FILED
Jan 10 2017, 8:01 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks Curtis T. Hill
Indianapolis, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacob Skipworth, January 10, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1605-CR-973
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff. Judge
The Honorable Steven J. Rubick,
Magistrate
Trial Court Cause No.
49G01-1512-F5-44343
Robb, Judge.
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 1 of 9
Case Summary and Issue
[1] Following a bench trial, Jacob Skipworth was convicted of criminal
confinement and strangulation, both Level 6 felonies. The trial court sentenced
Skipworth to one year for each conviction, to be served concurrently. The trial
court gave Skipworth 258 days’ credit for time served and ordered the
remaining 107 days to be suspended to probation. As a condition of probation,
the trial court ordered Skipworth to complete twenty-six weeks of domestic
violence counseling, and stated if Skipworth complied with all conditions of
probation, it would grant alternate misdemeanor sentencing. Skipworth now
appeals, raising one issue that we expand and restate as two: (1) whether the
trial court abused its discretion in ordering domestic violence counseling, and
(2) whether the trial court’s oral and written sentencing statements conflict.
Concluding the trial court did not abuse its discretion, but that the Sentencing
Order and Abstract of Judgment contain clerical errors, we affirm and remand
to the trial court to correct these errors.
Facts and Procedural History
[2] In the afternoon of December 9, 2015, Skipworth returned to the apartment he
shared with his former girlfriend, Amber Parke. Skipworth arrived in a
paranoid and erratic state of mind, telling Parke “people . . . were there to get
him, harm him, kill him, and [that] . . . people were even on the roof.”
Transcript at 16. When Parke attempted to persuade him that no one was after
him, Skipworth became irate and jumped on top of her. Skipworth straddled
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 2 of 9
Parke, placed his hands around her neck, and strangled her for two to five
minutes before he stopped. At some point, Skipworth had also grabbed two
kitchen knives; he held one to Parke’s throat and wielded the other knife in a
“threatening manner.” Id. at 24. He told Parke to “be quiet because he didn’t
want people to hear [them] . . . and that there [were] people out to get him[.]”
Id. at 23. Eventually, Skipworth received a phone call from his mother and
went outside, allowing Parke to call the police.
[3] The State charged Skipworth with Count I, Intimidation, a Level 5 felony;
Count II, Criminal Confinement, a Level 5 felony; Count III, Strangulation, a
Level 6 felony; Count IV, Criminal Recklessness, a Level 6 felony; Count V,
Domestic Battery, a Class A misdemeanor; Count VI, Battery Resulting in
Bodily Injury, a Class A misdemeanor; and Count VII, Interference with
Reporting a Crime, a Class A misdemeanor. A bench trial was held in March
2016, and the trial court dismissed Count V, Domestic Battery, following
Skipworth’s motion for involuntary dismissal. The trial court found Skipworth
guilty of Criminal Confinement, a Level 6 felony and the lesser included offense
of Count II, and Count III, Strangulation.
[4] At the sentencing hearing, the trial court sentenced Skipworth to one year on
each conviction, to be served concurrently. The trial court gave Skipworth 258
days’ credit for time served, and suspended the remaining 107 days to
probation. The trial court further stated,
He is placed on probation for a period of—or for the remainder
of his one year sentence. While on probation he is to have no
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 3 of 9
contact with the alleged victim in this case. He is to enroll in and
complete a term of domestic counseling. Upon completion of his
domestic violence counseling alternate misdemeanor sentencing
shall be granted.
Id. at 105. When the trial court issued its written Sentencing Order and
Abstract of Judgment, the trial court ordered Skipworth to complete “26
weeks” of domestic violence counseling and stated that upon successful
completion of probation, alternate misdemeanor sentencing “shall be
considered.” Appellant’s Appendix at 14, 16. Skipworth now appeals. 1
Discussion and Decision
I. Domestic Violence Counseling
[5] Skipworth first argues the trial court abused its discretion in ordering domestic
violence counseling. Specifically, he asserts because he was not convicted of
domestic battery, it was unreasonable for the trial court to order him to enroll in
and attend a domestic violence counseling course.
