                                                                     FILED
                                                                Jan 10 2017, 8:01 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks                                          Curtis T. Hill
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Matthew B. Mackenzie
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Jacob Skipworth,                                           January 10, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1605-CR-973
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                        Judge
                                                           The Honorable Steven J. Rubick,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49G01-1512-F5-44343



Robb, Judge.




Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017             Page 1 of 9
                                  Case Summary and Issue
[1]   Following a bench trial, Jacob Skipworth was convicted of criminal

      confinement and strangulation, both Level 6 felonies. The trial court sentenced

      Skipworth to one year for each conviction, to be served concurrently. The trial

      court gave Skipworth 258 days’ credit for time served and ordered the

      remaining 107 days to be suspended to probation. As a condition of probation,

      the trial court ordered Skipworth to complete twenty-six weeks of domestic

      violence counseling, and stated if Skipworth complied with all conditions of

      probation, it would grant alternate misdemeanor sentencing. Skipworth now

      appeals, raising one issue that we expand and restate as two: (1) whether the

      trial court abused its discretion in ordering domestic violence counseling, and

      (2) whether the trial court’s oral and written sentencing statements conflict.

      Concluding the trial court did not abuse its discretion, but that the Sentencing

      Order and Abstract of Judgment contain clerical errors, we affirm and remand

      to the trial court to correct these errors.



                             Facts and Procedural History
[2]   In the afternoon of December 9, 2015, Skipworth returned to the apartment he

      shared with his former girlfriend, Amber Parke. Skipworth arrived in a

      paranoid and erratic state of mind, telling Parke “people . . . were there to get

      him, harm him, kill him, and [that] . . . people were even on the roof.”

      Transcript at 16. When Parke attempted to persuade him that no one was after

      him, Skipworth became irate and jumped on top of her. Skipworth straddled

      Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017   Page 2 of 9
      Parke, placed his hands around her neck, and strangled her for two to five

      minutes before he stopped. At some point, Skipworth had also grabbed two

      kitchen knives; he held one to Parke’s throat and wielded the other knife in a

      “threatening manner.” Id. at 24. He told Parke to “be quiet because he didn’t

      want people to hear [them] . . . and that there [were] people out to get him[.]”

      Id. at 23. Eventually, Skipworth received a phone call from his mother and

      went outside, allowing Parke to call the police.


[3]   The State charged Skipworth with Count I, Intimidation, a Level 5 felony;

      Count II, Criminal Confinement, a Level 5 felony; Count III, Strangulation, a

      Level 6 felony; Count IV, Criminal Recklessness, a Level 6 felony; Count V,

      Domestic Battery, a Class A misdemeanor; Count VI, Battery Resulting in

      Bodily Injury, a Class A misdemeanor; and Count VII, Interference with

      Reporting a Crime, a Class A misdemeanor. A bench trial was held in March

      2016, and the trial court dismissed Count V, Domestic Battery, following

      Skipworth’s motion for involuntary dismissal. The trial court found Skipworth

      guilty of Criminal Confinement, a Level 6 felony and the lesser included offense

      of Count II, and Count III, Strangulation.


[4]   At the sentencing hearing, the trial court sentenced Skipworth to one year on

      each conviction, to be served concurrently. The trial court gave Skipworth 258

      days’ credit for time served, and suspended the remaining 107 days to

      probation. The trial court further stated,

              He is placed on probation for a period of—or for the remainder
              of his one year sentence. While on probation he is to have no

      Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017   Page 3 of 9
              contact with the alleged victim in this case. He is to enroll in and
              complete a term of domestic counseling. Upon completion of his
              domestic violence counseling alternate misdemeanor sentencing
              shall be granted.


      Id. at 105. When the trial court issued its written Sentencing Order and

      Abstract of Judgment, the trial court ordered Skipworth to complete “26

      weeks” of domestic violence counseling and stated that upon successful

      completion of probation, alternate misdemeanor sentencing “shall be

      considered.” Appellant’s Appendix at 14, 16. Skipworth now appeals. 1



                                  Discussion and Decision
                            I. Domestic Violence Counseling
[5]   Skipworth first argues the trial court abused its discretion in ordering domestic

      violence counseling. Specifically, he asserts because he was not convicted of

      domestic battery, it was unreasonable for the trial court to order him to enroll in

      and attend a domestic violence counseling course.


