MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Apr 30 2018, 7:54 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Agency, Appellate Division
                                                         Jesse R. Drum
Indianapolis, Indiana                                    Deputy Attorney General
Timothy J. O’Connor                                      Indianapolis, Indiana
O’Connor & Auersch
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jasper E. Williams, Jr.,                                 April 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1710-CR-2275
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Virginia A.
Appellee-Plaintiff.                                      Caudill, Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G09-1704-F6-12417



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2275 | April 30, 2018       Page 1 of 5
[1]   Jasper E. Williams, Jr. (“Williams”) appeals his sentence for Level 6 felony

      harmful performance before a minor and Level 6 felony public indecency.

      Specifically, Williams argues that the trial court abused its discretion when it

      sentenced him to the Department of Correction (“DOC”).


[2]   We reverse and remand.


                                         Facts and Procedure
[3]   On April 2, 2017, Williams exposed and fondled himself in front of two minor

      girls. He was arrested two days later and charged with four Level 6 felonies. On

      September 13, Williams pleaded guilty to Level 6 felony harmful performance

      before a minor and Level 6 felony public indecency. The parties agreed to a

      sentence of 910 days as part of the plea agreement, but it left where Williams

      would serve the sentence up to the discretion of the trial court. The plea

      agreement also called for concurrent sentences, and the State agreed not to file a

      habitual offender sentencing enhancement. The trial court accepted Williams’s

      plea, determined he had credit for time served, and stated, “So the remainder of

      the time[,] five hundred and eighty-two (582) days is what’s left; is going to be

      spent in the Department of Correction.” Tr. p. 17


[4]   Williams now appeals.


                                     Discussion and Decision
[5]   Williams argues that the trial court abused its discretion when it ordered him to

      serve the remainder of his sentence in the DOC. Sentencing decisions are


      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2275 | April 30, 2018   Page 2 of 5
      generally left to the sound discretion of the trial court. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007). However, a trial court may be found to have abused its

      discretion in sentencing for: (1) failing to enter a sentencing statement; (2) entering

      a sentencing statement that explains reasons for imposing a sentence where the

      record does not support the reasons provided; (3) entering a sentencing statement

      that omits reasons that are both clearly supported by the record and advanced for

      consideration; or (4) entering a sentencing statement in which the reasons provided

      are improper as a matter of law. Id. at 490–91. The reasons or omissions of reasons

      given by the trial court for a particular sentence are reviewed for an abuse of

      discretion. Id. at 491.

[6]   Williams argues that his sentence violates Indiana Code section 35-38-3-3(d)

      which provides:


              After December 31, 2015, a court may not commit a person
              convicted of a Level 6 felony to the department of correction
              unless:

                       (1)     the commitment is due to the revocation of the
                               person’s sentence for violating probation, parole, or
                               community corrections and the revocation of the
                               person’s sentence is due to a new criminal offense;
                               or

                       (2)     the person:

                               (A)      is convicted of a Level 6 felony and the
                                        sentence for that felony is ordered to be
                                        served consecutively to the sentence for
                                        another felony;



      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2275 | April 30, 2018   Page 3 of 5
                               (B)      is convicted of a Level 6 felony that is
                                        enhanced by an additional fixed term under
                                        IC 35-50-2-8 through IC 35-50-2-16; or

                               (C)      has received an enhanced sentence under IC
                                        9-30-15.5-2;

                       and the person’s earliest possible release date is more than
                       three hundred sixty-five (365) days after the date of
                       sentencing.

              A person who may not be committed to the department of
              correction may be placed on probation, committed to the county
              jail, or placed in community corrections for assignment to an
              appropriate community corrections program.


[7]   Here, because Williams’s offenses occurred on April 2, 2017, the statute

      applies. The exception found in subsection (1) does not apply to Williams

      because he was not sentenced to revocation of probation, parole, or community

      corrections. Subsection (2)(a) does not apply because by the terms of William’s

      plea agreement, his sentences were to run concurrently. Tr. p. 8; Appellant’s

      App. p. 78. Neither Subsection 2(B) nor 2(C) applies because his sentence was

      not enhanced under any of the specified provisions, and the State explicitly

      agreed not to file a habitual offender enhancement as part of Williams’s plea

      agreement. Tr. pp. 9, 16; Appellant’s App. p. 75. Therefore, because none of the

      exceptions found in Indiana Code section 35-38-3-3(d) apply to Williams, the

      trial court erred by ordering him to serve his sentence in the DOC. See Prater v.

      State, 59 N.E.3d 314, 317–318 (Ind. Ct. App. 2016).




      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2275 | April 30, 2018   Page 4 of 5
                                                  Conclusion
[8]   Because Williams’s sentence here was prohibited by Indiana Code section 35-

      38-3-3(d), we reverse the trial court’s order that he serve his sentence in DOC,

      and we remand for the trial court to sentence Williams in compliance with the

      statute.1


[9]   Reversed and remanded.


      Riley, J., and May, J., concur.




      1
        We acknowledge that under Section 35-38-3-3(d) “[a] person who may not be committed to the department
      of correction may be . . . committed to the county jail.” And the State has noted that Williams is “currently
      serving his sentence in the Marion County Jail.” Appellee’s Br. at 5. On remand if the trial court chooses to
      impose a sentence in the Marion County Jail, it has the authority to do so. But it must rectify Williams’s
      erroneous sentence in compliance with Section 35-38-3-3(d).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2275 | April 30, 2018             Page 5 of 5
