MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                       Oct 31 2017, 9:47 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              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
Linda L. Harris                                          Curtis T. Hill, Jr.
Kentland, Indiana                                        Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew S. Raines,                                        October 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         86A05-1705-CR-965
        v.                                               Appeal from the
                                                         Warren Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Hunter J. Reece, Judge
                                                         Trial Court Cause No.
                                                         86C01-1612-F6-52



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017         Page 1 of 12
[1]   Following a jury trial, Andrew S. Raines (“Raines”) was convicted of Level 6

      felony auto theft.1 Previously, Raines had pleaded guilty, in the same cause of

      action, to two counts of Class B misdemeanor false informing. 2 The trial court

      sentenced Raines on the three convictions, and he now appeals, raising the

      following two restated issues:


                 I. Whether the trial court abused its discretion in sentencing
                 Raines because, at the sentencing hearing, the trial court had
                 stated Raines was to serve his incarceration at Indiana
                 Department of Correction (“DOC”), but in its written sentencing
                 order, the trial court ordered Raines to serve his time at the
                 Warren County Jail; and


                 II. Whether the State, during the rebuttal portion of its closing
                 argument, committed prosecutorial misconduct that constituted
                 fundamental error.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On December 19, 2016, Raines was living with a woman known as Lela Faye

      (“Faye”) and her nine-year-old son (“Son”). Due to an altercation that was

      occurring at their residence, Faye instructed Son to run to the home of her

      friend, Patricia Stump (“Stump”), and summon help. Stump at that time was

      living with her then-boyfriend, Sean Ingram (“Ingram”), in an apartment.



      1
          See Ind. Code § 35-43-4-2.5(b)(1).
      2
          See Ind. Code § 35-44.1-2-3(d)(1).


      Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 2 of 12
      Stump’s friend, Rachel Cooper (“Cooper”), lived in the apartment located

      above Stump. Son knocked on Stump’s door and asked for help, and, in

      response, Stump and Cooper drove Son back to Faye’s house in Ingram’s

      Subaru Legacy vehicle, while Ingram remained with Stump’s children. When

      Stump and Cooper arrived, Faye and Raines were on the front porch. Stump

      and Cooper asked Raines to leave, an argument or an altercation ensued, and

      the police were called. Before police arrived, Raines ran from the house, got in

      Ingram’s Subaru, and drove away. Eight days later, on December 27, 2016,

      authorities found Ingram’s Subaru, along with Raines, in St. Louis, Missouri.


[4]   The State charged Raines with Count I, Level 6 felony auto theft and Counts II

      and III, Class B misdemeanor false informing. Appellant’s App. Vol. II at 2-3.

      On March 6, 2017, Raines pleaded guilty to the two counts of false informing,

      and, on March 23, 2017, a jury trial was held on the auto theft charge.


[5]   At trial, one issue was whether Ingram had given his consent to Raines to take

      the Subaru. Among other witnesses, Stump, Cooper, and Ingram testified for

      the State, and Raines testified in his defense. Stump stated that Raines did not

      ask her if he could take the Subaru before he left in it, and Cooper testified,

      “[Raines] asked nobody’s permission, he just walked out” and left in Ingram’s

      car. Tr. Vol. II at 59. Ingram testified that he gave his permission to Stump to

      take his car to Faye’s house, but he did not give his consent to Raines to use or

      take the Subaru on that date. Id. at 65, 66-67. Raines testified that he had

      driven Ingram’s car on several prior occasions and that Ingram previously had

      told him, “[Y]ou can use the car anytime you want it. Anytime that you need

      Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 3 of 12
      to use the car, you can use it.” Id. at 83. Raines stated that, to get away from

      the “commotion” at Faye’s home, he left in Ingram’s car and drove to Ingram’s

      house, where Ingram was on the front porch. According to Raines, Ingram

      suggested to Raines that he should “get out of here[,]” telling Raines that he

      would call him “when the smoke clears.” Id. at 82-83, 85.


