Gabriel Morales v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 26 2018, 6:27 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew M. Kubacki Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Kelly A. Loy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gabriel Morales, December 26, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1083
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Ronnie Huerta,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G19-1704-CM-12045
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1083 | December 26, 2018 Page 1 of 4
Case Summary
[1] Gabriel Morales appeals his vacated conviction for operating a vehicle with an
alcohol concentration equivalent of .15 or greater, a Class A misdemeanor. We
dismiss.
Issue
[2] Morales raises one issue, which we restate as whether the evidence is sufficient
to sustain his vacated conviction for operating a vehicle with an alcohol
concentration equivalent of .15 or greater, a Class A misdemeanor.
Facts
[3] On March 28, 2017, Tylene Hampton was driving home from work at
approximately 9:05 p.m. when her vehicle was struck by a vehicle driven by
Morales. Morales also struck a vehicle driven by Lakshami Mitchell. When
Morales got out of his car, Hampton saw that Morales appeared to be
intoxicated. Officer Bryan Rigby of the Indianapolis Metropolitan Police
Department arrived on the scene and also observed that Morales appeared to be
intoxicated. Morales’ blood alcohol concentration was .261.
[4] The State charged Morales with: (1) Count I, operating a vehicle while
intoxicated endangering a person, a Class A misdemeanor; (2) Count II,
operating a vehicle with an alcohol concentration equivalent of .15 or greater, a
Class A misdemeanor; and (3) Count III, operating a motor vehicle without
ever receiving a license, a Class C misdemeanor. After a bench trial, the trial
court found Morales guilty of Count I and Count II and not guilty of Count III.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1083 | December 26, 2018 Page 2 of 4
The trial court, however, “vacated” Count II. Appellant’s App. Vol. II p. 11.
On Count I, the trial court sentenced Morales to 365 days with 355 days
suspended to probation.
Analysis
[5] Morales appeals his vacated conviction for Count II, operating a vehicle with
an alcohol concentration equivalent of .15 or greater, a Class A misdemeanor. 1
[6] Morales is challenging a conviction that was vacated. We held in Bass v. State,
75 N.E.3d 1100, 1103 (Ind. Ct. App. 2017), that a challenge to the sufficiency
of the evidence underlying a guilty finding “on which there has been no proper
judgment of conviction is, at best, not yet ripe for review.” Similarly, here,
Morales’ challenge to the sufficiency of the evidence regarding his vacated
conviction is not yet ripe for review. See, e.g., Bass, 75 N.E.3d at 1103 (holding
that the defendant’s challenge to the sufficiency of the evidence underlying his
vacated Class C misdemeanor was not yet ripe for review). Consequently, we
dismiss Morales’ appeal.
Conclusion
[7] Morales’ appeal of his vacated conviction is not ripe. We dismiss.
[8] Dismissed.
1
Morales makes no argument regarding his conviction for Count I, operating a vehicle while intoxicated
endangering a person, a Class A misdemeanor.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1083 | December 26, 2018 Page 3 of 4
Brown, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1083 | December 26, 2018 Page 4 of 4