MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this                            Feb 15 2018, 9:39 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                          CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
purpose of establishing the defense of res judicata,                         and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kurt A. Young                                             Curtis T. Hill, Jr.
Nashville, Indiana                                        Attorney General of Indiana
                                                          Kelly A. Loy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Malik Lewis,                                             February 15, 2018

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1706-CR-1291
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen Marchal,
                                                         Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No. 49G15-1609-
                                                         F6-36817




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018        Page 1 of 12
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Malik Lewis (Lewis), appeals his conviction and

      sentence for escape, a Level 6 felony, Ind. Code § 35-44.1-3-4(b); and theft, a

      Class A misdemeanor, I.C. § 35-43-4-2(a).


[2]   We affirm, but remand with instructions to correct a sentencing error.


                                                   ISSUES
[3]   Lewis presents three issues on appeal, which we restate as:

      (1) Whether the trial court erred in denying Lewis’ motion to dismiss;

      (2) Whether there was sufficient evidence to sustain his conviction for theft; and

      (3) Whether we should remand this case for correction of a sentencing error.


                      FACTS AND PROCEDURAL HISTORY
[4]   On New Year’s Eve of 2015, Julian Scott (Scott) went to work around 6:30

      a.m. and returned home by 7:00 p.m. Scott noticed that a bedroom window

      was wide open and the screen had been removed. That window had been

      closed when he left for work that morning. Scott also noticed his son’s Sony

      PlayStation 4 and its controllers, as well as a video game, were missing. Scott

      called the police. Indianapolis Metropolitan Police Department Officer

      Michael Sojka (Officer Sojka) was dispatched to Scott’s home on Orchard

      Bloom Drive in Marion County, Indianapolis, Indiana. Because Scott still had

      the box for the Sony PlayStation 4, Officer Sojka documented the device’s serial

      number and took note of the other missing items. Officer Sojka subsequently


      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 2 of 12
      filed an incident report and he recorded the serial number for Scott’s stolen

      Sony PlayStation 4 as MB872526462.


[5]   In December of 2015, Lewis was on home detention following his conviction

      for robbery, and was being monitored by a GPS device maintained by Marion

      County Community Correction. The conditions of his home detention

      confined Lewis to his house, unless he was pre-approved by his probation

      officer to go to work, church, school, or other discretionary places. On January

      1, 2016, Lewis had been approved to go to work at Hardee’s. Without the

      permission of his probation officer, Lewis went to Disc Replay at the

      Greenwood Park Mall in Indianapolis. Disc Replay is a pawn shop that buys

      and sells used video game systems and video game accessories. There, Lewis

      sold a Sony PlayStation 4 with serial number MB872526462 and accompanying

      gaming accessories for $200 in cash.


[6]   Following a subsequent police investigation, Detective Cindy Jenkins

      (Detective Jenkins) of the Indianapolis Metropolitan Police Department’s Pawn

      Unit learned that Lewis had sold a Sony PlayStation 4 with serial number

      MB872526462 and accompanying gaming accessories to Disc Replay on

      January 1, 2016. The Sony PlayStation 4 matched the serial number for the

      Sony PlayStation 4 that had gone missing at Scott’s residence on December 31,

      2015.


[7]   On March 23, 2016, the State filed an Information, charging Lewis with theft, a

      Class A misdemeanor, with assigned Cause Number 49G24-1603-CM-011184


      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 3 of 12
      (CM-11184). The record shows that during the filing process, an error

      occurred, and CM-11184 was designated as a felony case instead of a

      misdemeanor case. Based on the error, the State filed a motion to dismiss CM-

      11184 and refiled the same case as a misdemeanor case under Cause Number

      49G19-1603-CM-011187 (CM-11187). On March 30, 2016, under CM-11187,

      a warrant was issued for Lewis’s arrest.


[8]   The record shows that Lewis and the State thereafter engaged in plea

      negotiations for the theft charge, but no agreement was reached. Lewis decided

      to exercise his right to a jury trial. On September 20, 2016, six days before his

      trial, the State dismissed the charging Information for the theft charge under

      CM-11187, and it refiled charges against Lewis, maintaining the Class A

      misdemeanor theft charge and adding a Level 6 felony escape charge. That

      case was assigned a new Cause Number, 49G15-1609-F6-036817 (F6-36817).

