Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Timothy P. Broden

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Calvin A. Lowe,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 26, 2019

Court of Appeals Case No.

19A-CR-574

Appeal from the Tippecanoe 

Circuit Court

The Honorable Sean M. Persin, 

Judge

Trial Court Cause No.

79C01-1808-F5-152

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 2 of 8

STATEMENT OF THE CASE

[1] Appellant-Defendant, Calvin Lowe (Lowe), appeals his sentence following his 

guilty plea to attempted burglary, Ind. Code §§ 35-43-2-1, 35-41-5-1, a Level 5 

felony; resisting law enforcement using a vehicle, I.C. §§ 35-44.1-3-1(a)(3), 35-

44.1-3-1(b)(1)(A), a Level 6 felony; and to being an habitual offender, I.C. § 35-

50-2-8(a). 

[2] We affirm.

ISSUE

[3] Lowe presents one issue on appeal, which we restate as: Whether remand is 

necessary for resentencing due to an inconsistency between the trial court’s oral 

and written sentencing statements. 

FACTS AND PROCEDURAL HISTORY

[4] On August 10, 2018, Lowe attempted to open the doors of a business, La 

Zacatecana,

1 in Lafayette, Indiana, when it was closed and without the 

permission of the owners. Lowe intended to commit a theft inside the business

if he had been successful at entering. When officers of the Lafayette Police 

Department responded to an alarm signal, Lowe fled from them in his vehicle, 

despite the fact that he was aware that the officers were in pursuit. According 

to the probable cause affidavit filed in this case, officers noticed that the doors 

 

1

 This business is referred to as “La Sacatina” in the transcript. (Transcript Vol. II, p. 22). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 3 of 8

of two other businesses located in the same plaza as La Zacatecana “had their 

locks punched out and appeared to have been tampered with.” (Appellant’s 

App. Vol. II, p. 54). 

[5] On August 15, 2018, the State filed an Information, charging Lowe with three 

Counts of attempted burglary and one Count of resisting law enforcement using 

a vehicle. In a separate Information, the State alleged that Lowe was an 

habitual offender. On December 14, 2018, Lowe pleaded guilty to one Count 

of attempted burglary, resisting law enforcement using a vehicle, and to being 

an habitual offender due to having three prior, unrelated felony convictions in 

the state of Illinois, two for forgery and one for theft. 

[6] The presentence investigation report (PSI) revealed that Lowe had a total of five 

prior felony convictions—three for forgery, one for burglary, and one for theft. 

Lowe had violated his probation on three occasions, and he was on parole in 

Illinois for one of his forgery convictions when he committed the instant 

offenses. Lowe also had a felony theft case pending in Illinois. Lowe reported 

having been diagnosed with bipolar disorder in 1998. The presentence 

investigator recommended that the aggravating factors for sentencing were 

Lowe’s criminal history and that he had recently violated the conditions of his 

parole. The presentence investigator found no mitigating circumstances. The 

presentence investigator recommended that the trial court impose a five-year 

sentence on the attempted burglary conviction, enhanced by two years for being 

an habitual offender, and a two-year sentence on the resisting law enforcement 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 4 of 8

conviction, all to be served consecutively, for an aggregate sentence of nine

years. 

[7] On February 8, 2019, the trial court held Lowe’s sentencing hearing. The State 

argued that the mitigating circumstances were Lowe’s guilty plea and his 

expressions of remorse but that the significance of the guilty plea was lessened 

due to the benefit he gained in the dismissal of the other two burglary charges. 

The State argued that the aggravating circumstances were Lowe’s criminal 

history, his recent violation of the conditions of his parole, and the nature of the 

offense, in that Lowe planned to commit the burglary and came to Lafayette 

expressly to steal from businesses there. During his allocution Lowe told the 

trial court that the offenses were the result of a negative mental health episode 

and stated that “I’m just so embarrassed, I’ve never done anything like this 

before, I feel ridiculous that it happened . . . .” (Tr. Vol. II, p. 34). 

[8] In its oral sentencing statement, the trial court found that, due to Lowe’s

criminal history, it was “struggling” with accepting his explanations for the 

offenses. (Tr. Vol. II, p. 42). The trial court also noted that Lowe had planned 

the burglary and that those who plan burglaries are aware that, if they are 

caught, they will go to prison. The trial court explained as follows:

That’s kind of where I’m at and you got caught, and you tried to 

run and now is the date of sentencing and it’s hard to look at 

those cases and say well probation is appropriate or let’s suspend 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 5 of 8

the sentence and because you knew exactly what you’re getting 

into unfortunately. When this all occurred.2

(Tr. Vol. II, p. 44). 

