Kenneth L. Shafer v. State of Indiana

On January 8, 2015, the State charged Kenneth Shafer with three counts of

intimidation, each Level 6 felonies, and one count of public intoxication, a

Class B misdemeanor.1 Shafer pleaded guilty to all counts and a sentencing

hearing was held on May 4, 2015. The trial court orally sentenced Shafer to an

aggregate sentence of four years as follows:

Count I, two and one-half years at the Indiana Department of Correction (IDOC);



1 Shafer has an extensive criminal history that includes convictions for felony theft, battery with injury, and operating a vehicle while intoxicated, as well as a host of misdemeanor convictions, including numerous public intoxication convictions. See Appellant’s App. p. 17-24.



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Count II, one and one-half years at the IDOC, consecutive to Count I;

Count III, one and one-half years at the IDOC, consecutive to Count I but concurrent to Count II;

Count IV, “six months Elkhart County Jail, placed on one year of good behavior, suspended.”

Sent. Tr. p. 22-24.

[3] The written sentencing order and abstract of judgment, however, are

inconsistent with this oral sentence. Specifically, they state that Count IV is to

be served concurrent to Counts II and III and is not suspended. Shafer now

appeals his sentence, requesting that this Court find that the written sentencing

order is correct.

Discussion and Decision

[4] The approach employed by Indiana appellate courts in reviewing sentences in

non-capital cases is to examine both the written and oral sentencing statements

to discern the findings of the trial court. McElroy v. State, 865 N.E.2d 584, 589

(Ind. Ct. App. 2007); see also Whatley v. State, 685 N.E.2d 48, 50 (Ind. 1997)

(where the Court had the option of either striking a sentence modification that

appeared in a CCS entry and contradicted the trial court’s oral sentencing order

or remanding to the trial court for a proper sentencing, the Court found that the

contradiction was not harmless error and elected to reinstate the original in



Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-898 | January 29, 2016 Page 4 of 5

court sentencing and vacate the subsequent contradictory language). 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.

[5] Here, at the time of sentencing, the trial court orally ordered the following

sentence on Count IV: “six months of Elkhart County Jail, placed on one year

of good behavior, suspended.” Sent. Tr. p. 23. In the written sentencing order,

there is no mention of this sentence being suspended, but the order gives Shafer

credit for 119 days served plus applicable earned credit time. Appellant’s App.

p. 27. Furthermore the abstract of judgment ordered Shafer to serve 180 days

on Count IV. See id. at 29. Orally at sentencing, in the written order, and in the

abstract of judgment, the trial court ordered Count IV to run concurrent with

Counts II and III.

[6] Shafer concedes that since Count IV was to run concurrent with Counts II and

III, this discrepancy may have no actual impact. “However, Shafer will not

receive credit for time[] served on Count IV, if the oral sentence is controlling,

and a possibility exists that he may have to serve additional time should he be

released on Counts I, II, and III.” Appellant’s Br. p. 2. Shafer thus requests

that we find the written sentencing order, which is consistent with the abstract

of judgment, to be the proper sentencing order. The State contends that it

makes no difference whether a sentence served concurrently with a longer,

executed sentence is deemed “suspended,” and thus the error is harmless. See

Appellee’s Br. p. 8.

We agree that the error is likely harmless, but in light of the

scenario set forth by Shafer, we find the best course of action is to determine

that the written sentencing order, which is consistent with the abstract of

judgment and under which Shafer will receive credit for time served, is the

proper sentencing order.