      For the additional charge of escape, the State alleged that “[o]n or about

      January 1, 2016, . . . Lewis did knowingly or intentionally violate a home

      detention order, to-wit: went to a location(s) without permission of

      Community Corrections.” (Appellant’s App. Vol. II, p.22).


[9]   On March 14, 2017, Lewis filed a motion to dismiss. Lewis argued that he was

      prejudiced by the State’s dismissal of CM-11187 and the refiling of a new case,

      i.e., F6-36817, which added the Level 6 felony escape charge. On March 21,

      2017, the State filed its response, and it explained the numerous filings under

      the instant case:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 4 of 12
        On 3/23/16, Deputy Prosecuting Attorney (DPA) Amy Blackett
        filed a case against . . . Lewis. [Lewis] was charged with [Class
        A misdemeanor theft] relating to events that occurred on or
        about 12/31/15 and 1/1/16. DPA Blackett made an inadvertent
        error during the computerized filing process and selected “Minor
        Felony: Other” as the designated Court Division instead of
        “Misdemeanor” for this new case. Consequently, the computer
        program randomly assigned [Lewis’s] case to a Level 6 Court,
        specifically, Court G24. Immediately upon realizing her
        mistake, DPA Blackett set out to correct it. Rather than leave the
        misdemeanor case in G24, requiring that Court to process the
        paperwork, conduct the initial hearing, and ultimately transfer
        the case to a randomly assigned Misdemeanor Court (a process
        which can take days), DPA Blackett walked a Motion to Dismiss
        over to G24 on the same date of the filing. The Motion to
        Dismiss stated “Prosecutor Error” as the reason for dismissal.


        DPA Blackett then filed the [Class A misdemeanor theft] case
        correctly against [Lewis] by selecting the appropriate Court
        Division of “Misdemeanor” in the new filing, also on 3/23/16.
        As such, State of Indiana v. Malik Lewis, cause number 49G19-
        1603-CM-011187 came to be in [Courtroom] G19. A warrant
        was issued for [Lewis’s] arrest upon filing, and on 3/30/16 that
        warrant was served.


        ****


        On 9/20/16, the State dismissed cause number 49G19-1603-CM-
        011187. Also on 9/20/16, the State refiled a case against . . .
        Lewis under cause number 49G15-1609-F6-036817. The charges
        filed were [escape, a Level 6 felony] and [theft, a Class A
        misdemeanor]. Both charges stem from events that occurred on
        or about 12/31/15 and 1/1/16. As there was a Level 6 Felony
        charge attached to this case, it was . . . randomly assigned Level
        6 court.


Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 5 of 12
       (Appellant’s App. Vol. II, pp. 57-58). On March 24, 2017, the trial court held a

       hearing on the motion to dismiss, but it was denied. On May 10, 2017, a jury

       trial was conducted, and at the close of the evidence, the jury returned guilty

       verdicts for the Class A misdemeanor theft and Level 6 felony escape. On May

       25, 2017, the trial court sentenced Lewis to concurrent sentences of 496 days for

       escape and 365 days for theft, to be served in the Marion County Jail.


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


                               DISCUSSION AND DECISION
                                              I. Motion to Dismiss


[11]   Lewis contends that the trial court erred in denying his motion to dismiss the

       refiling of the Class A misdemeanor theft offense and the addition of Level 6

       felony escape charge in cause number F6-36817. It is well-settled that a

       defendant has the burden of proving, by a preponderance of the evidence, all

       facts necessary to support a motion to dismiss. Griffin v. State, 756 N.E.2d 572,

       574 (Ind. Ct. App. 2001), trans. denied. Because Lewis now appeals from a

       negative judgment, we will reverse only if the evidence is without conflict and

       leads inescapably to the conclusion that he is entitled to a dismissal. Barnett v.

       State, 867 N.E.2d 184, 186 (Ind. Ct. App. 2007), trans. denied.