[9] The trial court found as aggravating circumstances Lowe’s criminal history and 

his recent violation of parole. The trial court found Lowe’s guilty plea to be 

“significant” as a mitigator. (Tr. Vol. II, p. 45). The trial court also found 

Lowe’s mental health to be a mitigating circumstance but that it “may have 

played some part of this, not all of it. You knew what you were doing.” (Tr. 

Vol. II, p. 45). The trial court stated, “I believe the aggravators outweigh the 

mitigating factors” and accepted the sentencing recommendations contained in 

the PSI. (Tr. Vol. II, p. 45). The trial court sentenced Lowe to five years for 

the attempted burglary and enhanced that sentence by two years for being an 

habitual offender. The trial court sentenced Lowe to two years for resisting law 

enforcement and ordered Lowe to serve all sentences consecutively, for an 

aggregate sentence of nine years. The trial court also suspended two years to 

probation. Prior to concluding the hearing, the trial court noted that the 

premeditated nature of the crime and Lowe’s apparent targeting of a 

“vulnerable” business community required serious repercussions and merited 

the sentence imposed. (Tr. Vol. II, p. 46). In its written sentencing statement, 

 

2

 These statements are attributed to Lowe in the transcript. However, it is evident from the context of the 

remarks that it is the trial court making them, not “the Defendant”. (Tr. Vol. II, p. 44). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 6 of 8

the trial court imposed the same sentence but found that the “mitigating factors 

outweigh the aggravating factors.” (Appellant’s App. Vol. II, p. 18). 

[10] Lowe now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

[11] Lowe contends that the trial court erred when it imposed enhanced, consecutive 

sentences after finding in its written sentencing statement that the mitigating 

circumstances outweighed the aggravating circumstances. However, Lowe also 

acknowledges that the trial court found in its oral sentencing statement that the

aggravators outweighed the mitigators. As a general rule, we review a trial 

court’s imposition of sentence 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 (Ind. 

2007). A trial court may abuse its discretion by entering a sentencing statement

that explains the imposition of the sentence with reasons that are not supported 

by the record or by giving reasons that are improper as a matter of law. Id. at 

490-91. When a trial court issues conflicting sentencing statements, “[r]ather 

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.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). If the two statements 

truly conflict, the court may credit the statement that accurately pronounces the 

sentence, or it may remand for resentencing. Id. 

[12] Lowe urges us that remand is necessary because “if the trial court found that 

the mitigating factors outweighed the aggravating factors, then the imposition 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 7 of 8

of enhanced sentences would be highly inappropriate.” (Appellant’s Br. p. 8). 

Lowe offers a similar argument regarding the trial court’s imposition of 

consecutive sentences. However, Lowe does not develop any argument that the 

mitigating circumstances actually outweighed the aggravating ones, and his 

argument ignores that we have the option of assessing the conflicting statements 

and crediting the one which we find accurately pronounces the sentence. 

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

[13] Here, the trial court imposed identical sentences in its oral and written 

sentencing statements. Our examination of both statements leads us to 

conclude that the trial court’s oral statement accurately pronounced the 

sentence. In its oral sentencing statement, the trial court found two aggravating 

circumstances, namely Lowe’s criminal history and his recent parole violation, 

and it stated that his premeditation and selection of a “vulnerable” victim 

merited the sentence imposed. (Tr. Vol. II, p. 46). While the trial court found 

Lowe’s guilty plea to be significant, it found his mental illness to be less so

because, while it may have played a role, he was still aware of his conduct. In 

addition, the trial court adopted the sentencing recommendations of the 

probation department’s investigator, who found no mitigating circumstances,

which also leads us to conclude that the trial court did not accord overriding 

weight to the mitigators it found. In short, we find that the trial court’s 

inconsistent statements regarding the mitigating and aggravating circumstances 

were merely an oversight or a clerical error and that its intent to impose 

enhanced, consecutive sentences is sufficiently clear in the record that remand is 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 8 of 8

not necessary. See Dowell v. State, 873 N.E.2d 59, 60-61 (Ind. 2007) (applying 

McElroy and resolving conflicting sentencing statements after a comparison 

rather than remanding for resentencing). 

CONCLUSION

[14] Based on the foregoing, we conclude that the trial court intended to find that 

the aggravators outweighed the mitigators for sentencing and that remand is not 

necessary to clarify the trial court’s reasons for the imposition of its sentence. 

[15] Affirmed.

[16] Vaidik, C. J. and Bradford, J. concur