MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any                                          Oct 11 2018, 9:22 am

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
Sean C. Mullins                                          Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General
Crown Point, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jarvis Latwon McNeal,                                    October 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1298
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff                                       Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1703-F5-23



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018                    Page 1 of 6
                                             Case Summary
[1]   Jarvis Latwon McNeal appeals the three-year sentence imposed by the trial

      court following his guilty plea to level 5 felony carrying a handgun without a

      license. He asserts that the trial court abused its discretion because its

      sentencing statement is ambiguous and inadequate, and he urges us to remand

      for clarification of the court’s sentencing order. He further asserts that his

      sentence is inappropriate in light of the nature of the offense and his character.

      Finding no abuse of discretion and that remand for clarification is unnecessary,

      and further concluding that McNeal cannot meet his burden to demonstrate

      that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On March 2, 2017, McNeal was driving a vehicle without a license plate. As

      an officer attempted to make a traffic stop, McNeal threw an object out the

      window, which was later determined to be a 9mm handgun. McNeal did not

      have a license to carry the handgun, and he had prior felony convictions within

      the last fifteen years.


[3]   The State charged McNeal with level 5 felony carrying a handgun without a

      license and class A misdemeanor carrying a handgun without a license.

      Pursuant to a written plea agreement, McNeal pled guilty to the level 5 felony.

      The parties agreed that, although sentencing was left to the trial court’s

      discretion, his sentence would be capped at a maximum of three years, the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018   Page 2 of 6
      advisory sentence for a level 5 felony. Following a hearing, the trial court

      imposed a three-year sentence. This appeal ensued.


                                     Discussion and Decision

         Section 1 – The trial court did not abuse its discretion. Its
         sentencing statement is neither ambiguous nor inadequate,
                and remand for clarification is unnecessary.
[4]   McNeal contends that the trial court abused its discretion in issuing an

      ambiguous and inadequate sentencing statement, and he invites us to remand to

      the trial court for clarification. Specifically, he complains that the court’s oral

      sentencing statement is inconsistent with the court’s written sentencing

      statement because, in the oral statement, the court found two aggravating

      circumstances and one mitigating circumstance, but the court’s written

      statement includes a finding that “the mitigating circumstances outweighed the

      aggravating circumstances.” Appellant’s App. Vol. 2 at 55.


[5]   We begin by noting that “sentencing decisions rest within the sound discretion

      of the trial court and are reviewed on appeal only for an abuse of discretion.”

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g 875 N.E.2d

      218. “An abuse of discretion occurs if the decision is clearly against the logic

      and effect of the facts and circumstances before the court.” Webb v. State, 941

      N.E.2d 1082, 1088 (Ind. Ct. App. 2011), trans. denied. Trial courts “may abuse

      [their] discretion by issuing an inadequate sentencing statement, finding

      aggravating or mitigating factors that are not supported by the record, omitting



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018   Page 3 of 6
      factors that are clearly supported by the record and advanced for consideration,

      or by finding factors that are improper as a matter of law.” Id.


[6]   “When oral and written sentencing statements conflict, we should examine

      them together to discern the intent of the sentencing court.” Walker v. State, 932

      N.E.2d 733, 738 (Ind. Ct. App. 2010). “Rather than presuming the superior

      accuracy of the oral statement, we examine it alongside the written sentencing

      statement to assess the conclusions of the trial court.” Dowell v. State, 873

      N.E.2d 59, 60 (Ind. 2007) (quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind.

      2007)). Where the two statements conflict, this Court has the option of

      crediting the statement that accurately pronounces the sentence or remanding

      for resentencing. McElroy, 865 N.E.2d at 589.


[7]   Here, both the oral and written sentencing statements (as well as the abstract of

      judgment) impose precisely the same three-year sentence. McNeal complains

      that the trial court’s reasons for imposing that sentence are ambiguous and

      inadequate due to the inconsistency between the two statements. However,

      having examined both statements, we believe that the trial court’s oral

      statement accurately and adequately pronounces its reasons for the sentence

      imposed, and therefore remand is unnecessary. It is apparent from its oral

      statement that, in imposing sentence, the trial court relied on two aggravating

      circumstances—McNeal’s criminal history and his numerous failed attempts at

      probation—and one mitigating circumstance—recent positive changes he has

      made in his life. The trial court went further to explain on the record that a

      three-year sentence was more than justified based on its consideration of those

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018   Page 4 of 6
      circumstances, specifically noting disagreement with the plea agreement’s

      sentencing cap in stating, “on the face of it you really deserve more time than

      this.” Tr. Vol. 2 at 31. Therefore, we conclude that the trial court’s finding that

      “the mitigators outweighed the aggravators” in its written statement was simply

      a clerical error. Because the trial court’s intent is clear, and the oral statement

      includes a reasonably detailed recitation of the court’s reasons for imposing the

      three-year sentence, we find no abuse of discretion and no need to remand for

      clarification.


         Section 2 – McNeal cannot meet his burden to demonstrate
                     that his sentence is inappropriate.
[8]   McNeal next claims that his sentence is inappropriate and invites this Court to

      reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may

      revise a sentence authorized by statute if, after due consideration of the trial

      court’s decision, we find that the sentence “is inappropriate in light of the

      nature of the offense and the character of the offender.” The defendant bears

      the burden to persuade this Court that his or her sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

      sentencing scheme allows trial courts to tailor an appropriate sentence to the

      circumstances presented, and the trial court’s judgment “should receive

      considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

      The principal role of appellate review is to attempt to “leaven the outliers.” Id.

      at 1225. Whether we regard a sentence as inappropriate at the end of the day

      turns on “our sense of the culpability of the defendant, the severity of the crime,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1298 | October 11, 2018   Page 5 of 6
       the damage done to others, and myriad other facts that come to light in a given

       case.” Id. at 1224. In conducting our review, the question “is not whether

       another sentence is more appropriate; rather, the question is whether the

       sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.

       Ct. App. 2007). Our Supreme Court has cautioned that “[a] defendant’s

       conscious choice to enter a plea agreement that limits the trial court’s discretion

       to a sentence less than the statutory maximum should usually be understood as

       strong and persuasive evidence of sentence reasonableness and

       appropriateness,” and that following such an agreement, we should grant relief

       “only in the most rare, exceptional cases.” Childress, 848 N.E.2d at 1081

       (Dickson, J., concurring).


[9]    This is not one of those exceptional cases. McNeal pled guilty to a level 5

       felony that generally carries a sentencing range between one and six years, with

       an advisory sentence of three years. Ind. Code § 35-50-2-6. The plea agreement

       capped McNeal’s sentence at the advisory term of three years. Clearly, at the

       time he entered into the plea agreement, McNeal believed that a sentence of

       three years for his crime was reasonable and appropriate. Therefore, he cannot

       now complain that the same sentence is inappropriate. Accordingly, we affirm.


[10]   Affirmed.


       Najam, J., and Pyle, J., concur.




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