[12]   As noted, in the original filing, CM-11184, the State only charged Lewis with

       Class A misdemeanor theft; however, the prosecutor in charge of that filing

       made a filing error which resulted in the dismissal of CM-11184, and refiling of

       that same theft charge under CM-11187. Six days before trial under CM-11187,
       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 6 of 12
       the State sought to dismiss the theft charging information, and refiled it under

       F6-36817, again charging Lewis with the same theft charge and also added a

       charge of Level 6 felony escape. Lewis contends that the State’s move to add

       the escape charge upon refiling amounted to prosecutorial vindictiveness.


[13]   The Due Process clauses of Article I, section 12, of the Indiana Constitution

       and the Fourteenth Amendment to the United States Constitution prohibit

       prosecutorial vindictiveness. Owens v. State, 822 N.E.2d 1075, 1077 (Ind. Ct.

       App. 2005). Prosecutorial vindictiveness is a due process concept, allowing a

       defendant to attempt to establish that the State’s charging decision was

       motivated by a desire to punish a defendant after the defendant did what the

       law allowed him to do. United States v. Goodwin, 457 U.S. 368, 384 (1982).


[14]   Under Indiana Code section 35-34-1-13, the prosecutor may move for the

       dismissal of the information at any time prior to sentencing. So long as the

       motion states a reason for the dismissal, the trial court must grant the motion.

       Davenport v. State, 689 N.E.2d 1226, 1229 (Ind. 1997). Once an information has

       been dismissed by the State under Indiana Code section 35-34-1-13, the State

       may refile an information against the defendant, subject to certain restrictions.

       Id. Indiana courts have long held that the State may refile for the same offense

       so long as jeopardy has not already attached. Id. Indiana courts have also long

       held that the State’s power to dismiss and refile may not be used to evade the

       defendant’s speedy trial rights. Id. The State may not use its authority to

       dismiss and refile charges if doing so will prejudice a defendant’s substantial

       rights. Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 7 of 12
[15]   In his brief, Lewis asserts that “[a]t all times in this case, the State was certainly

       aware that [he] was on home detention when he went to Disc Replay store, but

       it was only when it became apparent that [he] was not going to plead guilty to

       the theft” charge, and “a jury trial was . . . six days away,” that the State added

       the escape charge as a punitive measure. (Appellant’s Br. p. 15). This portion

       of Lewis’ brief contains no citations to any authority indicating that filing

       charges for such purposes is improper; in fact, the United States Supreme Court

       has indicated otherwise.


[16]   In Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978), the Supreme Court held

       that the government was not precluded from amending an indictment to add

       more serious charges after the defendant had refused to plead guilty, despite the

       fact that the prosecutor had not received any new evidence after the original

       indictment was filed. See also Johnson v. State, 959 N.E.2d 334, 342 (Ind. Ct.

       App. 2011) (holding that pre-trial action by the State, including amendment of a

       charge is presumptively valid).


[17]   Similarly, in U.S. v. Goodwin, 457 U.S. 368, 383 (1982), the Court held that

       there is no presumption of vindictiveness when a prosecutor adds more serious

       charges to an indictment after the defendant demands a jury trial. The court

       observed:


               A prosecutor should remain free before trial to exercise the broad
               discretion entrusted to him to determine the extent of the societal
               interest in the prosecution. An initial decision should not freeze
               future conduct. As we made clear in Bordenkircher, the initial


       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 8 of 12
               charges filed by a prosecutor may not reflect the extent to which
               an individual is legitimately subject to prosecution.


       Goodwin, 457 U.S. at 382. Additionally, “[t]o presume that every case is

       complete at the time an initial charge is filed, however, is to presume that every

       prosecutor is infallible—an assumption that would ignore the practical

       restraints imposed by often limited prosecutorial resources.” Id. at 382 n.14.


[18]   Applying the Bordenkircher and Goodwin holdings, it is clear that the State’s

       filing of charges subsequent to a breakdown in plea negations does not

       constitute retaliation for a defendant’s exercise of his right to trial. Turning to

       the record, we note that Lewis and the State engaged in plea negotiations for

       the Class A misdemeanor theft charge under CM-11187. No plea agreement

       was reached, and Lewis ultimately decided to exercise his right to a jury trial.

