MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Aug 27 2019, 10:37 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
Bruce W. Graham                                          Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel Jude Clark,                                       August 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-172
        v.                                               Appeal from the
                                                         Tippecanoe Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Kristen E. McVey, Judge
                                                         Trial Court Cause No.
                                                         79D05-1706-F6-589



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019                  Page 1 of 17
                                             Case Summary
[1]   A jury found Samuel Jude Clark guilty of theft, conspiracy to commit

      obstruction of justice, and obstruction of justice, all Level 6 felonies. Clark

      admitted to being a habitual offender. He appeals and raises three issues that

      we restate as:


              I. Can Clark, who admitted to being a habitual offender,
              challenge the habitual offender adjudication on direct appeal by
              claiming that his trial counsel was ineffective?


              II. Do Clark’s convictions for conspiracy to commit obstruction
              of justice and obstruction of justice violate double jeopardy
              principles?


              III. In sentencing Clark, did the trial court fail to specify which
              felony was being enhanced for the habitual offender
              adjudication?


[2]   We affirm and remand for sentence clarification.


                                   Facts & Procedural History
[3]   On November 21, 2016, Tony Goin was the acting manager of CD Land, an

      electronics retail store in Lafayette that bought and sold CDs and DVDs. Perry

      Baldridge, who was Clark’s roommate, entered the store around 11:30 a.m.

      Also in the store at that time was a customer known to Goin as Jamal. Goin

      recognized both Baldridge and Jamal and considered them to be frequent

      customers. Clark entered the store a few minutes after Baldridge and stood

      near the front door. After Baldridge and Goin finished their business, Clark left

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 2 of 17
      the store and Baldridge walked out right behind him. Goin then heard the

      sound of breaking glass and a vehicle alarm. Jamal alerted Goin that the

      vehicle alarm was Goin’s black Jeep. Goin called 911 as he rushed outside, and

      as he reached the parking lot, Goin saw a black Chrysler sedan drive away.

      Jamal told Goin that he had seen Clark and Baldridge, who Jamal knew, get

      into the Chrysler. In Goin’s 911 call, he told police that the suspected

      perpetrators were Clark and Baldridge.


[4]   When Goin reached his Jeep, he saw that the front driver’s side window had

      been smashed and that his briefcase was missing from the front passenger seat.

      Inside the briefcase were the following: (1) $10,000 in cash and vehicle titles, as

      Goin planned to buy a vehicle that day, (2) Goin’s wallet containing another

      $1100, his credit cards, and his driver’s license, and (3) prescription medicines.

      Lafayette Police Department Officer Steven Prothero arrived about six or seven

      minutes after Goin made the 911 call and, based on Goin’s statements and

      “distinctive description” of the suspects, Officer Prothero was able to identify

      Baldridge “due to recent contact” with him. Id. at 95.


[5]   Meanwhile, Baldridge and Clark drove to their residence, and, once inside,

      Baldridge saw Goin’s briefcase and its contents including the cash, car titles,

      credit cards, and Goin’s identification. Clark gave some of the cash to

      Baldridge. As police cars began arriving, Clark grabbed “everything” and ran

      out the back door. Id. at 72. Baldridge hid under a floorboard in the attic

      before being discovered by police.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 3 of 17
[6]   On June 6, 2017, the State charged Clark with Level 6 felony theft and alleged

      he was a habitual offender. In March 2018, the State added Count II, Level 6

      felony conspiracy to commit obstruction of justice, Count III, Level 6 felony

      obstruction of justice, and Count IV, Level 6 felony conspiracy to commit

      intimidation. The State dismissed the conspiracy to commit intimidation

      charge on December 19, 2018.


[7]   At the December 2018 jury trial, Goin testified to the above circumstances

      surrounding the theft from his Jeep. Baldridge, who was under subpoena,

      appeared and testified pursuant to a term in his plea agreement for Level 6

      felony theft that required him to “testify truthfully in any hearing, trial, or court

      proceeding involving the events in this case.” State’s Exhibit 12. Baldridge

      testified that on November 21, 2016, he and Clark went to CD Land, with

      Baldridge driving his sister’s black Chrysler sedan. Baldridge said that after he

      was done with his transaction with Goin, he walked to his car. As he was

      plugging in his phone and putting on his seatbelt, he heard a window shatter.

