                                                                                    Oct 10 2013, 5:24 am

 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 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:

MEGAN B. QUIRK                                        GREGORY F. ZOELLER
Public Defender                                       Attorney General of Indiana
Muncie, Indiana
                                                      JUSTIN F. ROEBEL
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

FREDRICK D. MCCLURE,                                  )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )       No. 18A02-1302-CR-196
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE DELAWARE CIRCUIT COURT
                          The Honorable Thomas A. Cannon, Jr., Judge
                                 Cause No. 18C05-0901-FC-1


                                           October 10, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Fredrick D. McClure’s participation in a drug court forensic diversion program was

revoked after a number of violations. As a result, the trial court ordered McClure to serve his

previously stayed sentence. On appeal, McClure challenges the trial court’s determination

that the stayed sentence was eight rather than four years.

       We affirm.

       The State charged McClure with three counts of class C felony forgery. On August 3,

2009, the parties entered into a plea agreement in which McClure agreed to plead guilty to

two counts of forgery and the State agreed to dismiss the remaining count. With respect to

McClure’s sentence, the agreement provided in relevant part:

       7.     The parties agree that the defendant shall receive the following
              sentence:

              As to Count 1:

              a.    Four years to the Indiana Department of Corrections
                 executed, to be served consecutively to Count 2:
              b.    The Defendant agrees to cooperate and assist the Muncie
                 Police Department in the investigation of the murder of Jennifer
                 Strafford…. A violation of this provision of the plea agreement
                 may result in revocation of the previously stayed sentence;
                                         ****
              As to Count 2:

              f.      Four (4) years to the Indiana Department of Corrections,
                   executed, to be served consecutively to Count 1.

       8.     Execution of said sentence of four (4) years shall be stayed, on
              condition of the Defendant’s successful completion of the Delaware
              County Forensic Diversion Program.
                                          ****




                                              2
Appendix at 76 (emphasis in original).1 The trial court accepted the plea agreement and

entered convictions on Counts 1 and 2. The sentencing order set out McClure’s sentence

with a verbatim recitation of paragraph 7 of the plea agreement. Like paragraph 8 of the plea

agreement, the order also included the conflicting provision that “[e]xecution of said

sentence of four (4) years” shall be stayed on condition of McClure’s successful completion

of the diversion program. Id. at 83.

        McClure violated the terms of the diversion program and, following a hearing on

December 11, 2012, the trial court revoked McClure’s participation in the program and

scheduled a sentencing hearing. At the hearing on January 23, 2013, the parties and the court

discussed the apparent ambiguity in the original sentencing order regarding whether the

stayed sentence was four or eight years. The court acknowledged inconsistency within the

sentencing order and indicated: “I want to go back and listen to the record of the sentencing

hearing…or, of the change of plea hearing, ok.” Transcript at 91. Defense counsel did not

object, and the matter was continued.

        The hearing resumed on January 29, 2013, after the trial court and the parties had an

opportunity to review the record of the change of plea hearing from 2009. With respect to

the record, the court stated:

        So, well I mean listening to the record Mr. McClure, not once, not twice, not
        three times but four times I asked you if you understood that the plea
        agreement required the…that if you violated the terms of the plea agreement,
        you would be sentenced to eight years, four years on each count consecutive
        and your response on those occasions were that you understood.

1
   The agreement also provided that failure to complete the entire program “shall result in the immediate
execution of the defendant’s sentence”. Id. at 77.

                                                   3
Id. at 101. Accordingly, the trial court ordered that McClure serve his previously stayed,

eight-year sentence in the Indiana Department of Correction, with credit for time served.

        On appeal, McClure concedes that there is an “obvious ambiguity” regarding whether

the sentence imposed and stayed in 2009 was four or eight years. Appellant’s Brief at 12.

This ambiguity originated in the plea agreement with paragraphs 7 and 8 and was carried into

the 2009 sentencing order. Boiled down, McClure’s sole argument on appeal is that the trial

court could not look to the record of the change of plea hearing to determine the intended

length of the stayed sentence. McClure, however, did not make this argument below.

Rather, he acquiesced to the trial court’s stated decision to review the record from the

hearing. He cannot now be heard to complain.2

        The trial court’s review of the hearing record revealed that the clear intention of the

parties and the court at the time of sentencing was to impose an eight-year sentence (that is,

two consecutive four-year sentences), which would be stayed pending completion of the

diversion program. Thus, the inconsistent references to “said sentence of four (4) years” in

paragraph 8 of the plea agreement and in the corresponding portion of sentencing order were

clerical errors. Accordingly, the trial court did not err in ordering execution of McClure’s

eight-year sentence following his unsuccessful completion of the diversion program.

        Judgment affirmed.


2
   In arguing to the trial court for a four-year sentence, McClure made vague references to “some due process
concerns” and raised questions regarding the voluntariness of his plea “if we were to go beyond a four year
stayed sentence.” Transcript at 96. On appeal, McClure asserts a different argument that the court could not
look to extrinsic evidence when construing the plea agreement and sentencing order. This is an improper
attempt to raise an argument on appeal that is different from the argument raised below. See Buzzard v. State,
712 N.E.2d 547 (Ind. Ct. App. 1999), trans. denied.

                                                      4
BAKER, J., and VAIDIK, J., concur.




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