plea agreement and entered an

       open plea. In addition, Guzman does not allege that his sentence is illegal,

       claiming only that the trial court should have delayed the entry of judgment.

       Furthermore, as to the propriety of delaying the entry of judgment, the Debro

       Court merely concluded a delayed judgment is not a “nullity per se.” Id. The

       Court was not called upon to decide in that case whether there was good cause

       for the delay.


[15]   We cannot conclude the holding in Debro required the trial court in this case to

       vacate its entry of judgment and to withhold the entry of judgment for one year

       to consider at that later date whether to sentence Guzman for a felony or a

       misdemeanor. Also, to the extent Debro grants a trial court the discretion to
                                                                                               1
       delay the entry of judgment for up to a year as Guzman requests, he has failed

       to present on appeal any good cause or interest of justice that would have




       1
        Our Supreme Court has not elaborated upon its discussion in Debro as to how long of a delay is too long,
       but the Court concluded in one case that a thirty-day delay in the entry of judgment was supported by good
       cause or otherwise in the interest of justice. See Cleary v. State, 23 N.E.3d 664, 669 n.2 (2015).

       Court of Appeals of Indiana | Memorandum Decision 20A05-1509-CR-1548 | June 9, 2016              Page 7 of 8
       justified such a delay in his case. The trial court did not abuse its discretion in

       denying Guzman’s motion to correct error. See Fox v. State, 916 N.E.2d 708,

       711 (Ind. Ct. App. 2009) (no abuse of discretion in denying alternative

       misdemeanor sentencing; record amply supported trial court’s determination

       that a felony conviction was appropriate).


                                                Conclusion
[16]   For the reasons stated above, we affirm the judgment of the trial court.


[17]   Affirmed.


       Bailey, J., and Pyle, J., concur.




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