      Clark then jumped into the back of the car and yelled, “go, go, go.” Transcript

      Vol. 2 at 70, 78. Baldridge said that when Clark got in the car, he was carrying

      a laptop-type of briefcase. Baldridge stated that, after they were back at their

      residence and he saw all of Goin’s credit cards and vehicle titles, he “put two

      and two together” and “figured [] out” that Clark had taken the briefcase from

      Goin’s Jeep. Id. at 71. Baldridge said that he did not know beforehand that

      Clark was going to break into Goin’s vehicle and steal from him, stating, “If I

      could have prevented it I would’ve.” Id. at 83.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 4 of 17
[8]   Baldridge testified that, while in jail in January 2018, he met fellow inmate

      Michael Tunis, who knew Clark. According to Baldridge, Tunis told him that,

      since he (Baldridge) had already pled guilty, he needed to sign a note saying

      that “Jude Clark was innocent” and “did not commit the crime” because “it

      would be stupid for two people to go down” and, instead, Baldridge needed to

      “take the fall for it.” Id. at 74. Baldridge said that Tunis wrote the note and

      handed it to Baldridge for his signature. It read:


                 Samual Jude Clark had nothing to do with the theft that occured
                 at CD Land on November of 2016. I am the one who committed
                 this crime on my own occord.


      State’s Exhibit 5 (spelling in original). Baldridge testified that the contents of the

      note were not accurate, but he signed it because he was scared. Tunis told

      Baldridge he had to contact the jail’s notary public and get it notarized and that,

      if he did not do so, Tunis and others “were going to jump” him. Transcript Vol.

      2 at 74. Baldridge got his signature notarized and gave the note back to Tunis. 1


[9]   Prior to trial and as part of discovery in Clark’s case, the false statement was

      submitted to the Tippecanoe County Prosecutor’s Office. After receiving

      information that the letter was not actually authored by Baldridge, Investigator

      Brad Hayworth began an investigation into the matter. Hayworth testified that

      he met with Baldridge and his attorney, and he listened to recorded jail phone




      1
          We note that Tunis also appeared at trial under subpoena but refused to testify and was held in contempt.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019                     Page 5 of 17
       calls that Tunis made to Clark in January and February 2018, in which the two

       discussed getting Baldridge to sign a statement saying that Clark did not

       commit the theft. After listening to the calls, Hayworth met with Tunis, who

       confirmed that it was him speaking to Clark in the calls, which related to a plan

       to have Baldridge sign a false statement. The phone calls were played for the

       jury.


[10]   The jury found Clark guilty of Counts I, theft, Count II, conspiracy to commit

       obstruction of justice, and Count III, obstruction of justice. Clark waived his

       right to a trial by jury on the habitual offender enhancement and admitted to

       being a habitual offender. Following a sentencing hearing, the trial court

       sentenced Clark to one and one-half years for each conviction, enhanced by

       four years on the habitual offender adjudication, ordering the sentences in

       Counts II and III to be served concurrently but consecutive to the sentence

       imposed in Count I, for a seven-year aggregate sentence. The trial court

       ordered six years executed and one year served at a level to be determined by

       community corrections. Clark now appeals.


                                        Discussion & Decision

                              I. Habitual Offender Adjudication
[11]   Clark asserts that we should reverse his habitual offender adjudication because

       he received ineffective assistance of trial counsel, arguing that his trial counsel

       was ineffective by allowing Clark to admit to the habitual offender status when

       the charging information allegedly did not list three prior unrelated felonies as


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 6 of 17
required by statute. Clark’s habitual offender charging information alleged the

following four prior convictions:


        On or about September 27, 2006, Samuel Jude Clark was
        convicted and sentenced of the crime of Resisting Law
        Enforcement (Class D felony) and Receiving Stolen Property
        (Class D felony), in Cause No. 4lD03-0410-FB-24 committed on
        or about October 19, 2004.


