Aaron E. Isby v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 21, 2019
• Docket: 18A-CR-1659
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 21 2019, 7:19 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Aaron E. Isby Curtis T. Hill, Jr. Westville, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Aaron E. Isby, February 21, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1659 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela Warner Appellee-Plaintiff. Sims, Judge Trial Court Cause No. 48C01-9011-CF-139

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1659 | February 21, 2019 Page 1 of 8 [1] Aaron Isby1 appeals the Madison Circuit Court’s denial of his motion to correct

erroneous sentence. Because addressing Isby’s claims requires consideration of

matters outside the face of the sentencing order, and because Isby’s claims have

already been considered and rejected, we affirm.

Facts and Procedural History

[2] As this court previously stated in an early appeal involving Isby, “Isby’s record

of convictions, sentences, and pro se petitions makes outlining his status

something of a challenge[.]” Isby v. Lemmon, No. 77A01-1504-PL-132, 2015

WL 7686946 at *1 (Ind. Ct. App. Nov. 25, 2015). The basic facts, however, are

that Isby was sentenced in 1988 to a thirty-year sentence for Class A felony

robbery. Id. He was also sentenced to ninety days for contempt of court. Id.

[3] Before he completed these sentences, however, Isby stabbed two correctional

officers in October 1990 and, as a result was charged with two counts of

attempted murder and Class A misdemeanor battery. Isby was convicted on

these charges in 1992 and sentenced to an additional forty years of

incarceration.2 Id. As Isby was already incarcerated serving another sentence,

the trial court awarded Isby no credit time for his pre-trial confinement. Isby’s

1 Isby has also filed numerous cases under the name of Aaron Israel. See Israel v. Donahue, No. 77A01-0802- CV-92, 2008 WL 3498037 at *1 n.1 (Ind. Ct. App. Aug. 14, 2008). 2 Specifically, Isby was sentenced to forty years on the first count of attempted murder, a concurrent term of thirty years on the second count of attempted murder, and a concurrent term of one year on the battery conviction.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1659 | February 21, 2019 Page 2 of 8 convictions were affirmed by this court on direct appeal. Isby v. State, No.

48A02-9402-CR-58 (Ind. Ct. App. April 6, 1995).

[4] In 1996, Isby filed a pro se petition for post-conviction relief. The post-

conviction court granted Isby’s petition in part and denied it in part, reducing

his conviction for Class A misdemeanor battery to a Class B misdemeanor and

reducing his sentence on this count to six months. On appeal, this court

affirmed the post-conviction court’s judgment. Isby v. State, No. 48A02-0203-

PC-216 (Ind. Ct. App. Sept. 6, 2002).

[5] On May 1, 2006, Isby filed a pro se motion to correct erroneous sentence,

claiming he was entitled to credit for time served in prison prior to sentencing in

1992. The trial court summarily denied the motion, and this court affirmed

again. Isby v. State, No. 48A02-0606-PC-463, 2006 WL 3823540 (Ind. Ct. App.

Dec. 29, 2006).

[6] On April 18, 2007, Isby filed a pro se petition for writ of habeas corpus. The

trial court denied the petition because it was not filed in the court in the county

where Isby was incarcerated. This court again affirmed the trial court. Isby v.

Finnan, No. 02A04-0705-CR-292, 2007 WL 3132614 (Ind. Ct. App. Oct. 29,

2007).

[7] On November 27, 2007, Isby filed another petition for writ of habeas corpus,

claiming that he was entitled to release as of August 16, 2003. The trial court

denied his habeas petition, but Isby did not timely appeal. Instead, he filed a

motion for relief from judgment, which the trial court denied. We again

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1659 | February 21, 2019 Page 3 of 8 affirmed the trial court’s judgment on this matter. Isby v. Finnan, 77A01-0806-

CV-281, 2009 WL 1352016 at *1 (Ind. Ct. App. May 14, 2009).

[8] In 2008, Isby completed serving his thirty-year sentence for robbery and began

to serve his sentence for contempt. This sentence was completed in 2009, at

which time Isby began to serve the concurrent sentences that were imposed in

1992.

[9] In 2010, Isby filed a complaint for declaratory and injunctive relief, contending

that he was entitled to immediate release. Specifically, he noted that he had

received a letter from the parole board stating that his projected release date was

2009. Isby claimed that this letter acted to estop the State from arguing that he

had not completed his sentence obligations. The trial court treated this

complaint as a petition for a writ of habeas corpus and granted the State’s

motion for summary judgment. This court affirmed yet again on appeal, noting

that “[t]he Parole Board’s letter to Isby was correct, as far as it went. In early

