MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 27 2015, 6:25 am 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Anthony W. Taylor-El Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony W. Taylor-El,1 July 27, 2015
Appellant-Defendant, Court of Appeals Case No. 49A05-1411-CR-538 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy J. Barbar, Magistrate Appellee-Plaintiff. Cause No. 49G02-9007-CF-91378
Kirsch, Judge.
[1] Anthony W. Taylor-El was convicted of two Class B felonies and one Class D
felony, and was adjudicated a habitual offender. The sentencing court imposed
1 At the time of his 1991 trial, the defendant’s name was “Anthony W. Taylor.” Appellant’s App. at 24-27.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 1 of 7 an aggregate executed sentence of thirty years. More than twenty years later,
Taylor-El filed a motion to correct erroneous sentence, contending that the trial
court failed to specify the conviction to which his habitual offender
enhancement was attached. On appeal, Taylor-El raises three issues, which we
consolidate and restate as whether the trial court erred in denying his motion to
correct erroneous sentence. Because Taylor-El’s abstract of judgment reveals
that the habitual offender enhancement was attached to the burglary conviction,
we affirm.2
Facts and Procedural History [2] Following a jury trial, Taylor-El was convicted of Class B felony burglary, Class
B felony rape, Class D felony criminal confinement, and was found to be a
habitual offender. During his sentencing hearing, held on March 13, 1991, the
sentencing court addressed Taylor-El as follows:
Okay, at this time, sir, as to Burglary, as a Class B felony, I am going to sentence you to ten (10) years in the Indiana Department of Correction[]. As to Rape, a Class B felony, I’m going to sentence you to ten (10) years . . . . As to Confinement, as a Class D felony, I’m going to sentence you to one and one-half (1½) years . . . . I am going to run those sentences concurrently . . . okay, that means together. As far as the finding of Habitual Offender, I’m going to, pursuant to statute, enhance the sentence by twenty (20) years. That, I believe, has
2 Taylor-El also raised the issue of whether his “fully served sentences for Burglary, Rape and Confinement can be the subject of re-sentencing.” Appellant’s Br. at 1. Because we are affirming the denial of his motion to correct erroneous sentence, we need not address this issue.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 2 of 7 to run consecutively, under the law, sir . . . which I believe then, gives you a total sentence of thirty (30) years.3 Appellant’s App. at 49-50.
[3] Relying on the sentencing court’s oral remarks, Taylor-El filed a motion to
correct erroneous sentence on October 17, 2014, claiming that his sentence was
erroneous on its face because the sentencing court’s oral statement failed to
attach the habitual offender enhancement to a specific conviction. Taylor-El
argued that this error required the trial court “to correct the sentence as it
regards the habitual offender status.” Appellant’s App. at 15. About ten days
later, the trial court summarily denied the motion, noting in pertinent part that
this was not a “facially deficient issue.” Id. at 12. Taylor-El now appeals.
Discussion and Decision [4] Taylor-El claims that the trial court erred in denying his motion to correct
erroneous sentence. We review a trial court’s decision on a motion to correct
erroneous sentence only for an abuse of discretion. Davis v. State, 978 N.E.2d
470, 472 (Ind. Ct. App. 2012). An abuse of discretion occurs when the trial
court’s decision is against the logic and effect of the facts and circumstances
before it. Id. While we defer to the trial court’s factual determinations, we
3 For clarification, we note that the State was mistaken in asserting that Taylor-El was sentenced to thirty years for the burglary, enhanced by twenty years for the habitual offender finding, for an aggregate sentence of fifty years. Appellee’s Br. at 2.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 3 of 7 review legal conclusions de novo. Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct.
App. 2015), trans. denied.
[5] Our court has said that it is in the best interests of all concerned that a
sentencing error be immediately discovered and corrected. Robinson v. State,
805 N.E.2d 783, 786 (Ind. 2004); Woodcox, 30 N.E.3d at 750-51. “In general, a
motion to correct error under Indiana Trial Rule 59 or a direct appeal are the
best options for remedying an erroneous sentence.” Woodcox, 30 N.E.3d at 751.
“Thereafter, a petition for post-conviction relief may be filed on any claims that
have been properly preserved.” Id. Nevertheless, regardless of the fact that
more than two decades have passed since Taylor-El was sentenced, “Indiana
law provides an alternate remedy to correct an erroneous sentence” pursuant to
Indiana Code section 35-38-1-15.4 Id.