        On or about September 27, 2006, Samuel Jude Clark was
        convicted and sentenced of the crime of Auto Theft (Class D
        felony), in Cause No. 4lD03-0410-FD-272 committed on or
        about October 19, 2004.


        On or about February 27, 2007, Samuel Jude Clark was
        convicted and sentenced of the crime of Possession of Stolen
        Property (Class D felony), in Cause No. 79D06-0608-FD-l90
        committed on or about August 29, 2006.


        On or about February 29, 2012, Samuel Jude Clark was
        convicted and sentenced of the crime of Possession of
        Methamphetamine (Class C felony), Theft (Class D felony) and
        Theft (Class D felony), in Cause No. 79D02-1108-FB-35
        committed on or about August 26, 2011.


Appellant’s Appendix Vol. II at 14 (emphasis added). The crux of Clark’s

appellate claim is that the habitual offender information was “defective on its

face” because, due to overlapping dates of offenses, it did not demonstrate that

Clark had three prior unrelated felonies as required by Ind. Code § 30-50-2-8

and that, as a result, there was “insufficient evidence to demonstrate that he

was a habitual offender.” Appellant’s Brief at 12, 14.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 7 of 17
[12]   As Clark acknowledges, our Supreme Court in Tumulty v. State, 666 N.E.2d

       394, 395-96 (Ind. 1996), held that where a defendant admitted to being a

       habitual offender, he or she may not challenge a habitual offender enhancement

       on direct appeal and that, instead, the appropriate avenue to challenge a

       habitual offender adjudication after admitting to it was to petition for post-

       conviction relief. This court reaffirmed that principle in Robey v. State, 7 N.E.3d

       371 (Ind. Ct. App. 2014), trans. denied.


[13]   In Robey, a defendant appealed his habitual offender adjudication contending

       that it lacked a sufficient factual basis. Specifically, Robey asserted that one of

       the predicate felonies used to establish his habitual offender status, which he

       had admitted to, did not qualify under I.C. § 35-50-2-8. The State did not

       dispute Robey’s claim. Even so, the Robey court affirmed the trial court’s

       adjudication, explaining:


               In Indiana, [] it is well-settled that a person who pleads guilty
               cannot challenge his convictions by means of direct appeal, see
               Kling v. State, 837 N.E.2d 502, 504 (Ind. 2005), and the same is
               true of one who admits to habitual offender status. See Stanley v.
               State, 849 N.E.2d 626, 630 (Ind. Ct. App. 2006).


                                                      ****


               There is, quite simply, no room in Tumulty’s holding for any
               exceptions to the rule that you cannot challenge a habitual
               offender adjudication on direct appeal after pleading guilty. If
               Robey wishes to further challenge the factual basis underlying his
               admission to being a habitual offender, he will have to do so in a
               PCR petition.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 8 of 17
       7 N.E.3d at 383-84.


[14]   Clark presents his claim as one for ineffective assistance of counsel, asserting

       that his trial counsel was ineffective by both failing to object to a deficient

       habitual offender charging information and “having Clark admit he was a

       Habitual Offender,” when it was “evident on the face of the document” that

       Clark did not qualify as such. Reply Brief at 6. Clark’s ineffectiveness claim

       effectively asks us to decide whether the habitual offender charging information

       was deficient for failing to identify three unrelated prior convictions. However,

       Indiana courts have made clear that where a defendant admitted to being a

       habitual offender as charged, he may challenge the resulting adjudication,

       including the sufficiency of the charging information, only by filing a petition

       for post-conviction relief. See Robey, 7 N.E.3d at 383.