[6]   During closing argument, defense counsel suggested that Ingram might have

      given his consent, as Raines claimed, but testified to the contrary because he did

      not want to contradict Stump. Counsel argued, “[Ingram]’s not going to do

      that. He wouldn’t do that because they live together, he doesn’t want the

      controversy.” Id. at 102. The State’s rebuttal included the following remarks,

      with which Raines now takes issue:


              The evidence that is established by people who have no motive to
              come here and lie to you. In fact, that’s the only way they can
              get in trouble. The only way they can get in trouble is to come in
              here and lie just as he did two [] prior occasions. There is no
              motive for them to do that, and they came in here and they told
              you what happened.


      Id. at 104. Raines did not object to the prosecutor’s comments.


[7]   The jury found Raines guilty of Level 6 auto theft. At the April 18, 2017

      sentencing hearing, the trial court sentenced Raines to two years on Count I

      and to 180 days each on Counts II and III, which were ordered to be served

      concurrent with each other and concurrent with Count I. At the hearing, the

      trial court stated that Raines was sentenced to “two years in the [DOC]” with

      credit for pretrial confinement. Id. at 124. In the trial court’s Judgment of
      Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 4 of 12
      Conviction and Pronouncement of Sentence, issued that same date, the trial

      court ordered that Raines was sentenced to “two [] years of incarceration in the

      Warren County Jail,” reduced by pretrial confinement.3 Appellant’s App. Vol. II

      at 33.


[8]   In May 2017, Raines filed a notice of appeal with this court, and, on July 18,

      2017, he filed with the trial court a motion to correct erroneous sentence, asking

      the trial court to correct its sentencing order “to reflect that [Raines] was

      sentenced to two years in [DOC] rather than two years in the Warren County

      Jail.” Appellee’s App. Vol. II at 19, 22. That same day, the trial court issued an

      order that denied the motion, explaining that, under Indiana Code section 35-

      38-3-3, which became effective on March 29, 2017, a trial court “may not

      commit a person convicted of a Level 6 felony to the [DOC]” unless certain

      circumstances existed, none of which were applicable to Raines and, thus, the

      trial court sua sponte “corrected its own mistake” and sentenced Raines to the

      Warren County Jail instead of DOC. Id. at 23. Thereafter, on August 11,

      2017, Raines filed his Appellant’s Brief and now appeals.




      3
        We note that on May 1, 2017, the trial court issued a Nunc Pro Tunc order for the April 28, 2017 Judgment
      of Conviction and Pronouncement of Sentence, adding a sentencing to state that Raines was indigent and
      that appointment of pauper counsel was warranted. Appellant’s App. Vol. II at 35-36.

      Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017         Page 5 of 12
                                      Discussion and Decision

                                               I. Sentencing
[9]    Raines argues that the trial court erred in sentencing him because, during the

       sentencing hearing, the trial court stated that it was sentencing Raines to two

       years in DOC, but its subsequent written Pronouncement of Sentence ordered

       Raines to two years of incarceration in the Warren County Jail. Raines did not

       provide us with an applicable standard of review, as required by Indiana

       Appellate Rule 46(A)(8)(b). Because the trial court sentenced Raines within the

       statutory range for his convictions, see Ind. Code sections 35-50-2-7 (Level 6

       felony) and 35-50-3-3 (Class B misdemeanor), we will review the trial court’s

       sentencing decision for an abuse of discretion. See Barker v. State, 994 N.E.2d

       306, 311 (Ind. Ct. App. 2013) (“[A]s long as a sentence is within the statutory

       range, it is subject to review only for an abuse of discretion.”). An abuse of

       discretion occurs where the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Id.


[10]   On appeal, Raines (1) restates what happened, i.e, that the trial court’s remarks

       at the hearing indicated he was sentenced to two years at DOC, but the written

       Pronouncement of Sentence ordered that he was sentenced to two years at the

       Warren County Jail, and (2) indicates that he would be filing a Motion to

       Correct Erroneous Sentence. Other than that, Raines presented no argument,

       reasoning, or authority in support of his position that the trial court abused its

       discretion when it sentenced him to the Warren County Jail rather than to



       Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 6 of 12
       DOC. Thus, his argument on this issue is waived. Ind. Appellate Rule

       46(A)(8)(a). Waiver notwithstanding, we find no error.


