      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                                FILED
      this Memorandum Decision shall not be                                             Oct 24 2018, 5:51 am

      regarded as precedent or cited before any                                             CLERK
      court except for the purpose of establishing                                      Indiana Supreme Court
                                                                                           Court of Appeals
                                                                                             and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      P. Stephen Miller                                        Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                      Attorney General of Indiana

                                                               Laura R. Anderson
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Marvin J. Perkins,                                       October 24, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-692
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable Frances C. Gull,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               02D04-1607-CM-2633



      Shepard, Senior Judge.


[1]   Marvin Perkins borrowed a vehicle and did not return it. He pleaded guilty to

      Class A misdemeanor unauthorized entry of a motor vehicle and was sentenced


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-692 | October 24, 2018                     Page 1 of 6
      to one year executed in the Indiana Department of Correction (DOC). He

      appeals, arguing the trial court abused its discretion at sentencing. We affirm.



                             Facts and Procedural History
[2]   The facts most favorable to the judgment are that on July 4, 2016, Gregory Hale

      allowed Perkins to borrow his van, but Perkins did not return it. At some point,

      the vehicle was listed on the police department’s “hotsheet,” and officers were

      informed that Perkins was the individual who took the van. Appellant’s App.

      p. 9. On July 7, 2016, Perkins was seen driving the van by a Fort Wayne police

      officer. He was arrested and charged with unauthorized entry of a motor
                                                     1
      vehicle as a Class A misdemeanor.


[3]   On October 10, 2017, Perkins entered into a plea agreement and pleaded guilty
                     2
      as charged. A hearing was held, following which the guilty plea was taken

      under advisement, and Perkins was placed in the drug court diversion program.

      Per the participation agreement, if Perkins successfully completed the program,

      the State would agree to request dismissal of the charges against him.


[4]   On January 22, 2018, a verified petition to terminate the drug court program

      participation was filed, alleging that Perkins violated the terms of the




      1
       Ind. Code § 35-43-4-2.7 (2014). Perkins also was charged with driving while suspended, a traffic infraction,
      which was later dismissed and is not at issue on appeal.
      2
       He also pleaded guilty to Level 6 felony possession of cocaine, which was charged under a separate cause
      number. The matter is not at issue on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-692 | October 24, 2018                   Page 2 of 6
      participation agreement. That same day, Perkins withdrew from drug court.

      On February 22, 2018, the trial court found Perkins guilty, based on his earlier

      plea, and entered a conviction for unauthorized entry of a motor vehicle, as a

      Class A misdemeanor. It sentenced him to one year executed in the DOC.



                                                     Issue
[5]   The sole issue Perkins raises on appeal is whether the trial court abused its

      discretion by imposing a one-year executed sentence.



                                 Discussion and Decision
[6]   Sentencing decisions rest within the sound discretion of the trial court, and as

      long as a sentence is within the statutory range, it is subject to review only for

      an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified

      on reh’g, 875 N.E.2d 218. An abuse of discretion occurs when the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before it. Id. A trial court may abuse its discretion by failing to enter a

      sentencing statement, entering findings of aggravating and mitigating factors

      unsupported by the record, omitting factors clearly supported by the record and

      advanced for consideration, or giving reasons that are improper as a matter of

      law. Id.


[7]   Unauthorized entry of a motor vehicle is a Class B misdemeanor offense that

      can be charged as a Class A misdemeanor under certain circumstances. See

      Ind. Code § 35-43-4-2.7(d), -(e). Perkins contends that he pleaded guilty to
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-692 | October 24, 2018   Page 3 of 6
      unauthorized entry as a Class B misdemeanor, not as a Class A misdemeanor

      and that, because the sentence for a Class B misdemeanor may not exceed 180

      days, the trial court abused its discretion by imposing a sentence of one year.

      See Ind. Code § 35-50-3-2, -3. According to Perkins, the sentence imposed by

      the trial court was illegal and, thus, constituted fundamental error. See Ben-

      Yisrayl v. State, 908 N.E.2d 1223 (Ind. Ct. App. 2009) (any sentence contrary to,

      or violative of, penalty mandated by applicable statute is an illegal sentence,

      and a sentence that exceeds statutory authority is fundamental error and subject

      to correction at any time), trans. denied. We conclude that the trial court did not

      exceed its authority by imposing a one-year sentence, and that fundamental

      error did not occur.


[8]   Perkins was charged with unauthorized entry of a motor vehicle as a Class A

      misdemeanor. See Ind. Code § 35-43-4-2.7. His charging information read in

      relevant part:


              UNAUTHORIZED ENTRY OF A MOTOR VEHICLE
              I.C. 35-43-4-2.7
              3543427dMA

               . . . On or about the 7th day of July, 2016, said Defendant,
              having no contractual interest in a motor vehicle, to wit: Maroon
              2004 Chevy Venture Van owned by, [sic] Gregory Hale, did enter
              said vehicle, knowing that said Defendant did not have the
              permission of an owner, a lessee, or an authorized operator of
              said vehicle.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-692 | October 24, 2018   Page 4 of 6
       Appellant’s App. p. 10. The “3543427dMA” was a handwritten notation that

       seemed to indicate that Perkins was charged with the offense as a Class A

       misdemeanor. Id.


[9]    At his initial hearing, Perkins was told that he was charged with unauthorized

       entry as a Class A misdemeanor. At the guilty plea hearing, the trial court told

       Perkins that he was pleading guilty to unauthorized entry of a motor vehicle, a

       Class A misdemeanor. The trial court asked Perkins if he understood the

       charge to which he pleaded guilty, and Perkins replied: “Yes, I do.” Tr. p. 10.

       The court reiterated, “You’re pleading guilty to a . . . [C]lass ‘A’

       misdemeanor,” and Perkins replied, “Yes sir.” Id. The court explained that a

       Class A misdemeanor “carries a penalty of up to one (1) year in jail . . . .” Id.

       The court asked Perkins, “[H]ow do you plead to count I, unauthorized entry

       of a motor vehicle, a [C]lass ‘A’ misdemeanor?” Id. at 12. Perkins stated,

       “Guilty.” Id.


[10]   The trial court made it clear to Perkins that he was pleading guilty to a Class A

       misdemeanor and that he could be sentenced to up to one year. Perkins’

       argument to the contrary fails. His sentence was not illegal, no fundamental

       error occurred, and the trial court did not abuse its discretion at sentencing.



                                               Conclusion
[11]   For the foregoing reasons, we affirm the judgment of the trial court.


[12]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-692 | October 24, 2018   Page 5 of 6
Vaidik, C.J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-692 | October 24, 2018   Page 6 of 6
