MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                           Aug 26 2019, 8:14 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
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Calvin A. Lowe,                                          August 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-574
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Sean M. Persin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79C01-1808-F5-152



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019                      Page 1 of 8
                                    STATEMENT OF THE CASE
[1]   Appellant-Defendant, Calvin Lowe (Lowe), appeals his sentence following his

      guilty plea to attempted burglary, Ind. Code §§ 35-43-2-1, 35-41-5-1, a Level 5

      felony; resisting law enforcement using a vehicle, I.C. §§ 35-44.1-3-1(a)(3), 35-

      44.1-3-1(b)(1)(A), a Level 6 felony; and to being an habitual offender, I.C. § 35-

      50-2-8(a).


[2]   We affirm.


                                                           ISSUE
[3]   Lowe presents one issue on appeal, which we restate as: Whether remand is

      necessary for resentencing due to an inconsistency between the trial court’s oral

      and written sentencing statements.


                          FACTS AND PROCEDURAL HISTORY
[4]   On August 10, 2018, Lowe attempted to open the doors of a business, La

      Zacatecana, 1 in Lafayette, Indiana, when it was closed and without the

      permission of the owners. Lowe intended to commit a theft inside the business

      if he had been successful at entering. When officers of the Lafayette Police

      Department responded to an alarm signal, Lowe fled from them in his vehicle,

      despite the fact that he was aware that the officers were in pursuit. According

      to the probable cause affidavit filed in this case, officers noticed that the doors




      1
          This business is referred to as “La Sacatina” in the transcript. (Transcript Vol. II, p. 22).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019                      Page 2 of 8
      of two other businesses located in the same plaza as La Zacatecana “had their

      locks punched out and appeared to have been tampered with.” (Appellant’s

      App. Vol. II, p. 54).


[5]   On August 15, 2018, the State filed an Information, charging Lowe with three

      Counts of attempted burglary and one Count of resisting law enforcement using

      a vehicle. In a separate Information, the State alleged that Lowe was an

      habitual offender. On December 14, 2018, Lowe pleaded guilty to one Count

      of attempted burglary, resisting law enforcement using a vehicle, and to being

      an habitual offender due to having three prior, unrelated felony convictions in

      the state of Illinois, two for forgery and one for theft.


[6]   The presentence investigation report (PSI) revealed that Lowe had a total of five

      prior felony convictions—three for forgery, one for burglary, and one for theft.

      Lowe had violated his probation on three occasions, and he was on parole in

      Illinois for one of his forgery convictions when he committed the instant

      offenses. Lowe also had a felony theft case pending in Illinois. Lowe reported

      having been diagnosed with bipolar disorder in 1998. The presentence

      investigator recommended that the aggravating factors for sentencing were

      Lowe’s criminal history and that he had recently violated the conditions of his

      parole. The presentence investigator found no mitigating circumstances. The

      presentence investigator recommended that the trial court impose a five-year

      sentence on the attempted burglary conviction, enhanced by two years for being

      an habitual offender, and a two-year sentence on the resisting law enforcement



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019   Page 3 of 8
      conviction, all to be served consecutively, for an aggregate sentence of nine

      years.


[7]   On February 8, 2019, the trial court held Lowe’s sentencing hearing. The State

      argued that the mitigating circumstances were Lowe’s guilty plea and his

      expressions of remorse but that the significance of the guilty plea was lessened

      due to the benefit he gained in the dismissal of the other two burglary charges.

      The State argued that the aggravating circumstances were Lowe’s criminal

      history, his recent violation of the conditions of his parole, and the nature of the

      offense, in that Lowe planned to commit the burglary and came to Lafayette

      expressly to steal from businesses there. During his allocution Lowe told the

      trial court that the offenses were the result of a negative mental health episode

      and stated that “I’m just so embarrassed, I’ve never done anything like this

      before, I feel ridiculous that it happened . . . .” (Tr. Vol. II, p. 34).


[8]   In its oral sentencing statement, the trial court found that, due to Lowe’s

      criminal history, it was “struggling” with accepting his explanations for the

      offenses. (Tr. Vol. II, p. 42). The trial court also noted that Lowe had planned

      the burglary and that those who plan burglaries are aware that, if they are

      caught, they will go to prison. The trial court explained as follows:


               That’s kind of where I’m at and you got caught, and you tried to
               run and now is the date of sentencing and it’s hard to look at
               those cases and say well probation is appropriate or let’s suspend




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019   Page 4 of 8
               the sentence and because you knew exactly what you’re getting
               into unfortunately. When this all occurred. 2


      (Tr. Vol. II, p. 44).