       Six days before his trial, the State dismissed the single Count of theft and refiled

       charges against Lewis, maintaining the Class A misdemeanor theft charge and

       adding the Level 6 felony escape charge. During the hearing on the motion to

       dismiss, the State responded to the allegations of vindictiveness by offering

       evidence that the State and Lewis had engaged in futile plea negotiations. The

       State also testified that Lewis was aware during the plea-bargaining process that

       his rejection of the State’s offer to plead guilty to the theft charge might result in

       an amended information adding the escape charge. Lewis rejected the State’s

       offer with full awareness of its terms and possible consequences, and he elected

       to proceed to trial.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 9 of 12
[19]   Lewis has not shown that the State’s decision to add the escape charge upon

       refiling was the result of prosecutorial vindictiveness. Thus, the trial court did

       not err in denying his motion to dismiss.


                                         II. Sufficiency of the Evidence


[20]   Lewis argues that the State failed to present sufficient evidence beyond a

       reasonable doubt to sustain his Class A misdemeanor theft conviction. When

       reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence.” Id. We will affirm if there is substantial evidence of probative

       value such that a reasonable trier of fact could have concluded the defendant

       was guilty beyond a reasonable doubt. Id.


[21]   Indiana Code section 35-73-4-2(a) provides, in part, that “[a] person who

       knowingly or intentionally exerts unauthorized control over property of another

       person, with intent to deprive the other person of any part of its value or use,

       commits theft, a Class A misdemeanor.


[22]   At Lewis’ trial, a Disc Replay employee was asked to read the serial number

       displayed on State’s Exhibit 4. The Disc Replay’s employee then incorrectly

       read the serial number for the Sony PlayStation 4 as “MB872526416.” (Tr.

       Vol. II, p. 197). Lewis, now contends that serial number MB872526416 as read



       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 10 of 12
       by Disc Replay’s employee, did not match serial number MB872526462, which

       was the serial for Scott’s stolen PlayStation 4. He argues that

               the records at the Disc Replay store showed that the PS4 sold to them
               by Lewis bore the serial number MB872526462 . . . .The PS4
               recovered by the police bore the serial number MB872526462 . . . And
               the photograph of the serial number of the PS4 introduced [as State’s
               Exhibit 4] bore the serial number MB872526462.


       (Appellant’s Br. p. 18). Based on the discrepancy of the serial numbers, he

       posits that the State failed prove the Sony PlayStation 4 that he sold to Disc

       Replay was identical to one stolen from Scott’s residence.


[23]   The evidence demonstrates that on December 31, 2015, Officer Sojka was

       dispatched to Scott’s residence to investigate a possible burglary. Officer Sojka

       noted the serial number for the missing for Sony PlayStation 4 as

       MB872526462. Following a police investigation, Detective Jenkins of the

       Pawn Unit, learned that Lewis had pawned a Sony PlayStation 4 with the same

       serial number, i.e., MB872526462, and accompanying gaming accessories at

       Disc Replay on January 1, 2016. Lewis had received $200 in return. Based on

       the foregoing, we conclude that the State provided sufficient evidence beyond a

       reasonable doubt to convict Lewis of Class A misdemeanor theft.


                                              III. Sentencing Error


[24]   Lastly, Lewis contends that it is necessary to remand this case for correction of

       the sentencing order. With respect to a sentencing error, “it is in the best

       interests of all parties that sentencing errors be immediately discovered and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 11 of 12
       corrected.” Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004). In general, such

       errors are most appropriately presented in a motion to correct error or in a

       direct appeal from the sentencing judgment. Id.


[25]   The trial court in this case sentenced Lewis to 365 days for his Class A

       misdemeanor theft conviction. See I.C. §35-50-3-2 (setting the sentence for a

       Class A misdemeanor up to one year.) However, in the sentencing order, the

       trial court entered Lewis’s sentence for his theft conviction as 496 days instead

       of 365 days. Based on the clerical error, we remand to the trial court for an

       amendment of the sentencing order so as to reflect Lewis’s correct sentence for

       his Class A misdemeanor theft as 365 days.


                                             CONCLUSION
[26]   In sum, we conclude that the trial court did not err in denying Lewis’s motion

       to dismiss; there was sufficient evidence to sustain Lewis’ theft conviction;

       however, based on the clerical error espoused in the sentencing order, we

       remand to the trial court for correction.


[27]   Affirmed.


[28]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1291 | February 15, 2018   Page 12 of 12
