MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Sep 30 2019, 10:36 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry Tripp,                                             September 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-198
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc Rothenberg,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G02-1808-F4-28855



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-198 | September 30, 2019               Page 1 of 5
                                                 Case Summary

[1]   Terry Tripp appeals his sentence, received pursuant to his guilty plea, for

      burglary, a Level 5 felony, and his habitual offender enhancement. We

      remand.


                                                        Issue

[2]   Tripp raises two issues; however, we find one to be dispositive, which is

      whether we should remand to the trial court for correction of an erroneous

      sentence. 1


                                                        Facts

[3]   On August 29, 2018, the State charged Tripp with Count I, burglary, a Level 4

      felony; and Count II, attempted theft, a Class A misdemeanor. The State then,

      on September 7, 2018, amended Count I to be a Level 5 felony. 2 On November

      13, 2018, the State filed a notice of habitual offender allegation.


[4]   Tripp pleaded guilty to Count I and the habitual offender enhancement, and the

      State dismissed Count II. The factual basis for the offense, which Tripp

      admitted to, was that “[o]n or about August 28th, 2018[, Tripp did break] and

      enter a structure which was a residence [of Dennis Taylor], however, it was not




      1
        Due to our conclusion that remand is appropriate to correct Tripp’s erroneous sentence, we do not address
      the issue of whether Tripp’s sentence was inappropriate in light of the nature of the offense and Tripp’s
      character.
      2
       At the plea hearing, the State acknowledged that the reason for the change was because the burglary
      occurred at an “uninhabited house.” Tr. Vol. II p. 6.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-198 | September 30, 2019                Page 2 of 5
      being used as a residence at that time,” with the intent to commit the crime of

      theft. Tr. Vol. II pp. 10-11. Tripp also admitted to two other convictions to

      support his habitual offender status: (1) burglary, a Class C felony, on October

      10, 2003; and (2) burglary, a Class B felony, on October 3, 2006.


[5]   At the sentencing hearing, the trial court stated that Tripp would be sentenced

      to ten years, with six of those years to be spent incarcerated at the Department

      of Correction (“DOC”). Tripp was also placed in the Purposeful Incarceration

      program which, if Tripp completed, the trial court agreed to “modify some of

      that portion of the six years.” Tr. Vol. II p. 39. The trial court then indicated

      that “[f]our years will be suspended. Three years will be placed on probation.”

      Id. Finally, the trial court stated:


              I do note that the three years is the advisory sentence on the
              Level 5. The other three years are the portion due to the
              Habitual Offender. And again, you do your Purposeful
              Incarceration and that will lessen.


      Id. The trial court’s written order sentences Tripp to “10 Year(s) and 0 Day(s)”

      with “4 Year(s) and 0 Day(s)” suspended. Appellant’s App. Vol. II p. 11. The

      written sentencing order also includes “Sentencing Conditions” including

      probation for “3 years,” effective on December 21, 2018—the date of

      sentencing. Id. Tripp now appeals.


                                                   Analysis

[6]   Tripp argues that his sentence was illegal because, although the trial court

      indicated it was sentencing Tripp to three years in the DOC for Count I, and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-198 | September 30, 2019   Page 3 of 5
      three years for the habitual offender enhancement, the trial court did not

      indicate where the remaining four years, which were suspended, applied.

      Accordingly, Tripp argues that “adding four years to the stated three year

      sentences on either [conviction] was not authorized by statute as the sentencing

      statutes only authorize a total of six years per each [conviction],” pursuant to

      Indiana Code Sections 35-50-2-6(b) 3 and 35-50-2-8(i)(2). 4 Appellant’s Br. p. 11.


[7]   The State agrees that “clarification is needed from the trial court and this Court

      should remand for clarification and correction of the erroneous sentence to

      impose a sentence consistent with sentencing parameters.” Appellee’s Br. p. 8. 5

      Based on this concession, we remand to the trial court to clarify and correct

      Tripp’s sentence.


                                                      Conclusion

[8]   Pursuant to the State’s concession that Tripp’s sentence should be remanded to

      the trial court for clarification and correction, we remand.




      3
        “A person who commits a Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and six
      (6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-2-6(b).
      4
       “The court shall sentence a person found to be a habitual offender to an additional fixed term that is
      between: . . . two (2) years and six (6) years, for a person convicted of a Level 5 or Level 6 felony.” Ind.
      Code § 35-50-2-8(i)(2).
      5
       The State makes a different argument than Tripp regarding how the sentence may have been split up,
      namely, that the trial court could have given Tripp six years on Count I—three suspended—and four years
      on the habitual offender enhancement, which would have been permissible under Indiana Code Section 35-
      50-2-8(i)(2). The State, however, correctly points out that, even if this was the trial court’s intent, the trial
      court would have erred in suspending that fourth year of the habitual offender enhancement, because
      additional terms imposed under Indiana Code Section 35-50-2-8 are “nonsuspendible.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-198 | September 30, 2019                      Page 4 of 5
[9]   Remanded.


      Brown, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-198 | September 30, 2019   Page 5 of 5
