MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                      Dec 26 2018, 6:27 am

regarded as precedent or cited before any                                      CLERK
                                                                           Indiana Supreme Court
court except for the purpose of establishing                                  Court of Appeals
                                                                                and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew M. Kubacki                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Kelly A. Loy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gabriel Morales,                                        December 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1083
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G19-1704-CM-12045



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1083 | December 26, 2018                  Page 1 of 4
                                             Case Summary
[1]   Gabriel Morales appeals his vacated conviction for operating a vehicle with an

      alcohol concentration equivalent of .15 or greater, a Class A misdemeanor. We

      dismiss.


                                                     Issue
[2]   Morales raises one issue, which we restate as whether the evidence is sufficient

      to sustain his vacated conviction for operating a vehicle with an alcohol

      concentration equivalent of .15 or greater, a Class A misdemeanor.


                                                     Facts
[3]   On March 28, 2017, Tylene Hampton was driving home from work at

      approximately 9:05 p.m. when her vehicle was struck by a vehicle driven by

      Morales. Morales also struck a vehicle driven by Lakshami Mitchell. When

      Morales got out of his car, Hampton saw that Morales appeared to be

      intoxicated. Officer Bryan Rigby of the Indianapolis Metropolitan Police

      Department arrived on the scene and also observed that Morales appeared to be

      intoxicated. Morales’ blood alcohol concentration was .261.


[4]   The State charged Morales with: (1) Count I, operating a vehicle while

      intoxicated endangering a person, a Class A misdemeanor; (2) Count II,

      operating a vehicle with an alcohol concentration equivalent of .15 or greater, a

      Class A misdemeanor; and (3) Count III, operating a motor vehicle without

      ever receiving a license, a Class C misdemeanor. After a bench trial, the trial

      court found Morales guilty of Count I and Count II and not guilty of Count III.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1083 | December 26, 2018   Page 2 of 4
      The trial court, however, “vacated” Count II. Appellant’s App. Vol. II p. 11.

      On Count I, the trial court sentenced Morales to 365 days with 355 days

      suspended to probation.


                                                    Analysis
[5]   Morales appeals his vacated conviction for Count II, operating a vehicle with

      an alcohol concentration equivalent of .15 or greater, a Class A misdemeanor. 1


[6]   Morales is challenging a conviction that was vacated. We held in Bass v. State,

      75 N.E.3d 1100, 1103 (Ind. Ct. App. 2017), that a challenge to the sufficiency

      of the evidence underlying a guilty finding “on which there has been no proper

      judgment of conviction is, at best, not yet ripe for review.” Similarly, here,

      Morales’ challenge to the sufficiency of the evidence regarding his vacated

      conviction is not yet ripe for review. See, e.g., Bass, 75 N.E.3d at 1103 (holding

      that the defendant’s challenge to the sufficiency of the evidence underlying his

      vacated Class C misdemeanor was not yet ripe for review). Consequently, we

      dismiss Morales’ appeal.


                                                 Conclusion
[7]   Morales’ appeal of his vacated conviction is not ripe. We dismiss.


[8]   Dismissed.




      1
       Morales makes no argument regarding his conviction for Count I, operating a vehicle while intoxicated
      endangering a person, a Class A misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1083 | December 26, 2018              Page 3 of 4
Brown, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1083 | December 26, 2018   Page 4 of 4