[6] A motion to correct sentence under Indiana Code section 35-38-1-15 is
appropriate for “sentencing errors that are clear from the face of the judgment
imposing the sentence in light of the statutory authority.” Id. (citing Robinson,
805 N.E.2d at 787). A sentence is defective on its face if it violates express
statutory authority at the time the sentence is pronounced, as when the sentence
4 Indiana Code section 35-38-1-15 provides:
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.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 4 of 7 fails to show the conviction to which the habitual offender finding is attached.
See Bauer v. State, 875 N.E.2d 744, 747 (Ind. Ct. App. 2007) (case remanded to
trial court with instructions to show habitual offender finding is attached to and
enhances specific conviction), trans. denied.
[7] Here, there appears to be a discrepancy between the oral sentencing statement,
which does not specify which conviction is being enhanced by the habitual
offender finding, and Taylor-El’s written abstract of judgment, which provided,
“COUNT ONE ENHANCED BY 20 YEARS AS DEFENDANT BEING
PROVEN AN HABITUAL OFFENDER.” Appellant’s App. at 57.
[8] Our Supreme Court has said, “As a general rule, when we are faced with a
discrepancy between a sentencing order and an abstract of judgment, we
conclude that the sentencing statement rather than the abstract of judgment
controls.” McElroy v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 27 2015, 6:25 am 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Anthony W. Taylor-El Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony W. Taylor-El,1 July 27, 2015
Appellant-Defendant, Court of Appeals Case No. 49A05-1411-CR-538 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy J. Barbar, Magistrate Appellee-Plaintiff. Cause No. 49G02-9007-CF-91378
Kirsch, Judge.
[1] Anthony W. Taylor-El was convicted of two Class B felonies and one Class D
felony, and was adjudicated a habitual offender. The sentencing court imposed
1 At the time of his 1991 trial, the defendant’s name was “Anthony W. Taylor.” Appellant’s App. at 24-27.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 1 of 7 an aggregate executed sentence of thirty years. More than twenty years later,
Taylor-El filed a motion to correct erroneous sentence, contending that the trial
court failed to specify the conviction to which his habitual offender
enhancement was attached. On appeal, Taylor-El raises three issues, which we
consolidate and restate as whether the trial court erred in denying his motion to
correct erroneous sentence. Because Taylor-El’s abstract of judgment reveals
that the habitual offender enhancement was attached to the burglary conviction,
we affirm.2
Facts and Procedural History [2] Following a jury trial, Taylor-El was convicted of Class B felony burglary, Class
B felony rape, Class D felony criminal confinement, and was found to be a
habitual offender. During his sentencing hearing, held on March 13, 1991, the
sentencing court addressed Taylor-El as follows:
Okay, at this time, sir, as to Burglary, as a Class B felony, I am going to sentence you to ten (10) years in the Indiana Department of Correction[]. As to Rape, a Class B felony, I’m going to sentence you to ten (10) years . . . . As to Confinement, as a Class D felony, I’m going to sentence you to one and one-half (1½) years . . . . I am going to run those sentences concurrently . . . okay, that means together. As far as the finding of Habitual Offender, I’m going to, pursuant to statute, enhance the sentence by twenty (20) years. That, I believe, has
2 Taylor-El also raised the issue of whether his “fully served sentences for Burglary, Rape and Confinement can be the subject of re-sentencing.” Appellant’s Br. at 1. Because we are affirming the denial of his motion to correct erroneous sentence, we need not address this issue.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 2 of 7 to run consecutively, under the law, sir . . . which I believe then, gives you a total sentence of thirty (30) years.3 Appellant’s App. at 49-50.
[3] Relying on the sentencing court’s oral remarks, Taylor-El filed a motion to
correct erroneous sentence on October 17, 2014, claiming that his sentence was
erroneous on its face because the sentencing court’s oral statement failed to
attach the habitual offender enhancement to a specific conviction. Taylor-El
argued that this error required the trial court “to correct the sentence as it
regards the habitual offender status.” Appellant’s App. at 15. About ten days
later, the trial court summarily denied the motion, noting in pertinent part that
this was not a “facially deficient issue.” Id. at 12. Taylor-El now appeals.
Discussion and Decision [4] Taylor-El claims that the trial court erred in denying his motion to correct
erroneous sentence. We review a trial court’s decision on a motion to correct
erroneous sentence only for an abuse of discretion. Davis v. State, 978 N.E.2d
470, 472 (Ind. Ct. App. 2012). An abuse of discretion occurs when the trial
court’s decision is against the logic and effect of the facts and circumstances
before it. Id. While we defer to the trial court’s factual determinations, we
3 For clarification, we note that the State was mistaken in asserting that Taylor-El was sentenced to thirty years for the burglary, enhanced by twenty years for the habitual offender finding, for an aggregate sentence of fifty years. Appellee’s Br. at 2.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 3 of 7 review legal conclusions de novo. Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct.
