MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Mar 03 2016, 8:41 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Gregory F. Zoeller
Marion County Public Defender –                          Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gordon Childress,                                        March 3, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1506-CR-720
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
Appellee-Plaintiff.                                      Judge, Pro Tempore
                                                         Trial Court Cause No. 49G10-
                                                         1412-CM-54449



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016       Page 1 of 6
[1]   In December of 2014, Appellant-Defendant Gordon Childress was charged

      with Class A misdemeanor theft after he and a friend attempted to steal a

      reciprocating saw and some Febreeze air fresheners from an Indianapolis-area

      Home Depot store. Following a June 9, 2015 bench trial, Childress was found

      guilty as charged and was sentenced to a term of 365 days. As part of his

      sentence, Childress was ordered to stay away from all Home Depot stores

      located in Marion County for 363 days (the “stay-away order”). Childress

      subsequently filed the instant appeal, arguing that the trial court abused its

      discretion in sentencing him. The trial court issued an amended sentencing

      statement on December 11, 2015, clarifying that Childress was given credit for

      two days served and the remaining 363 days of his sentence were suspended.

      The amended sentencing statement again included the stay-away order.


[2]   On February 19, 2016, Childress and Appellee-Plaintiff the State of Indiana (the

      “State”) filed a joint motion to remand the matter to the trial court. In this joint

      motion, the parties asserted that the trial court lacked jurisdiction to issue the

      amended sentencing statement because the instant appeal had already been

      filed. The parties also asserted that because the trial court did not place

      Childress on probation, the stay-away order must be vacated. Concluding that

      the parties’ assertions in the joint motion are correct, we grant the parties’ joint

      motion. In doing so, we reverse the sentencing order of the trial court and

      remand the matter to the trial court with instructions to enter an order that is

      consistent with this memorandum decision.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016   Page 2 of 6
                            Facts and Procedural History
[3]   On December 9, 2014, Ryan Taylor, an Asset Protection Specialist at the Home

      Depot store located at 21st Street and Post Road in Indianapolis, observed

      Childress enter the store with Debra Lamb. During their visit to the store,

      Taylor observed Lamb place several items, including a reciprocating saw and

      some Febreeze air fresheners, into Lamb’s purse. Neither Childress nor Lamb

      attempted to pay for the items placed in Lamb’s purse.


[4]   After Lamb walked past all points of purchase, Taylor approached and detained

      Lamb and Childress. Childress and Lamb initially indicated that Childress had

      nothing to do with the theft. However, Childress subsequently indicated that he

      had agreed to participate in the theft because neither he nor Lamb were

      working and they needed money to pay their rent and to buy cigarettes,

      groceries, and gas. Taylor subsequently recovered the reciprocating saw and

      the Febreeze air fresheners from Lamb’s purse.


[5]   On December 9, 2014, the State charged Childress with Class A misdemeanor

      theft. Pursuant to the State’s request, the trial court ordered Childress to stay

      away from all Home Depot stores located in Marion County until the

      conclusion of trial. On June 9, 2015, following the conclusion of a bench trial,

      the trial court found Childress guilty.


[6]   At sentencing, the State requested that a stay-away order “be in place for a year

      from the Home Depot stores.” Tr. p. 72. The trial court sentenced Childress to

      a term of 365 days, with credit for two days of time served, and ordered

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016   Page 3 of 6
      Childress to complete sixty-four hours of community service, with credit for

      twenty-eight hours which had already been completed. The trial court also

      issued the requested stay-away order.


[7]   The trial court’s oral sentencing statement and written sentencing order initially

      contained conflicting information as to whether the remaining 363 days of

      Childress’s sentence were to be served in the Marion County Jail or were

      suspended. The trial court later amended its sentencing order to specify that the

      remaining 363 days were suspended.                This amended sentencing statement was

      issued after the instant appeal had be initiated.


[8]   On February 19, 2016, Childress and the State filed a joint motion requesting

      this court to remand the matter to the trial court. In this joint motion, the

      parties jointly assert that although the trial court’s amended sentencing

      statement reflected the parties’ understanding of the original sentence imposed

      against Childress, the trial court lacked jurisdiction to issue the amended

      sentencing statement because the instant appeal had already been filed. The

      parties also agreed that pursuant to Indiana Code sections 35-50-7-1 and 35-50-

      7-2, a stay-away order may only be issued when the defendant is placed on

      probation. Accordingly, the parties jointly assert that because the trial court did

      not place Childress on probation, the stay-away order must be vacated.



                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016   Page 4 of 6
                I. Remand for Correction of Sentencing Order
[9]    As the above-stated facts indicate, there was initially an inconsistency between

       the trial court’s oral and written sentencing statements as to whether 363 days

       of Childress’s sentence was to be executed in the Marion County Jail or

       suspended. On December 11, 2015, the trial court issued an amended

       sentencing statement in which it clarified that the 363 days in question were

       suspended. However, despite the fact that the amended sentencing statement

       accurately reflected the parties’ understanding of the original sentence imposed

       against Childress, the trial court lacked jurisdiction to issue the amended

       sentencing order because the instant appeal had already been filed. See

       generally, Ind. Appellate Rule 8. As such, we grant the parties’ joint motion and

       remand the instant matter to the trial court with instructions for the trial court

       to enter an amended sentencing order which is consistent with the trial court’s

       December 11, 2015 amended sentencing statement.


                                       II. Stay-Away Order
[10]   Indiana Code section 35-50-3-1 provides that a trial court “may suspend any

       part of a sentence for a misdemeanor” and, if the trial court does so, “it may

       place the person on probation.” (Emphasis added). When an individual is

       placed on probation, the trial court “may issue an order … that prohibits the

       person from entering the: (1) area or property where an offense was committed

       by the person[.]” Ind. Code § 35-50-7-2 (emphasis added).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016   Page 5 of 6
[11]   Indiana Code section 35-50-7-2 clearly indicates that a stay-away order may

       only be issued when a defendant is placed on probation. The parties assert that

       because Childress was not placed on probation, the trial court abused its

       discretion in imposing the stay-away order. The parties therefore request that

       on remand, the trial court be instructed to vacate the stay-away order. Given

       the language of Indiana Code section 35-50-7-2, we conclude that because the

       trial court did not place Childress on probation, the issuance of the stay-away

       order amounted to an abuse of the trial court’s discretion. We therefore reverse

       the sentencing order of the trial court and remand the matter to the trial court

       with instructions to enter a new order consistent with this opinion.1


[12]   The judgment of the trial court is reversed and remanded with instructions.


       Baker, J., and Bailey, J., concur.




       1
         In granting the parties’ joint motion, we also grant the parties’ joint request to vacate the oral argument
       scheduled in this matter for April 14, 2016.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-720 | March 3, 2016                   Page 6 of 6