[6] We review a trial court’s sentencing decisions for an abuse of discretion.
McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007). An abuse of discretion
occurs when a sentencing decision is “clearly against the logic and effect of the
1
Skipworth was on parole at the time he committed these crimes. Following his sentencing, he was
remanded to the Indiana Department of Correction and will not begin probation for this case until he has
completed his current sentence.
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 4 of 9
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id. (citation omitted).
[7] Initially, we note trial courts have broad discretion in determining the
appropriate conditions of a defendant’s probation. Howe v. State, 25 N.E.3d
210, 213 (Ind. Ct. App. 2015). This discretion is limited only by the principle
that the conditions imposed must be reasonably related to the treatment of the
defendant and the protection of public safety. Id. Further, Indiana Code
section 35-38-2-2.3(a)(4) permits a trial court to, as a condition of probation,
require a person to “[p]articipate in a treatment program, educational class, or
rehabilitative service . . . .”
[8] We are unpersuaded Skipworth cannot be ordered to take domestic violence
counseling simply because he was not convicted of domestic battery. As noted
above, the trial court dismissed the domestic battery charge following
Skipworth’s motion for involuntary dismissal. In dismissing the charge, the
trial court noted Parke’s 911 call referred to Skipworth and herself as “just
roommates.” Tr. at 72. However, this does not fully describe their
relationship. The record is clear Skipworth and Parke previously had an
intimate relationship for several months and lived together at multiple
residences. Following their break-up, Skipworth moved out for several months
before returning and living with Parke as “just roommates.” Regardless of their
self-described “roommate” relationship, Skipworth’s convictions of
strangulation and criminal confinement involving a woman he had a previous
intimate relationship with contain characteristics of domestic violence and the
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 5 of 9
trial court’s dismissal of the domestic battery charge has no bearing on its ability
to assess whether domestic violence counseling is necessary as a treatment
program. Therefore, domestic violence counseling is reasonably related to
Skipworth’s treatment, and the trial court did not abuse its discretion in
ordering Skipworth to complete domestic violence counseling.2
II. Conflict Between Oral and Written Sentencing
Statements
[9] Skipworth also contends there are two inconsistencies between the trial court’s
oral sentencing statement and its written Sentencing Order and Abstract of
Judgment. When oral and written sentencing statements conflict, we examine
them together to discern the intent of the sentencing court. Walker v. State, 932
N.E.2d 733, 738 (Ind. Ct. App. 2010). We may remand the case for correction
of clerical errors if the trial court’s intent is unambiguous. Id. (citing Willey v.
State, 712 N.E.2d 434, 445 n.8 (Ind. 1999) (“Based on the unambiguous nature
of the trial court’s oral sentencing pronouncement, we conclude that the
Abstract of Judgment and Sentencing Order contain clerical errors and remand
this case for correction of those errors.”).
2
Skipworth also asserts it was improper for the trial court to condition alternate misdemeanor sentencing on
his completion of domestic violence counseling. See Ind. Code § 35-50-2-7(c) (stating a trial court may enter
judgment on a Level 6 felony as a Class A misdemeanor). However, Indiana Code section 35-38-1-1.5
expressly allows the trial court to condition alternate misdemeanor sentencing on a person’s fulfillment of
certain conditions. The statute states, a “court may enter judgment of conviction as a Level 6 felony with the
express provision that the conviction will be converted to a conviction as a Class A misdemeanor if the
person fulfills certain conditions.” Ind. Code § 35-38-1-1.5(a).
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 6 of 9
[10] Skipworth argues that the trial court’s written sentencing statements erred by (1)
making alternate misdemeanor sentencing discretionary upon successful
completion of probation, and (2) requiring a twenty-six-week domestic violence
counseling course as a condition of probation because it is impossible to
complete before his suspended sentence expires. We agree with Skipworth that
the written Sentencing Order and Abstract of Judgment contain clerical errors.