[11]   As an initial matter, we observe that Raines’s Appellant’s Brief, filed August 11,

       2017, states that he “will be filing a Motion to Correct Erroneous Sentence

       pursuant to I.C. 35-38-1-15 contemporaneously with the filing of Appellant’s

       Brief.” Appellant’s Br. at 9. However, the record before us reflects that, before

       he filed his Appellant’s Brief on August 11, Raines already had filed his Motion

       to Correct Erroneous Sentence on July 18, 2017 and that the trial court denied

       his motion the same day by written order (“the July 18 Order”), explaining:


               After imposing sentence [at the sentencing hearing], the Court
               recalled that recent legislation prohibited most [L]evel 6 felons
               from being incarcerated at DOC, absent an exception, thus the
               Court sua sponte corrected its own misstatement. Effective
               March 29, 2017, I.C. § 35-38-3-3 was amended to provide that “a
               court may not commit a person convicted of a Level 6 felony to
               the department of correction, unless . . .” one of the exceptions
               provided for in I.C. § 35-38-3-3(d)(l), (d)(2)(A), (d)(2)(b) or
               (d)(2)(C) are met. None of those exceptions applied here. The
               DOC’s acceptance or rejection of inmates, sentenced to
               incarceration, is not an issue for the trial court. Therefore, the
               Court’s Order made a correction to a statement that was
               merely dicta, as the Defendant’s placement was controlled by
               statu[t]e, not the Court.


               For the forgoing reasons, the Court finds and clarifies that the
               Defendant’s sentence on Count I was two (2) years of
               incarceration. Any reference to DOC or the Warren County Jail
               was dicta, and the Defendant may be incarcerated wherever
               appropriate, be it prison or jail. Though it appears from the facts
               of this case that he is not eligible to be incarcerated at DOC.

       Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 7 of 12
       Appellee’s App. Vol. II at 23 (emphasis added).


[12]   Although not raised by either party, we note that we had some question about

       the trial court’s jurisdiction to issue the July 18 Order.4 Under Indiana

       Appellate Rule 8, “[t]he Court on Appeal acquires jurisdiction on the date the

       trial court clerk issues its Notice of Completion of Clerk’s Record.” The

       general rule is that, once an appeal is perfected, the trial court loses subject

       matter jurisdiction over the case. Clark v. State, 727 N.E.2d 18, 20 (Ind. Ct.

       App. 2000). The policy underlying the rule is to facilitate the efficient

       presentation and disposition of the appeal and to prevent the simultaneous

       review of a judgment by both a trial and appellate court. Id. at 21.


[13]   Here, the CCS does not reflect a date of filing of Notice of Completion of

       Clerk’s Record; however, the CCS contains two separate dates of filing Notice

       of Completion of Transcript: June 16 and June 29, 2017. Raines’s Appellant’s

       Brief was initially tendered July 17, 2017, but officially filed, after correction of

       defects, on August 11, 2017. Given this timeline, and pursuant to Indiana

       Appellate Rule 45(B), requiring the appellant’s brief to be filed thirty days after

       Completion of the Clerk’s Record, we infer that the Clerk’s Record was

       complete before Raines tendered his Appellant’s Brief on July 17, 2017. Thus,

       the trial court’s July 18 Order was issued after this Court had acquired




       4
        “Subject matter jurisdiction cannot be waived, and courts are required to consider the issue sua sponte.”
       Watkins v. State, 869 N.E.2d 497, 499 (Ind. Ct. App. 2007).



       Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017             Page 8 of 12
       jurisdiction. However, while the general rule is that trial courts lose jurisdiction

       once the appeal is perfected, there are exceptions that permit the trial court to

       retain jurisdiction notwithstanding an appeal. “For example, a trial court may

       retain jurisdiction to reassess costs, correct the record, enforce a judgment,

       continue with a trial during an interlocutory appeal concerning venue, or

       preside over matters which are independent of and do not interfere with the

       subject matter of the appeal.” Clark, 727 N.E.2d at 21 (emphasis added). In

       this case, we find that the trial court’s July 18 Order did even less than “correct

       the record,” as that Order merely clarified that its written Pronouncement of

       Sentence “corrected its own misstatement” that was made at the sentencing

       hearing. Appellee’s App. Vol. II at 23. The trial court’s July 18 Order is thus not

       void for lack of jurisdiction, and we now turn to it.


