                                                                           FILED
                                                                       Jul 05 2018, 5:30 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Megan Shipley                                              Curtis T. Hill, Jr.
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana                                      George P. Sherman
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Corey Bullock,                                             July 5, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A05-1706-CR-1247
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Kurt Eisgruber,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 49G01-1412-MR-53684



      Vaidik, Chief Judge.


                                             Case Summary
[1]   Corey Bullock was charged with three counts relating to the death of his

      girlfriend’s infant daughter: murder, aggravated battery, and neglect of a

      dependent. The jury hung on the murder count but found him guilty on the


      Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018                  Page 1 of 10
      other counts. Following the trial court’s declaration of a mistrial on the murder

      count, the court allowed the State to retry Bullock on all three counts, and the

      court found him guilty of murder and neglect in a bench trial.


[2]   Bullock now appeals, arguing that the trial court entered judgment of

      conviction after the first trial and the State was therefore barred from retrying

      him according to the statutory double-jeopardy principles discussed by the

      Indiana Supreme Court in Cleary v. State, 23 N.E.3d 664 (Ind. 2015). Although

      there are Chronological Case Summary (CCS) entries from the last day of the

      jury trial that include the word “Judgment,” the court clarified shortly thereafter

      that it had not actually entered judgment of conviction. Because there was no

      judgment of conviction, the State was not barred from retrying Bullock on all

      three counts. We therefore affirm the trial court.



                             Facts and Procedural History
[3]   In July 2014, Bullock moved in with Apryl Hammer and her infant daughter,

      Aiva McGee, in an Indianapolis apartment. Bullock, who was not the father of

      Aiva, cared for Aiva while Hammer worked. On September 30, Hammer went

      to work and left nine-month-old Aiva in Bullock’s care. Shortly after Hammer

      left for work, Aiva stopped breathing. Bullock called his mother, who then

      called 911. Aiva, who was covered in bruises, was taken to Riley Hospital for

      Children and placed on life support. Testing revealed that Aiva had

      experienced a “significant and severe brain injury.” Tr. Vol. III p. 89. She had

      subdural and subarachnoid hemorrhages on both sides of her head and retinal

      Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018   Page 2 of 10
      hemorrhages behind her left eye. Aiva also had a lacerated liver and rib

      fractures that were in the healing stages. Aiva was taken off life support and

      passed away on October 2. The cause of death was blunt-force injury of the

      head. The police interviewed Bullock, and he denied inflicting the injuries on

      Aiva. Rather, he claimed that Aiva “bang[ed] her head a lot” when she

      crawled and moved around. Id. at 163. Bullock also said he had never seen

      Hammer harm Aiva. Id. at 165.


[4]   In December 2014, the State charged Bullock with three counts in connection

      with Aiva’s death: Count I: murder, Count II: Level 3 felony aggravated

      battery, and Count III: Level 3 felony neglect of a dependent resulting in serious

      bodily injury.1 Bullock’s jury trial was held from October 31 to November 2,

      2016. After several hours of deliberations on November 2, the jury told the trial

      court that it could not reach a verdict on the murder count but that it had

      reached verdicts on the other counts. The jury found Bullock guilty on Counts

      II and III, and the trial court declared a mistrial as to Count I and set a “pretrial

      conference” to discuss how to proceed given the jury’s verdicts. Supp. Tr. Vol.



      1
        The charging information for Level 3 felony neglect of a dependent resulting in serious bodily injury alleges
      that Bullock placed Aiva in a situation that endangered her life or health (failed to obtain timely medical
      attention for her), which resulted in her death. Appellant’s App. Vol. II pp. 39, 147. According to the
      neglect statute, the offense can be elevated to a Level 1 felony based on the death of a dependent less than
      fourteen years old but only if the defendant is at least eighteen years old. See Ind. Code § 35-46-1-4(a), (b)(3).
      Bullock was seventeen years old at the time of Aiva’s death.
      Hammer, who was twenty-two years old at the time of Aiva’s death, was charged with murder, Level 3
      felony aggravated battery, and Level 1 felony neglect of a dependent resulting in death. She pled guilty to
      Level 1 felony neglect of a dependent and was sentenced to thirty years, with twenty years executed and ten
      years suspended. Ex. 74.



      Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018                              Page 3 of 10
      IV p. 3. Neither party asked the court to enter judgment of conviction on

      Counts II and III, and the trial court did not orally do so either. In fact, the

      court never used the word “judgment” or “conviction.” Id. at 2-5. And as

      Bullock concedes on appeal, there is “[n]o written judgment . . . in the record”

      entering judgment of conviction on Counts II and III. Appellant’s Br. p. 17.

      The following entries, however, appear in the CCS:




      Appellant’s App. Vol. II p. 17.