[9]   The trial court found as aggravating circumstances Lowe’s criminal history and

      his recent violation of parole. The trial court found Lowe’s guilty plea to be

      “significant” as a mitigator. (Tr. Vol. II, p. 45). The trial court also found

      Lowe’s mental health to be a mitigating circumstance but that it “may have

      played some part of this, not all of it. You knew what you were doing.” (Tr.

      Vol. II, p. 45). The trial court stated, “I believe the aggravators outweigh the

      mitigating factors” and accepted the sentencing recommendations contained in

      the PSI. (Tr. Vol. II, p. 45). The trial court sentenced Lowe to five years for

      the attempted burglary and enhanced that sentence by two years for being an

      habitual offender. The trial court sentenced Lowe to two years for resisting law

      enforcement and ordered Lowe to serve all sentences consecutively, for an

      aggregate sentence of nine years. The trial court also suspended two years to

      probation. Prior to concluding the hearing, the trial court noted that the

      premeditated nature of the crime and Lowe’s apparent targeting of a

      “vulnerable” business community required serious repercussions and merited

      the sentence imposed. (Tr. Vol. II, p. 46). In its written sentencing statement,




      2
        These statements are attributed to Lowe in the transcript. However, it is evident from the context of the
      remarks that it is the trial court making them, not “the Defendant”. (Tr. Vol. II, p. 44).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019                     Page 5 of 8
       the trial court imposed the same sentence but found that the “mitigating factors

       outweigh the aggravating factors.” (Appellant’s App. Vol. II, p. 18).


[10]   Lowe now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   Lowe contends that the trial court erred when it imposed enhanced, consecutive

       sentences after finding in its written sentencing statement that the mitigating

       circumstances outweighed the aggravating circumstances. However, Lowe also

       acknowledges that the trial court found in its oral sentencing statement that the

       aggravators outweighed the mitigators. As a general rule, we review a trial

       court’s imposition of sentence only for an abuse of discretion. Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007). A trial court may abuse its discretion by entering a sentencing statement

       that explains the imposition of the sentence with reasons that are not supported

       by the record or by giving reasons that are improper as a matter of law. Id. at

       490-91. When a trial court issues conflicting sentencing statements, “[r]ather

       than presuming the superior accuracy of the oral statement, we examine it

       alongside the written sentencing statement to assess the conclusions of the trial

       court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). If the two statements

       truly conflict, the court may credit the statement that accurately pronounces the

       sentence, or it may remand for resentencing. Id.


[12]   Lowe urges us that remand is necessary because “if the trial court found that

       the mitigating factors outweighed the aggravating factors, then the imposition

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019   Page 6 of 8
       of enhanced sentences would be highly inappropriate.” (Appellant’s Br. p. 8).

       Lowe offers a similar argument regarding the trial court’s imposition of

       consecutive sentences. However, Lowe does not develop any argument that the

       mitigating circumstances actually outweighed the aggravating ones, and his

       argument ignores that we have the option of assessing the conflicting statements

       and crediting the one which we find accurately pronounces the sentence.

       McElroy, 865 N.E.2d at 589.


[13]   Here, the trial court imposed identical sentences in its oral and written

       sentencing statements. Our examination of both statements leads us to

       conclude that the trial court’s oral statement accurately pronounced the

       sentence. In its oral sentencing statement, the trial court found two aggravating

       circumstances, namely Lowe’s criminal history and his recent parole violation,

       and it stated that his premeditation and selection of a “vulnerable” victim

       merited the sentence imposed. (Tr. Vol. II, p. 46). While the trial court found

       Lowe’s guilty plea to be significant, it found his mental illness to be less so

       because, while it may have played a role, he was still aware of his conduct. In

       addition, the trial court adopted the sentencing recommendations of the

       probation department’s investigator, who found no mitigating circumstances,

       which also leads us to conclude that the trial court did not accord overriding

       weight to the mitigators it found. In short, we find that the trial court’s

       inconsistent statements regarding the mitigating and aggravating circumstances

       were merely an oversight or a clerical error and that its intent to impose

       enhanced, consecutive sentences is sufficiently clear in the record that remand is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019   Page 7 of 8
       not necessary. See Dowell v. State, 873 N.E.2d 59, 60-61 (Ind. 2007) (applying

       McElroy and resolving conflicting sentencing statements after a comparison

       rather than remanding for resentencing).


                                             CONCLUSION
[14]   Based on the foregoing, we conclude that the trial court intended to find that

       the aggravators outweighed the mitigators for sentencing and that remand is not

       necessary to clarify the trial court’s reasons for the imposition of its sentence.


[15]   Affirmed.


[16]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019   Page 8 of 8
