                                                                                               FILED
      MEMORANDUM DECISION
                                                                                        08/22/2017, 11:00 am

      Pursuant to Ind. Appellate Rule 65(D), this                                              CLERK
                                                                                         Indiana Supreme Court
      Memorandum Decision shall not be regarded as                                          Court of Appeals
                                                                                              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
      Kimberly A. Jackson                                      Curtis T. Hill, Jr.
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Caryn N. Szyper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kyle Yoquelet,                                           August 22, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               57A03-1611-CR-2550
              v.                                               Appeal from the Noble Superior
                                                               Court.
                                                               The Honorable Michael J. Kramer,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               57D02-1507-CM-492




      Friedlander, Senior Judge

[1]   Kyle Yoquelet appeals from the trial court’s sentencing order, contending it

      violates the terms of his plea agreement. The State agrees. We reverse and

      remand with instructions.




      Court of Appeals of Indiana | Memorandum Decision 57A03-1611-CR-2550 | August 22, 2017          Page 1 of 4
[2]   Yoquelet entered into an oral plea agreement which provided that he would
                                                                          1
      plead guilty to one count of driving while suspended, a Class A misdemeanor,
                                                                              2
      and one count of carrying a handgun without a license, a Class A

      misdemeanor, in exchange for the dismissal of other counts. The State and

      Yoquelet, who was pro se, agreed to a sentence of one year on each count with

      all but 180 days suspended to probation.


[3]   During the sentencing hearing, the State acknowledged the 180-day cap on the

      executed portion of Yoquelet’s sentence and that the sentences were to be

      served concurrently, but consecutively to any sentence he should receive on

      pending charges against him in two other counties. The trial court stated the

      following at the sentencing hearing:


                 Okay I will sentence you in each count to uh, three hundred
                 sixty-five (365) days a[sic] I’ll suspend all of that except for one
                 hundred and eight[sic] days to be served without any credit for
                 time served and I will place you on probation for one hundred
                 and eighty (180) days under standard terms one (1) through
                 fourteen (14). I’ll also order that uh, that there be a fine of one
                 hundred (100) dollars in each count and court cost[s] of one
                 hundred and eighty three (183) dollars and fifty (59) cents in
                 count one (1) and I’ll waive the court costs in count 2 and I’ll just
                 put a due date for those of June 1st of next year. This sentence is,
                 they are concurrent with each other but consecutive to your other
                 sentences out of Steuben and DeKalb.




      1
          Ind. Code § 9-24-19-2 (2012).
      2
          Ind. Code § 35-47-2-1(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 57A03-1611-CR-2550 | August 22, 2017   Page 2 of 4
      Tr. pp. 15-16.


[4]   The trial court’s written sentencing order, however, imposed a sentence on

      Count I of 365 days and 185 days suspended, to be served consecutively to all

      other cases and placed Yoquelet on probation for 180 days. The trial court

      imposed a sentence on Count II using identical language. Per the trial court’s

      written order, which conflicted with its statement at the hearing, Yoquelet was

      to serve the sentences for these two counts consecutively, not concurrently, and

      consecutively to his sentences in other counties.


[5]   Here, though acknowledging the disparity between the trial court’s two

      statements, the State would prefer that we credit the trial court’s oral sentencing

      statement as more accurate and affirm the trial court’s sentencing order. Citing

      Murrell v. State, 960 N.E.2d 854 (Ind. Ct. App. 2012), Yoquelet agrees that the

      oral sentencing statement is accurate, but requests a remand to the trial court to

      correct or clarify its written sentencing order to reflect that the sentences from

      Noble County should be served concurrently with each other, but consecutively

      to sentences from other counties. In Murrell, the oral sentencing statement

      imposing concurrent sentences differed from the written sentencing statement

      imposing consecutive sentences. We remanded with instructions for the trial

      court to correct its written sentencing order. The same approach should be used

      here.




      Court of Appeals of Indiana | Memorandum Decision 57A03-1611-CR-2550 | August 22, 2017   Page 3 of 4
[6]   We reverse the trial court’s written sentencing order and remand with

      instructions that the trial court correct and clarify its written sentencing order

      consistent with its oral sentencing statement and this opinion.


[7]   Reversed and remanded with instructions.


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




      Court of Appeals of Indiana | Memorandum Decision 57A03-1611-CR-2550 | August 22, 2017   Page 4 of 4