[5]   The pretrial conference was held the following week “to determine a direction”

      for the case. Supp. Tr. Vol. IV p. 9. The court reiterated that there were “guilty

      findings” (not “convictions”) for “two of the three counts.” Id. The trial court

      asked the State how it wanted to proceed, and the prosecutor responded,

      “Judge, we would like the murder count to be reset for trial [because] the State

      does intend to move forward with trial.” Id. Defense counsel said she planned

      to file a motion to dismiss raising “double jeopardy.” Id. The court set a trial

      date for a few months out and said it would hold a hearing on the double-

      jeopardy issue once both sides briefed the issue.



      Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018    Page 4 of 10
[6]   Defense counsel then filed a motion to dismiss alleging that “[d]ouble jeopardy

      precludes retrial of the Defendant on Count I, Murder, due to the conviction of

      the lesser included offense of Count II, Aggravated Battery.” Appellant’s App.

      Vol. II p. 186 (emphasis added). The State filed a response arguing that there

      was no double-jeopardy violation in retrying Bullock because the trial court had

      not yet entered judgment of conviction. Id. at 199. Accordingly, the State

      argued that Cleary controlled this case. Id. at 202-03.


[7]   In Cleary, the defendant was charged with, among other things, Count I: felony

      operating a motor vehicle with a BAC of at least 0.15 causing death, Count II:

      felony operating a motor vehicle while intoxicated causing death, Count III:

      misdemeanor operating a motor vehicle with a BAC of at least 0.15, Count IV:

      misdemeanor operating a motor vehicle while intoxicated in a manner that

      endangers a person, and Count V: misdemeanor operating a motor vehicle

      while intoxicated. The jury reached verdicts of guilty on Counts IV and V but

      deadlocked on Counts I-III. The defendant was retried on all counts, and the

      jury found him guilty on Counts I-V; the trial court entered judgment of

      conviction on Count I only. The defendant appealed, arguing that retrying him

      violated Indiana’s statutory double-jeopardy protections, specifically, Indiana

      Code section 35-41-4-3. Section 35-41-4-3(a) provides that a prosecution is

      barred if (1) there was a former prosecution of the defendant “based on the

      same facts and for commission of the same offense” and (2) “the former

      prosecution resulted in an acquittal or a conviction of the defendant (A

      conviction of an included offense constitutes an acquittal of the greater offense,

      Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018   Page 5 of 10
      even if the conviction is subsequently set aside.).” (Emphases added). Our

      Supreme Court found no statutory double-jeopardy violation in Cleary because

      the trial court had not entered judgment of conviction on Counts IV and V: “It

      is unequivocal that if the trial court had entered a judgment of conviction for

      those lesser-included misdemeanors, [Section] 35-41-4-3(a) would have barred

      the State from retrying Cleary on Counts I, II and III.” 23 N.E.3d at 668.2 Our

      Supreme Court explained that a guilty verdict and a judgment of conviction are

      “two rather different things.” Id. (quotation omitted). In other words, a guilty

      verdict is only a significant legal event “if a court later enters judgment on it.”

      Id. Because the trial court had not entered judgment of conviction on the lesser-

      included offenses, our Supreme Court found that retrial was permissible.


[8]   A hearing on Bullock’s motion to dismiss was held in December 2016. At the

      hearing, the trial court asked defense counsel how she could “defeat Cleary.”

      Tr. Vol. II p. 87. Defense counsel responded that “even though judgment of

      conviction wasn’t formally entered,” it had been for “all intents and

      purposes.” Id. at 89 (emphasis added). Defense counsel argued that the

      November 2 CCS entries coupled with the fact that the trial court had file-

      stamped the signed jury-verdict forms for Counts II and III had “the effect of




      2
       The defendant also argued that there was a violation of Indiana’s constitutional double-jeopardy
      protections. However, our Supreme Court had this to say about the defendant’s constitutional argument:
      “To an extent, then, our conclusion that Indiana Code § 35-41-4-3(a) does not apply to Cleary’s case
      necessarily sounds a death knell for this argument.” Cleary, 23 N.E.3d at 673. Although Bullock makes both
      arguments here as well, he does not claim that Indiana constitutional double-jeopardy principles provide him
      with more protection than the statute.

      Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018                         Page 6 of 10
      judgment of conviction.” Id. In February 2017, the court entered an order

      denying Bullock’s motion to dismiss. The court found, in part:


              In Cleary, [the Indiana Supreme Court] distinguishes jury verdicts
              from convictions. Jury verdicts only gain . . . legal significance
              when a judgment of conviction is entered by the Court. Here,
              the jury rendered a verdict on November 2, 2016. However, to
              date, despite the CCS entry on November 2, this Court has not
              entered judgment of conviction on the verdicts rendered.