[6]   We review a trial court’s sentencing decisions for an abuse of discretion.

      McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007). An abuse of discretion

      occurs when a sentencing decision is “clearly against the logic and effect of the




      1
        Skipworth was on parole at the time he committed these crimes. Following his sentencing, he was
      remanded to the Indiana Department of Correction and will not begin probation for this case until he has
      completed his current sentence.

      Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017                     Page 4 of 9
      facts and circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.” Id. (citation omitted).


[7]   Initially, we note trial courts have broad discretion in determining the

      appropriate conditions of a defendant’s probation. Howe v. State, 25 N.E.3d

      210, 213 (Ind. Ct. App. 2015). This discretion is limited only by the principle

      that the conditions imposed must be reasonably related to the treatment of the

      defendant and the protection of public safety. Id. Further, Indiana Code

      section 35-38-2-2.3(a)(4) permits a trial court to, as a condition of probation,

      require a person to “[p]articipate in a treatment program, educational class, or

      rehabilitative service . . . .”


[8]   We are unpersuaded Skipworth cannot be ordered to take domestic violence

      counseling simply because he was not convicted of domestic battery. As noted

      above, the trial court dismissed the domestic battery charge following

      Skipworth’s motion for involuntary dismissal. In dismissing the charge, the

      trial court noted Parke’s 911 call referred to Skipworth and herself as “just

      roommates.” Tr. at 72. However, this does not fully describe their

      relationship. The record is clear Skipworth and Parke previously had an

      intimate relationship for several months and lived together at multiple

      residences. Following their break-up, Skipworth moved out for several months

      before returning and living with Parke as “just roommates.” Regardless of their

      self-described “roommate” relationship, Skipworth’s convictions of

      strangulation and criminal confinement involving a woman he had a previous

      intimate relationship with contain characteristics of domestic violence and the

      Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017   Page 5 of 9
      trial court’s dismissal of the domestic battery charge has no bearing on its ability

      to assess whether domestic violence counseling is necessary as a treatment

      program. Therefore, domestic violence counseling is reasonably related to

      Skipworth’s treatment, and the trial court did not abuse its discretion in

      ordering Skipworth to complete domestic violence counseling.2


                II. Conflict Between Oral and Written Sentencing
                                 Statements
[9]   Skipworth also contends there are two inconsistencies between the trial court’s

      oral sentencing statement and its written Sentencing Order and Abstract of

      Judgment. When oral and written sentencing statements conflict, we examine

      them together to discern the intent of the sentencing court. Walker v. State, 932

      N.E.2d 733, 738 (Ind. Ct. App. 2010). We may remand the case for correction

      of clerical errors if the trial court’s intent is unambiguous. Id. (citing Willey v.

      State, 712 N.E.2d 434, 445 n.8 (Ind. 1999) (“Based on the unambiguous nature

      of the trial court’s oral sentencing pronouncement, we conclude that the

      Abstract of Judgment and Sentencing Order contain clerical errors and remand

      this case for correction of those errors.”).




      2
        Skipworth also asserts it was improper for the trial court to condition alternate misdemeanor sentencing on
      his completion of domestic violence counseling. See Ind. Code § 35-50-2-7(c) (stating a trial court may enter
      judgment on a Level 6 felony as a Class A misdemeanor). However, Indiana Code section 35-38-1-1.5
      expressly allows the trial court to condition alternate misdemeanor sentencing on a person’s fulfillment of
      certain conditions. The statute states, a “court may enter judgment of conviction as a Level 6 felony with the
      express provision that the conviction will be converted to a conviction as a Class A misdemeanor if the
      person fulfills certain conditions.” Ind. Code § 35-38-1-1.5(a).

      Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017                       Page 6 of 9
[10]   Skipworth argues that the trial court’s written sentencing statements erred by (1)

       making alternate misdemeanor sentencing discretionary upon successful

       completion of probation, and (2) requiring a twenty-six-week domestic violence

       counseling course as a condition of probation because it is impossible to

       complete before his suspended sentence expires. We agree with Skipworth that

       the written Sentencing Order and Abstract of Judgment contain clerical errors.