[14]   The July 18 Order explained that, following the hearing that same date, the trial

       court realized that its statement at the hearing indicating that Raines would

       serve his two years at DOC was incorrect because, under Indiana Code section

       35-38-3-3(d), it could not sentence Raines to DOC. That statute reads:


               After December 31, 2015, a court may not commit a person
               convicted of a Level 6 felony to the department of correction
               unless:


                      (1) the commitment is due to the revocation of the person’s
               sentence for violating probation, parole, or community
               corrections and the revocation of the person’s sentence is due to a
               new criminal offense; or



       Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 9 of 12
                        (2) the person:


                               (A) is convicted of a Level 6 felony and the sentence
                        for that felony is ordered to be served consecutively to the
                        sentence for another felony;


                              (B) is convicted of a Level 6 felony that is enhanced
                        by an additional fixed term under IC 35-50-2-8 through IC
                        35-50-2-16; or


                              (C) has received an enhanced sentence under IC 9-
                        30-15.5-2;


               and the person’s earliest possible release date is more than three
               hundred sixty-five (365) days after the date of sentencing.


       Ind. Code § 35-38-3-3(d).


[15]   Raines was convicted of a Level 6 felony, and none of the statute’s exceptions

       applied to Raines; therefore, the trial court could not sentence Raines to DOC.

       Accordingly, Raines has failed to show that the trial court abused its discretion

       when it sentenced him to two years at the Warren County Jail.


                                  II. Prosecutorial Misconduct
[16]   Raines asserts that the State committed prosecutorial misconduct in its rebuttal

       closing argument by making “vouching statements” concerning “the State’s

       witnesses.” Appellant’s Br. at 10. Specifically, Raines challenges the following:


               The evidence that is established by people who have no motive to
               come here and lie to you. In fact, that’s the only way they can

       Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 10 of 12
               get in trouble. The only way they can get in trouble is to come in
               here and lie just as he did two [] prior occasions. There is no
               motive for them to do that, and they came in here and they told
               you what happened.


       Tr. Vol. II at 104. He claims that the State “implicitly told the jury, [‘]listen, my

       witnesses told you the truth because they didn’t get in trouble for coming before

       you and testifying[,] and therefore they are not lying.[’]” Appellant’s Br at 10.


[17]   “To preserve a claim of prosecutorial misconduct, the defendant must—at the

       time the alleged misconduct occurs—request an admonishment to the jury, and

       if further relief is desired, move for a mistrial.” Ryan v. State, 9 N.E.3d 663, 667

       (Ind. 2014). Raines concedes that at trial he did not pose any objection to the

       State’s closing argument, and, therefore, to avoid procedural default, he must

       establish fundamental error. Appellant’s Br. at 10 (citing Booher v. State, 773

       N.E.2d 814, 817 (Ind. 2002)). The fundamental error exception is an extremely

       narrow exception to the waiver rule and requires the defendant to show that the

       alleged errors are so prejudicial to his or her rights as to make a fair trial

       impossible. Ryan, 9 N.E.3d at 668. “In other words, to establish fundamental

       error, the defendant must show that, under the circumstances, the trial judge

       erred in not sua sponte raising the issue because alleged errors (a) constitute

       clearly blatant violations of basic and elementary principles of due process and

       (b) present an undeniable and substantial potential for harm.” Id. (internal

       quotations omitted).




       Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 11 of 12
[18]   The State maintains that the challenged rebuttal remarks were a permissible

       response to defense counsel’s closing argument, which implied that Stump and

       Cooper lied when testifying because they were upset with Raines and that

       Ingram lied because he lived with Stump and did not want to contradict her and

       thereby create controversy. According to the State, “‘The prosecutor was

       entitled to counter with argument that the witness[es were] not lying and had

       no reason to do so.’” Appellee’s Br. at 12 (quoting Dumas v. State, 803 N.E.2d at

       1113, 1118 (Ind. 2004)). Even assuming that the challenged portion of the

       State’s rebuttal argument constitutes vouching and prosecutorial misconduct, as

       Raines’s contends, we find that Raines’s claim fails as he has not established

       fundamental error. He has not argued or explained in what way the

       prosecutor’s comments were so prejudicial to him that a fair trial was

       impossible, nor has he shown that the trial judge erred in not sua sponte raising

       the issue. See Ryan, 9 N.E.3d at 668. Raines’s assertion of prosecutorial

       misconduct fails.


[19]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017   Page 12 of 12