[15]   We thus decline Clark’s request to bootstrap his habitual offender challenge into

       a direct appeal by labeling it an ineffective assistance of counsel claim. See, e.g.,

       Stanley v. State, 849 N.E.2d 626, 629 (Ind. Ct. App. 2006) (although defendant

       framed issue on direct appeal as a sentencing error – arguing that his thirty-year

       sentence was erroneous because one of the predicate offenses supporting his

       habitual offender enhancement did not count as a prior unrelated felony

       conviction – appellate court found that the crux of defendant’s argument was

       that the factual basis supporting his admission as habitual offender was

       insufficient, and therefore defendant’s claim needed to be brought by a petition

       for post-conviction relief). Accordingly, we affirm the trial court’s habitual

       offender adjudication. Robey, 7 N.E.3d at 384 (affirming habitual offender

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 9 of 17
       adjudication, even though there was no dispute that one of the predicate

       felonies used to establish his habitual status did not qualify, because defendant

       needed to seek relief through post-conviction remedies).


                                         II. Double Jeopardy
[16]   Clark asserts that his convictions for Count II, conspiracy to commit

       obstruction of justice, and Count III, obstruction of justice, violate the Double

       Jeopardy Clause of the Indiana Constitution, which provides: “No person shall

       be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.

       “Indiana’s Double Jeopardy Clause ... prevent[s] the State from being able to

       proceed against a person twice for the same criminal transgression.” Lumbley v.

       State, 74 N.E.3d 234, 241 (Ind. Ct. App.), trans. denied. The Indiana Supreme

       Court has held that “two or more offenses are the ‘same offense’ in violation of

       Article 1, Section 14 of the Indiana Constitution, if, with respect to either the

       statutory elements of the challenged crimes or the actual evidence used to

       convict, the essential elements of one challenged offense also establish the

       essential elements of another challenged offense.” Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999).


[17]   Clark does not assert a violation under the statutory elements test. Instead, he

       claims that his convictions constitute double jeopardy under the actual evidence

       test. “The actual evidence test prohibits multiple convictions if there is ‘a

       reasonable possibility that the evidentiary facts used by the fact-finder to

       establish the essential elements of one offense may also have been used to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 10 of 17
       establish the essential elements of a second challenged offense.’” Gibson v. State,

       111 N.E.3d 247, 254-55 (Ind. Ct. App. 2018) (quoting Richardson, 717 N.E.2d at

       53), trans. denied. A “reasonable possibility” requires “substantially more than a

       logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008).

       “‘[R]easonable possibility’ turns on a practical assessment of whether the jury

       may have latched on to exactly the same facts for both convictions.” Id. Here,

       Clark contends that the evidence used to support the conspiracy charge “was

       the same evidence used to demonstrate the actual Obstruction of Justice”

       charge, more specifically, that the overt act in furtherance of their agreement

       was Clark’s submission of the letter to the prosecutor’s office, which was the

       same act that supported the obstruction charge. Appellant’s Brief at 18.


[18]   In determining the facts used by the jury to establish the elements of each

       offense, we consider the charging information, jury instructions, and arguments

       of counsel. Gibson, 111 N.E.3d at 255. In this case, the charging information

       for the conspiracy count alleged an agreement between Clark and Tunis and a

       number of overt acts in furtherance of their agreement:


               Clark and/or Tunis made phone calls to each other; while
               speaking on the phone, Clark and Tunis agreed to make Perry
               Baldridge sign a letter stating that Clark was innocent of the
               charges filed against him; Clark instructed Tunis to have said
               letter notarized to make it a legal document; Tunis made
               Baldridge sign said letter; Tunis made Baldridge order a notary to
               notarize said letter; Tunis and/or Baldridge mailed said letter to
               Clark’s mother’s house; Clark submitted said letter as discovery
               in a pending criminal proceeding filed against Clark.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 11 of 17
       Appellant’s Appendix Vol. II at 52. While we recognize that the charging

       information for conspiracy identifies submission of the false letter in the

       criminal proceeding as an overt act, it was one of several overt acts listed in the

       charging information. Our Supreme Court faced a similar situation in Redman

       v. State 743 N.E.2d 263, 267 (Ind. 2001). There, the defendant challenged his

       convictions for criminal confinement and conspiracy to commit murder on

       double jeopardy grounds, arguing that the jury used evidence of the victim’s

       abduction to establish both the overt act of the conspiracy as well as criminal

       confinement. In Redman, as in the present case, the charging information

       identified four alternative overt acts, one of which was abduction, and Redman

       argued that there was a reasonable possibility that the evidentiary facts used by

       the jury to establish abduction in the conspiracy charge may also have been

       used to establish the essential element of forceful removal in the criminal

       confinement charge.


