On Petition to Transfer from the Indiana Court of Appeals No. 21A-CR-363
Carl Eugene McDonald, who has never held a drivers license, operated his vehicle while intoxicated with his three young grandchildren in the vehicle. The State charged McDonald with Level 6 felony operating a vehicle while intoxicated, endangering a person with a passenger less than eighteen years old; three counts Level 6 felony neglect of a dependent; and Class C misdemeanor operating a vehicle without ever receiving a license. The State also alleged McDonald is a habitual vehicle substance offender (HVSO). McDonald pleaded guilty to all charges and the HVSO enhancement without a plea agreement.
At the sentencing hearings, the State, McDonalds counsel, and the trial court agreed the HVSO enhancement was nonsuspendible. The court entered an order sentencing McDonald to two years on each of the felony convictions and 60 days on the misdemeanor conviction, with all sentences suspended and served concurrently to each other and consecutively to the HVSO sentence. The court sentenced McDonald to four and one-half years on the HVSO enhancement. The abstract of judgment differs from the sentencing order by imposing a two-year sentence for the misdemeanor conviction.
On appeal, McDonald argues his multiple convictions constitute double jeopardy and that the trial court erred in sentencing. The Court of Appeals dismissed in part, affirmed in part, reversed in part, and remanded with instructions. McDonald v. State, 173 N.E.3d 1043 (Ind. Ct. App. 2021). We grant transfer and summarily affirm the Court of Appeals opinion, see Ind. Appellate Rule 58(A)(2), with one exception.
We summarily affirm the “Double Jeopardy” section of the Court of Appeals opinion, agreeing “[i]t is well-established that a defendant who has pleaded guilty may not challenge the validity of his conviction on direct appeal.” 173 N.E.3d at 1047 (citing Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996)).
We also summarily affirm the “Sentencing” section of the opinion but for the Court of Appeals’ conclusion that remand for a new sentencing is unnecessary. The Court of Appeals concluded that the abstract of judgment is incorrect regarding the sentence imposed for operating without a license; the trial court incorrectly entered the HVSO enhancement as a separate, consecutive sentence rather than as an enhancement to a felony conviction, citing I.C. § 9-30-15-5.2(d); and the trial court did not understand the HVSO enhancement could be suspended, comparing Ind. Code § 9-30-15.5-2 with § 35-50-2-8(i). The Court of Appeals remanded to the trial court to issue a corrected abstract of judgment and to issue a new sentencing order specifying which felony conviction is enhanced by the HVSO finding. But the Court of Appeals concluded that although the trial court did not understand the HVSO enhancement was suspendible, remand for a new sentencing is unnecessary because the Court of Appeals is “confident that the trial court would have imposed the same sentence had it realized that it could have suspended the HVSO enhancement.” 173 N.E.3d at 1049. We are not so sure. Given the multiple irregularities in McDonalds sentencing, we find it appropriate to remand to the trial court for resentencing.
Per curiam.
Rush, C.J., and David, Massa, Slaughter, and Goff, JJ., concur.