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

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