[19]   Our Supreme Court rejected Redman’s claim, observing that the State, in

       closing argument, argued that Reman and his accomplices “performed one or

       more of the overt acts, either the abduction, the confinement, the rape or the

       disposal of the body” and, while the State urged that all of them occurred, the

       prosecutor reminded the jury “if you only believe one of them occur[red] and

       not the others that’s sufficient to convict.” Id. at 268. The Redman Court also

       reviewed the jury instructions, which instructed that to convict Redman of

       conspiracy as charged the State must have proven, among other things, that

       Redman and one or more others performed an overt act in furtherance “by


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 12 of 17
       either abducting, or confining, or raping, or disposing of the body.” Id. The

       Court concluded that “in view of the extensive evidence of the protracted

       criminal episode, the State’s closing argument, and the court’s instructions

       which clearly authorized any one of several bases for finding the overt act

       element,” there was no sufficiently substantial likelihood that the jury relied on

       the evidence of the abduction to establish the overt act element of the

       conspiracy charge. Id.


[20]   Similarly, in the present case, the State in closing argument addressed the

       evidence that supported the conspiracy charge, directing the jury to evidence

       that Tunis performed a number of overt acts in furtherance of the agreement

       with Clark:


               Clark or Tunis made phone calls to each other. You heard that
               when you listen to the four jail phone calls. Clark and Tunis
               agreed to make Perry Baldridge sign[] a letter stating that Clark
               was innocent of all charges filed against him. You heard
               [Baldridge] testified [sic] to that and you saw the letter. Tunis
               made Baldridge sign the letter. Tunis made Baldridge order a
               notary to notarize said letter. Tunis and or Baldrige mailed said
               letter to Clark’s mother’s house. Clark submitted [the] letter as . .
               . discovery in pending criminal matter against Clark. We allege
               all of those different overt acts. You only have to find that there was
               one overt act in this to find conspiracy to commit obstruction of justice.


       Transcript Vol. 2 at 121 (emphasis added).


[21]   In rebuttal argument, the State again addressed the conspiracy charge, and

       more specifically the overt acts performed in furtherance of the agreement. The


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 13 of 17
       prosecutor quoted from statements made by Clark and Tunis in their phone

       calls, including that Tunis told Clark, “I made [Baldridge] sign it when he was

       on his visit[.]” Transcript Vol. 2 at 124-25. Tunis bragged to Clark that, in

       getting Baldridge to sign the statement, Tunis had told him, “You sign it and

       I’m not going to do nothing to you but you don’t sign and this is your ass.” Id.

       at 125. Clark asked Tunis if Baldridge “wrote it up real good,” and Tunis

       replied, “oh bro, I wrote it” and “[Baldridge] just signed it[.]” Id. at 126. Clark

       instructed Tunis that, in order “to make it legal,” Baldridge “has to have it

       notarized[.]” Id. at 125. Tunis later assured Clark, “I got that done for you

       bro,” explaining that although, at first, Baldridge “acted like he wasn’t going to

       do it,” Tunis “took [Baldridge’s] head and slammed it into a . . . wall” at which

       time Baldridge agreed to get it notarized. Id. at 126. Clark instructed Tunis,

       “Send it to my mom . . . because I don’t want it going to my house.” Id. at 126.

       The State concluded by reminding the jury:


               Remember, conspiracy is just a plan between two or more people
               and they have to do at least one thing to put that plan in motion.
               Here we have evidence of many things to put the plan in motion.


       Id. at 127.


[22]   The State presented evidence of a variety of other overt acts in furtherance of

       the agreement, and the State reminded the jury in closing arguments that any

       one of these acts could support the conspiracy charge. The jury instruction

       regarding conspiracy likewise instructed the jury that the State must allege and

       prove that “that the defendant and or the other person performed at least one

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 14 of 17
       overt act in furtherance of the agreement” and it, like the charging information,

       listed the various acts performed by Clark and/or Tunis. Transcript at 129

       (emphasis added).