2009, Isby completed the executed portion of his robbery sentence and the

ninety days he owed on the contempt,” but this did not affect Isby’s forty-year

sentence that he had yet to complete. Isby v. Lemmon, No. 77A01-1504-PL-132,

2015 WL 7686946 (Ind. Ct. App. Nov. 25, 2015).

[10] In 2014, Isby filed yet another petition for writ of habeas corpus. In this

petition, Isby again argued that the letter from the parole board estopped the

State from claiming that he could be imprisoned after this date. Isby also argued

that his sentence for attempted murder should have run concurrently with his

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1659 | February 21, 2019 Page 4 of 8 sentence for robbery. The trial court denied the petition, and Isby again

appealed. On appeal, this court determined that Isby’s claims regarding the

letter were barred by the doctrine of res judicata. Isby v. Brown, No. 77A05-

1601-MI-233, 2016 WL 4697975 (Ind. Ct. App. Sept. 7, 2016). We also held

that Isby could not properly present a claim in a petition for writ of habeas

corpus that his sentence for attempted murder should have begun running as

soon as it was imposed. Id. at *3 (citing Sumbry v. Misc. Docket Sheet for Year

2003, 811 N.E.2d 457, 460 (Ind. Ct. App. 2004) (“a person may not petition a

court for writ of habeas corpus to attack his conviction or sentence.”)).

Nevertheless, we concluded that, pursuant to Indiana Code section 35-50-1-

2(e),3 “Isby was properly ordered to serve his attempted murder sentence

consecutive to his prior sentences. As such, Isby did not begin serving his forty-

year attempted murder sentence until 2009.” Id. Accordingly, we affirmed the

trial court’s denial of Isby’s habeas petition.

[11] The present case represents Isby’s most recent attempt to be released from

prison. In this case, he filed another motion to correct erroneous sentence on

3 The relevant portion of this statute provides: If, after being arrested for one (1) crime, a person commits another crime: (1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or (2) while the person is released: (A) upon the person’s own recognizance; or (B) on bond; the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed. Ind. Code § 35-50-1-2(e). At the time Isby committed his crimes, this provision was codified in subsection 2(b). See Ind. Code § 35-50-1-2 (1990).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1659 | February 21, 2019 Page 5 of 8 January 23, 2018. In his motion, Isby again argued that he was entitled to credit

for time he served from the date of his arrest in the attempted murder case on

November 20, 1990, through his release on his prior sentences, and for time

served up to December 18, 2017. Isby claimed that he was entitled to this credit

because he was “detained” from the date of his arrest and because the trial

court, erroneously according to Isby, ordered his sentence in this case to be

served consecutively to his prior sentences. Isby claimed that his sentence in the

present case actually began to run in 1992 when this sentence was imposed, not

after his prior sentence was completed in 2008. The trial court denied Isby’s

motion, and Isby now appeals.

Standard of Review and Applicable Law

[12] Isby appeals from the denial of his motion to correct erroneous sentence.

Pursuant to Indiana Code section 35-38-1-15:

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

[13] Our supreme court has explained that the purpose of this statute “is to provide

prompt, direct access to an uncomplicated legal process for correcting the

occasional erroneous or illegal sentence.” Robinson v. State, 805 N.E.2d 783, 785

(Ind. 2004) (citation omitted). A motion to correct erroneous sentence is

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1659 | February 21, 2019 Page 6 of 8 appropriate only when the sentencing error is “clear from the face of the

judgment imposing the sentence in light of the statutory authority.” Id. at 787.

Claims that require consideration of the proceedings before, during, or after

trial may not be presented by way of a motion to correct erroneous sentence.

Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct. App. 2010), trans. denied. Such claims

should instead be addressed on direct appeal or through post-conviction relief.

Robinson, 805 N.E.2d at 787. A motion to correct erroneous sentence is a

narrow remedy, and a reviewing court will strictly apply the requirement of a

facially erroneous sentence. Id.

[14] On appeal, we review a trial court’s denial of a motion to correct erroneous

sentence for an abuse of discretion, which occurs when the trial court’s decision

is against the logic and effect of the facts and circumstances before it. Davis v.

State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012).

Discussion and Decision [15] Isby argues on appeal that he is entitled to credit for the time he served from the

date of his arrest in the attempted murder case in 1990, through his release on

his prior sentences, and for time served since then. Isby argues that he was

detained from the date of his arrest in 1990 and that his forty-year consecutive

sentence began to be served in 1992, not when he completed serving his prior

sentences in 2009.

[16] To review Isby’s claims would obviously require us, and the trial court, to

consider matters outside the face of the judgment. This is precisely why he

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1659 | February 21, 2019 Page 7 of 8 attached to his motion twelve exhibits in support of his claims. As explained

above, claims, such as Isby’s, that require consideration of the proceedings

before, during, or after trial may not be presented by way of a motion to correct

erroneous sentence. Davis, 937 N.E.2d at 11. Isby was convicted of two Class A

felonies and one Class A misdemeanor, which was later reduced to a Class B

misdemeanor. For this, he received an aggregate sentence of forty years. We

discern nothing facially erroneous about this sentence. We therefore conclude

that the trial court properly denied Isby’s motion to correct erroneous sentence.

[17] Moreover, as noted by the State, Isby presented this same argument in his

second habeas petition in 2014, which the trial court denied and we affirmed.

Thus, his claims are also res judicata.

[18] For these reasons, we affirm the judgment of the trial court.

Vaidik, C.J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1659 | February 21, 2019 Page 8 of 8