Brian Sawyer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 24, 2016
• Docket: 49A02-1504-CR-288
• Status: Published

Opinion

MEMORANDUM DECISION FILED Mar 24 2016, 8:56 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

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 Brian Sawyer Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian Sawyer, March 24, 2016 Appellant-Defendant, Court of Appeals Cause No. 49A02-1504-CR-288 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant A. Hawkins, Appellee-Plaintiff. Judge Trial Court Cause No. 49G05-0510-FA-184250

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016 Page 1 of 4 Case Summary [1] Brian Sawyer appeals the denial of his motion to correct erroneous sentence.

We affirm.

Issue [2] Sawyer raises one issue, which we restate as whether the trial court properly

denied his motion to correct erroneous sentence.

Facts [3] In August 2006, Sawyer pled guilty to rape and criminal deviate conduct, Class

A felonies. In September 2006, the trial court sentenced him to fifty years on

each count, suspended twenty years from each count, and ordered the sentences

to run consecutively. Saywer’s aggregate sentence is one-hundred years with

sixty years executed.1 On April 16, 2015, Sawyer filed a motion to correct

erroneous sentence. The trial court denied that motion the same day. Sawyer

now appeals.

Analysis [4] Sawyer contends his convictions violate the Indiana Constitution’s prohibition

against double jeopardy. See Ind. Const. Art. 1, § 14. He asks us to reduce his

Class A felony conviction for criminal deviate conduct to a Class B felony and

“resentence him accordingly.” Appellant’s Br. p. 5.

1 Sawyer challenged the appropriateness of his sentence on direct appeal. We affirmed. See Sawyer v. State, No. 49A04-0610-CR-552 (Ind. Ct. App. July 31, 2007).

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016 Page 2 of 4 [5] 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.

We “defer to the trial court’s factual finding” on a motion to correct erroneous

sentence and “review its decision only for abuse of discretion.” Fry v. State, 939

N.E.2d 687, 689 (Ind. Ct. App. 2010) (quotations omitted) (citation omitted).

An abuse of discretion 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).

[6] Sentencing errors are best presented to the trial court in a motion to correct

error under Indiana Trial Rule 59 or on direct appeal. Robinson v. State, 805

N.E.2d 783, 786 (Ind. 2004). Thereafter, a defendant may seek relief for certain

claims under the Indiana Post-Conviction Rules. Id. A motion to correct

erroneous sentence is an alternate remedy; however, that remedy is reserved for

correcting only those sentencing errors that are clear from the face of the

judgment imposing the sentence in light of the statutory authority. Id. “As to

sentencing claims not facially apparent, the motion to correct sentence is an

improper remedy. Such claims may be raised only on direct appeal and, where

appropriate, by post-conviction proceedings.” Id. at 787.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016 Page 3 of 4 [7] Sawyer raises a substantive double jeopardy argument and asks us to conclude

his convictions are the “same offense” pursuant to the “statutory elements”

analysis detailed in Richardson v. State and to reduce his Class A felony

conviction for criminal deviate conduct to a Class B felony. Richardson v. State,

717 N.E.2d 32, 49 (Ind. 1999). He also asks us to resentence him accordingly.

[8] The abstract of judgment issued on September 1, 2006, states the crimes for

which Sawyer was convicted and the sentences imposed thereon. It provides

neither information regarding the statutory elements of the crimes Sawyer

challenges nor the actual evidence used to convict him. Such information is

crucial to a Richardson analysis. Sawyer’s argument on appeal is precisely the

sort of substantive claim that may only be raised on direct appeal or, if

appropriate, in a petition for post-conviction relief. It cannot be evaluated by

simply reviewing the trial court’s sentencing order. Sawyer has not established

that the trial court abused its discretion by denying his motion.

Conclusion [9] The trial court did not abuse its discretion in denying Sawyer’s motion to

correct erroneous sentence. We affirm.

[10] Affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016 Page 4 of 4