      Appellant’s App. Vol. II p. 216 (emphasis added, citation omitted). The court

      explained why the entries appeared in the CCS in the first place:


              On November 2, 2016, the following entry was made by Court
              One on Odyssey: “Judgment Entry on Jury Verdict.” This entry
              was followed by a separate entry “Judgment” followed by the
              counts reflecting the guilty verdicts of the jury. This post trial
              entry had been standard operating procedure for Court One.
              Going forward, the second entry will be clarified to reflect the
              jury verdict only. Regardless, without exception, this Court has
              set jury verdicts for sentencings at which time judgments of
              conviction are entered.


      Id. at 214 n.1.


[9]   Bullock then waived his right to a jury trial and was retried on all three counts

      in March 2017. The trial court found him guilty on Counts I and III but not

      guilty on Count II. The court sentenced Bullock to concurrent terms of fifty

      years (with the final four years to be served on community corrections) for

      Count I and 545 days for Count III, which the court reduced from a Level 3 to

      a Level 6 felony.

      Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018      Page 7 of 10
[10]   Bullock now appeals.



                                    Discussion and Decision
[11]   Relying on the holding from Cleary that if a trial court enters judgment of

       conviction, retrial for the same offense is barred, Bullock argues that the trial

       court entered judgment of conviction for aggravated battery (which is the “same

       offense” as murder) and the State was therefore barred from retrying him.3


[12]   Bullock’s argument, however, fails at the start because we find that the trial

       court did not enter judgment of conviction after the first trial. In support of his

       claim that judgment of conviction had been entered, Bullock relies on the

       November 2 CCS entries. Notably, the parties did not ask the trial court to

       enter judgment of conviction, the court did not orally do so, and there is no

       written judgment doing so (even though the CCS says that there is). The court

       then scheduled a “pretrial conference,” which indicates that it was

       contemplating the possibility of a second trial. At the beginning of that

       conference, the court reiterated that there were “guilty findings” (not

       “convictions”) for two of the counts and said that the parties were there to

       determine “a direction” for the case, which indicates that nothing formal or



       3
         Bullock concedes that the implied-acquittal doctrine does not apply to this case because “the jury expressly
       stated it was unable to reach a verdict on Count I, murder.” Appellant’s Br. p. 28 n.6; see Cleary, 23 N.E.3d
       at 671-72 (“Indiana Code § 35-41-4-3(a)(1) codifies the implied acquittal doctrine, but nothing in the statute
       expands the doctrine to include circumstances where the jury affirmatively states that it has deadlocked on
       the greater offense. Accordingly, because the jury affirmatively deadlocked on the greater offenses at
       Cleary’s first trial rather than remaining silent as to those counts, Section 35-41-4-3(a)’s implied acquittal
       provision is not implicated.” (footnotes omitted)).

       Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018                            Page 8 of 10
       final had been done yet. Moreover, at the motion-to-dismiss hearing, defense

       counsel conceded that judgment of conviction hadn’t been “formally entered.”

       Tr. Vol. II p. 89. The court then clarified that it had not entered judgment of

       conviction, notwithstanding the November 2 CCS entries.


[13]   Nevertheless, Bullock claims that because we have said the CCS is an official

       record of the trial court and the court speaks through its docket, see Caruthers v.

       State, 58 N.E.3d 207, 210 n.2 (Ind. Ct. App. 2016), we should “find the CCS

       accurately reflected what happened in the trial court,” Appellant’s Reply Br. p.

       8. But even if we were to treat the November 2 CCS entries as an entry of

       judgment, the trial court made clear that it was a mistaken entry because it did

       not actually enter judgment of conviction, and Bullock cites no authority that

       would prevent the court from going back and fixing its mistake. See Ind. Trial

       Rule 60(A) (“Of its own initiative or on the motion of any party and after such

       notice, if any, as the court orders, clerical mistakes in judgments, orders, or

       other parts of the record and errors therein arising from oversight or omission

       may be corrected by the trial court at any time before the Notice of Completion

       of Clerk’s Record is filed . . . .”). It is true that Cleary provides that had the trial

       court “entered a judgment of conviction” for the lesser-included offenses, the

       State would have been barred from retrying the defendant on the greater

       offenses. 23 N.E.3d at 668. However, the point our Supreme Court was

       making is that there can’t be a retrial on the greater offenses when there is a

       judgment of conviction on the lesser-included offenses. The Court did not say

       that retrial is barred if judgment of conviction is erroneously entered but then

       Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018       Page 9 of 10
       quickly vacated. Therefore, even if it could be said that the November 2 CCS

       entries in this case amounted to an entry of judgment by the trial court on

       Counts II and III, the court promptly vacated that judgment, and the State was

       not barred from retrying Bullock on Counts I-III.4


[14]   Affirmed.


       Pyle, J., and Barnes, Sr. J., concur.




       4
        In light of this holding, we do not address Bullock’s argument that aggravated battery and murder are the
       “same offense.”

       Court of Appeals of Indiana | Opinion 49A05-1706-CR-1247 | July 5, 2018                        Page 10 of 10