[11] First, Skipworth argues the trial court erred by making alternate misdemeanor
sentencing discretionary upon successful completion of probation. As noted
above, the trial court stated at the sentencing hearing, “[u]pon completion of his
domestic violence counseling alternate misdemeanor sentencing shall be
granted.” Tr. at 105 (emphasis added). The Sentencing Order and Abstract of
Judgment, however, state that alternate misdemeanor sentencing “shall be
considered after successful completion of probation.” Appellant’s App. at 14, 16
(emphasis added).
[12] Although there is no guarantee that Skipworth will successfully complete his
probation, Indiana Code section 35-38-1-1.5(d) clearly states the trial court
“shall enter judgment of conviction as a Class A misdemeanor if the person
fulfills the conditions set by the court.” The condition set by the trial court in its
oral sentencing statement, and which we believe represents the unambiguous
intent of the trial court, is that alternate misdemeanor sentencing shall be
granted upon Skipworth’s successful completion of domestic violence
counseling. If Skipworth meets this requirement, the statute mandates the trial
court shall enter a judgment of conviction as a Class A misdemeanor without
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 7 of 9
discretion to consider otherwise. Therefore, the written Sentencing Order and
the Abstract of Judgment contain a clerical error and we remand to the trial
court to correct the error.
[13] Second, Skipworth argues the trial court ordered a condition of probation that
is impossible for him to complete. As noted above, the trial court sentenced
him to one year, awarded him 258 days’ credit for time served, and suspended
the remaining 107 days to probation. In its oral sentencing statement, the trial
court stated, “[Skipworth] is to enroll in and complete a term of domestic
counseling. Upon completion of his domestic violence counseling alternate
misdemeanor sentencing shall be granted.” Tr. at 105 (emphasis added). In the
written Sentencing Order and Abstract of Judgment, the trial court noted
alternate misdemeanor sentencing “shall be considered after successful
completion of probation.” Appellant’s App. at 14, 16. By the terms of the
Sentencing Order and Abstract of Judgment, for Skipworth to be eligible for
alternate misdemeanor sentencing, he must successfully complete probation.
To successfully complete probation, he must enroll in and complete a twenty-
six-week (or 182-day) domestic violence counseling course, which is impossible
to fulfill in 107 days.
[14] We do not believe it was the trial court’s intent for Skipworth to complete
domestic violence counseling as a condition of probation, as clearly this is an
impossible achievement. Rather, to comply with his conditions of probation,
Skipworth must (1) comply with all standard conditions of probation, and (2)
enroll in and attend a twenty-six-week domestic violence counseling course
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 8 of 9
until his probationary period terminates. If he wishes to become eligible for
alternate misdemeanor sentencing and have his Level 6 felonies converted to
Class A misdemeanors, he must complete the twenty-six-week domestic
violence counseling course as ordered by the trial court. The alternate
misdemeanor sentencing statute does not limit the trial court to the
probationary period; rather, it only states “the conviction will be converted to a
conviction as a Class A misdemeanor if the person fulfills certain conditions.”
Ind. Code § 35-38-1-1.5(a). Therefore, if Skipworth wishes to obtain alternate
misdemeanor sentencing, he must comply with the trial court’s conditions.
However, we conclude the trial court’s Sentencing Order and Abstract of
Judgment contains a clerical error conditioning alternate misdemeanor
sentencing on the successful completion of probation rather than successful
completion of domestic violence counseling and we remand to the trial court to
correct this error.
Conclusion
[15] We conclude the trial court did not abuse its discretion in ordering domestic
violence counseling. However, the trial court’s Sentencing Order and Abstract
of Judgment contain clerical errors and we remand to the trial court to correct
those errors.
[16] Affirmed and remanded.
Kirsch, J., and Barnes, J., concur.
Court of Appeals of Indiana | Opinion 49A02-1605-CR-973 | January 10, 2017 Page 9 of 9