[11]   First, Skipworth argues the trial court erred by making alternate misdemeanor

       sentencing discretionary upon successful completion of probation. As noted

       above, the trial court stated at the sentencing hearing, “[u]pon completion of his

       domestic violence counseling alternate misdemeanor sentencing shall be

       granted.” Tr. at 105 (emphasis added). The Sentencing Order and Abstract of

       Judgment, however, state that alternate misdemeanor sentencing “shall be

       considered after successful completion of probation.” Appellant’s App. at 14, 16

       (emphasis added).


[12]   Although there is no guarantee that Skipworth will successfully complete his

       probation, Indiana Code section 35-38-1-1.5(d) clearly states the trial court

       “shall enter judgment of conviction as a Class A misdemeanor if the person

       fulfills the conditions set by the court.” The condition set by the trial court in its

       oral sentencing statement, and which we believe represents the unambiguous

       intent of the trial court, is that alternate misdemeanor sentencing shall be

       granted upon Skipworth’s successful completion of domestic violence

       counseling. If Skipworth meets this requirement, the statute mandates the trial

       court shall enter a judgment of conviction as a Class A misdemeanor without

       Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017   Page 7 of 9
       discretion to consider otherwise. Therefore, the written Sentencing Order and

       the Abstract of Judgment contain a clerical error and we remand to the trial

       court to correct the error.


[13]   Second, Skipworth argues the trial court ordered a condition of probation that

       is impossible for him to complete. As noted above, the trial court sentenced

       him to one year, awarded him 258 days’ credit for time served, and suspended

       the remaining 107 days to probation. In its oral sentencing statement, the trial

       court stated, “[Skipworth] is to enroll in and complete a term of domestic

       counseling. Upon completion of his domestic violence counseling alternate

       misdemeanor sentencing shall be granted.” Tr. at 105 (emphasis added). In the

       written Sentencing Order and Abstract of Judgment, the trial court noted

       alternate misdemeanor sentencing “shall be considered after successful

       completion of probation.” Appellant’s App. at 14, 16. By the terms of the

       Sentencing Order and Abstract of Judgment, for Skipworth to be eligible for

       alternate misdemeanor sentencing, he must successfully complete probation.

       To successfully complete probation, he must enroll in and complete a twenty-

       six-week (or 182-day) domestic violence counseling course, which is impossible

       to fulfill in 107 days.


[14]   We do not believe it was the trial court’s intent for Skipworth to complete

       domestic violence counseling as a condition of probation, as clearly this is an

       impossible achievement. Rather, to comply with his conditions of probation,

       Skipworth must (1) comply with all standard conditions of probation, and (2)

       enroll in and attend a twenty-six-week domestic violence counseling course

       Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017   Page 8 of 9
       until his probationary period terminates. If he wishes to become eligible for

       alternate misdemeanor sentencing and have his Level 6 felonies converted to

       Class A misdemeanors, he must complete the twenty-six-week domestic

       violence counseling course as ordered by the trial court. The alternate

       misdemeanor sentencing statute does not limit the trial court to the

       probationary period; rather, it only states “the conviction will be converted to a

       conviction as a Class A misdemeanor if the person fulfills certain conditions.”

       Ind. Code § 35-38-1-1.5(a). Therefore, if Skipworth wishes to obtain alternate

       misdemeanor sentencing, he must comply with the trial court’s conditions.

       However, we conclude the trial court’s Sentencing Order and Abstract of

       Judgment contains a clerical error conditioning alternate misdemeanor

       sentencing on the successful completion of probation rather than successful

       completion of domestic violence counseling and we remand to the trial court to

       correct this error.



                                                  Conclusion
[15]   We conclude the trial court did not abuse its discretion in ordering domestic

       violence counseling. However, the trial court’s Sentencing Order and Abstract

       of Judgment contain clerical errors and we remand to the trial court to correct

       those errors.


[16]   Affirmed and remanded.


       Kirsch, J., and Barnes, J., concur.

       Court of Appeals of Indiana | Opinion   49A02-1605-CR-973 | January 10, 2017   Page 9 of 9