App. 2015), trans. denied.
[5] Our court has said that it is in the best interests of all concerned that a
sentencing error be immediately discovered and corrected. Robinson v. State,
805 N.E.2d 783, 786 (Ind. 2004); Woodcox, 30 N.E.3d at 750-51. “In general, a
motion to correct error under Indiana Trial Rule 59 or a direct appeal are the
best options for remedying an erroneous sentence.” Woodcox, 30 N.E.3d at 751.
“Thereafter, a petition for post-conviction relief may be filed on any claims that
have been properly preserved.” Id. Nevertheless, regardless of the fact that
more than two decades have passed since Taylor-El was sentenced, “Indiana
law provides an alternate remedy to correct an erroneous sentence” pursuant to
Indiana Code section 35-38-1-15.4 Id.
[6] A motion to correct sentence under Indiana Code section 35-38-1-15 is
appropriate for “sentencing errors that are clear from the face of the judgment
imposing the sentence in light of the statutory authority.” Id. (citing Robinson,
805 N.E.2d at 787). A sentence is defective on its face if it violates express
statutory authority at the time the sentence is pronounced, as when the sentence
4 Indiana Code section 35-38-1-15 provides:
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.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 4 of 7 fails to show the conviction to which the habitual offender finding is attached.
See Bauer v. State, 875 N.E.2d 744, 747 (Ind. Ct. App. 2007) (case remanded to
trial court with instructions to show habitual offender finding is attached to and
enhances specific conviction), trans. denied.
[7] Here, there appears to be a discrepancy between the oral sentencing statement,
which does not specify which conviction is being enhanced by the habitual
offender finding, and Taylor-El’s written abstract of judgment, which provided,
“COUNT ONE ENHANCED BY 20 YEARS AS DEFENDANT BEING
PROVEN AN HABITUAL OFFENDER.” Appellant’s App. at 57.
[8] Our Supreme Court has said, “As a general rule, when we are faced with a
discrepancy between a sentencing order and an abstract of judgment, we
conclude that the sentencing statement rather than the abstract of judgment
controls.” McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007). This is so because
an abstract of judgment is a “‘form issued by the Department of Correction and
completed by trial judges for the convenience of the Department.’” Id. (quoting
Robinson, 805 N.E.2d at 792). “In contrast, a valid written judgment meets the
statutory criteria of Indiana Code section 35-38-3-2.” Id. at 588-89.
[9] That being said, our Supreme Court has recognized that “Marion County
historically has not issued the judgment of conviction and sentence referred to
in I.C. § 35-38-3-2.” Alexander v. State, 4 N.E.3d 1169, 1170 n.2 (Ind. 2014)
(citing Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008)). Therefore, when a
defendant, like Taylor-El, “files a motion to correct an erroneous sentence in a
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 5 of 7 county that does not issue judgments of conviction[,] . . . the trial court’s
abstract of judgment will serve as an appropriate substitute for purposes of
making the claim.” Neff, 888 N.E.2d at 1251.
[10] Taylor-El fails to cite to the abstract of judgment, which clearly sets forth that
the habitual offender enhancement was attached to the burglary conviction.
Appellant’s App. at 57. The abstract of judgment, on its face, reveals no error in
Taylor-El’s sentencing. Furthermore, Taylor-El’s claim of erroneous sentence
arising from the oral sentencing statement—a claim that would require
examination of matters beyond the face of the abstract of judgment—“must be
addressed via direct appeal or post-conviction relief.”5 Neff, 888 N.E.2d at
1251; see Robinson, 805 N.E.2d at 787 (Supreme Court held “that a motion to
correct sentence may only be used to correct sentencing errors that are clear
from the face of the judgment imposing the sentence in light of the statutory
authority. Claims that require consideration of the proceedings before, during,
or after trial may not be presented by way of a motion to correct sentence.”)
The trial court did not abuse its discretion when it denied Taylor-El’s motion to
correct erroneous sentence.
[11] Affirmed.
5 The trial court also denied Taylor-El’s motion to correct erroneous sentence because it had “Previously been adjudicated in a PCR.” Appellant’s App. at 12. Taylor-El does not address this contention in his brief, and we find nothing in the record before us relating to a post-conviction proceeding. That being said, the result of Taylor-El’s claim would be the same—his sentence would not be changed.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 6 of 7 Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-538|July 27, 2015 Page 7 of 7