[23]   Considering the charging information, jury instructions, and arguments of

       counsel, we do not find a reasonable possibility that the jury relied on the

       submission of the false letter in the criminal proceeding to establish the overt act

       element of the conspiracy charge. See Redman, 743 N.E.2d at 268. We hold

       that Clark’s convictions on Counts II and III do not violate Indiana’s Double

       Jeopardy Clause.


                                              III. Sentencing
[24]   The trial court sentenced Clark to one and one-half years each on Count I,

       theft, Count II, conspiracy to commit obstruction of justice, and Count III,

       obstruction of justice, ordering Counts II and III served concurrently but

       consecutive to Count I. The trial court ordered that the habitual offender

       adjudication would enhance the sentence by four years, for an aggregate seven-

       year sentence. As Clark correctly observes, when defendants are convicted of

       multiple offenses and found to be habitual offenders, trial courts must impose

       the resulting penalty enhancement on only one of the convictions and must

       specify the conviction so enhanced. Davis v. State, 843 N.E.2d 65, 67 (Ind. Ct.

       App. 2006) (citing McIntire v. State, 717 N.E.2d 96, 102 (Ind. 1999)). Ind. Code

       § 35-50-2-8(j) provides that the trial court shall attach the habitual offender

       enhancement “to the felony conviction with the highest sentence imposed and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 15 of 17
       specify which felony count is being enhanced.” Here, all of the sentences at

       issue were one and one-half years in length. Clark argues on appeal that the

       trial court failed to specify which felony was enhanced, or “at best the wording

       is vague.” Appellant’s Brief at 20. After review of the record before us, we agree.


[25]   The trial court’s sentencing order provided in relevant part:


               The Court imposes the following sentence:


               1) Imposes a jail sentence of 1 1/2 years in Count I; 1 1/2 years
               in Count II, 1 1/2 years in Count III enhanced by fours [sic] (4)
               years on the Habitual count, all consecutive except Counts II and
               III are concurrent, all time executed in the Indiana Department
               of Corrections with credit for good time. Court recommends six
               (6) years executed in the Indiana Department of Corrections with
               the last year to be served at a level to be determined by the
               Tippecanoe County Community Corrections.


       Appellant’s Appendix Vol. II at 9. The State urges that the sentencing order

       reflects that the trial court enhanced the sentence on Count III. We, however,

       do not find that the trial court’s order clearly specified the conviction that was

       being enhanced.


[26]   The trial court’s remarks at the sentencing hearing did not clarify the matter.

       There, the court stated:


               Counts two and three, conspiracy to commit obstruction of
               justice and obstruction of justice will run concurrently. But the
               theft, count one, counts two and three and of course the
               enhancement will the [sic] necessarily consecutive. So, one
               count one and a half years, on count two, one and a half years,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 16 of 17
               count three, one and a half years but again those two counts, two
               and three are to be concurrent but consecutive to the others,
               enhanced by four years.


       Transcript Vol. 2 at 160.


[27]   Additionally, we observe that the CCS incorrectly reflects that, Clark was

       sentenced to one year and 180 days on the habitual adjudication and to four

       years for obstruction of justice, rather than the reverse. We further note that the

       Abstract of Judgment in the record states that the habitual offender count was

       dismissed and Clark was found guilty on Count IV (intimidation charge), when

       in fact the reverse is what occurred. Because we are remanding for clarification

       of sentencing with regard to the habitual enhancement, we direct the trial court

       to also correct the Abstract of Judgment to make it consistent with the trial

       court’s sentencing order.


[28]   We agree with Clark that the trial court did not adequately specify the

       conviction to which the habitual offender enhancement attached. Accordingly,

       we remand to the trial court with instructions to correct the sentence with

       regard to the habitual offender enhancement. See Davis, 843 N.E.2d at 67

       (failure to specify conviction being enhanced requires remand for trial court to

       correct sentence).


[29]   Judgment affirmed and remanded with instructions.


       Kirsch, J. and Vaidik, C.J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-172 | August 27, 2019   Page 17 of 17
