MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Sep 30 2019, 10:11 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court


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
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bobby Dee Allen,                                         September 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-139
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Elizabeth Christ,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G24-1804-F6-12338



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019              Page 1 of 6
                                       Statement of the Case

[1]   Following a bench trial, Bobby Allen (“Allen”) was convicted of Level 6 felony

      operating a vehicle while intoxicated1 and Level 6 felony operating a vehicle

      with an alcohol concentration equivalent (“ACE”) of .08 or more.2 On appeal,

      Allen raises one issue, which we restate as whether remand to correct the

      sentencing order, abstract of judgment, and chronological case summary

      (“CCS”) is necessary because the oral and written sentencing statements

      conflict. The State agrees that remand is necessary, as do we. Accordingly, we

      remand this cause to the trial court to vacate the operating while intoxicated

      conviction and to correct the sentencing order, abstract of judgment, and CCS

      to reflect only a conviction for operating with an ACE of .08 or more.


[2]   We remand.


                                                     Issue

                  Whether this case should be remanded to correct the sentencing
                  order and abstract of judgment.

                                                     Facts

[3]   On March 30, 2018, Indiana State Police Trooper Matthew Helmbrecht

      (“Trooper Helmbrecht”) responded to a report of a stalled vehicle on I-70.



      1
          IND. CODE § 9-30-5-2.
      2
          I.C. § 9-30-5-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019   Page 2 of 6
      When Trooper Helmbrecht arrived, he found a vehicle “stationary in the right

      lane. [I]t was blocking – completely blocking the right lane, which is the exit

      ramp to Rural Street.” (Tr. 8). Trooper Helmbrecht observed Allen standing

      on the right shoulder of the interstate and another individual sitting in the front

      passenger seat. As Trooper Helmbrecht spoke with Allen, he noticed the odor

      of alcohol emanating from him. Trooper Helmbrecht also observed that Allen’s

      speech was slurred and that his eyes were watery and bloodshot. Trooper

      Helmbrecht then administered the horizontal gaze nystagmus (“HGN”) field

      sobriety test to Allen, and he showed all six clues indicating possible

      intoxication. Trooper Helmbrecht did not administer any other field sobriety

      tests because Allen appeared to have unsteady balance and they were not in a

      safe location.


[4]   Based upon his observations and the results of the HGN test, Trooper

      Helmbrecht believed that Allen had operated a vehicle while intoxicated. Allen

      was handcuffed and then read Indiana’s Implied Consent law. Allen refused to

      take a chemical test. Trooper Helmbrecht then transported Allen to Eskenazi

      Hospital. After Trooper Helmbrecht obtained an electronic search warrant,

      Allen underwent a blood draw. Allen’s lab report indicated that his “plasma-

      serum ethyl alcohol concentration” was .183%, which corresponds “to a whole

      blood ethyl alcohol concentration” in the range of .144% to .172%. (State’s

      Exhibit 2).


[5]   The State charged Allen with Count 1, Class C misdemeanor operating a

      vehicle while intoxicated; Count 2, Class C misdemeanor operating a vehicle

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019   Page 3 of 6
      with an ACE of .08 or more; and Count 3, Class A misdemeanor driving while

      suspended. The two operating counts were enhanced to Level 6 felonies due to

      a prior conviction.


[6]   A bench trial occurred in September 2018. Following the presentation of

      evidence, the trial court found Allen guilty of Counts 1 and 2 and not guilty of

      Count 3. In pronouncing its decision, the trial court stated the following:


              The Court is satisfied with the evidence put forth by the State of
              Indiana and I’m finding the defendant guilty. Um, the elements
              for operating, uh, while intoxicated and operating a vehicle with
              an alcohol content of .08 or greater. There is overlapping, so the
              Court would enter judgment of conviction as to operating only one
              of the two counts. The operating a vehicle with an alcohol content
              of at least .08 or, uh, but less than .15. And entering, um, a not
              guilty verdict on the driving while suspended Count III.

      (Tr. 57).


[7]   The trial court held a sentencing hearing in December 2018. During the

      hearing, the trial court stated the following:


              The Court having reviewed the pre-sentence report; having
              presided over the trial and having found you guilty of operating a
              vehicle while intoxicated having prior conviction, found you
              guilty, uh, I found the State presented, um, evidence, uh, that
              satisfied me that there was operating of the vehicle and that, um,
              you had an alcohol content of .08 or greater with a prior
              conviction.

      (Tr. 81).


[8]   Following the sentencing hearing, the trial court issued its written sentencing

      order. In the order, the court stated that Allen was guilty of Counts 1 and 2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019   Page 4 of 6
       The sentencing order also stated that Allen was sentenced to 365 days for

       Count 1, a concurrent 365 days for Count 2, and 347 days suspended to

       probation. The abstract of judgment and CCS reflect the same sentence

       pronounced in the sentencing order. Allen now appeals.


                                                   Decision

[9]    Allen contends, and the State agrees, that remand is necessary to correct the

       written sentencing order and the abstract of judgment. Specifically, Allen

       argues that the trial court intended to enter a judgment of conviction for only

       Count 2, Level 6 felony operating a vehicle with an alcohol concentration

       equivalent of .08 or higher. When oral and written sentencing statements

       conflict, we examine them together to discern the intent of the sentencing court.

       Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010), reh’g denied. We may

       remand the case for correction of clerical errors if the trial court’s intent is

       unambiguous. See Willey v. State, 712 N.E.2d 434, 445 n.8 (Ind. 1999) (“Based

       on the unambiguous nature of the trial court’s oral sentencing pronouncement,

       we conclude that the Abstract of Judgment and Sentencing Order contain

       clerical errors and remand this case for correction of those errors.”).


[10]   Here, the oral sentencing statement is clear that the trial court intended to enter

       a conviction for Count 2 only. Despite this statement, the trial count entered a

       judgment of conviction for both operating counts, as reflected in the sentencing

       order, abstract of judgment, and CCS. Accordingly, we remand to the trial



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019   Page 5 of 6
       court with instructions to vacate Count 1 and enter a new sentencing order,

       abstract of judgment, and CCS to reflect a conviction for Count 2.


[11]   Remanded with instructions.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-139 | September 30, 2019   Page 6 of 6
