Bruce Morgan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 21, 2017
• Docket: 35A02-1608-CR-1864
• 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 Mar 21 2017, 5:26 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 Bruce Morgan Curtis T. Hill, Jr. Michigan City, Indiana Indianapolis, Indiana

Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bruce Morgan, March 21, 2017 Appellant-Defendant, Court of Appeals Case No. 35A02-1608-CR-1864 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Appellee-Plaintiff. Judge Trial Court Cause No. 35C01-0711-FB-78

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 35A02-1608-CR-1864 | March 21, 2017 Page 1 of 4 Case Summary [1] Bruce Morgan appeals the denial of his motion to correct erroneous sentence.

We affirm.

Issue [2] Morgan presents one issue for our review, which we restate as whether the trial

court abused its discretion by denying Morgan’s motion to correct erroneous

sentence.

Facts [3] In February 2004, Morgan pled guilty to nine counts of burglary—eight Class B

felonies and one Class C felony. The plea agreement capped Morgan’s

executed sentence for each count at twelve and one-half years, and the parties

agreed the sentences for Counts 4 through 9 (five Class B felonies and the Class

C felony) would run concurrently. Morgan and the State otherwise did not

make an agreement regarding concurrent or consecutive sentencing. Pursuant

to the plea agreement, Morgan waived his right to appeal his sentence.

[4] On Counts 1 through 8, the trial court sentenced Morgan to serve eighteen

years with five and one-half years suspended for each count. On Count 9, the

trial court sentenced Morgan to seven years. The trial court ordered Morgan to

serve his sentences on Counts 1, 2, and 3 consecutively and Counts 4 through 9

concurrently. Morgan was ordered to serve his sentences on Counts 4 through

9 consecutive to Counts 1 through 3. Morgan’s executed sentence was fifty

years. Morgan appealed his sentence. This Court concluded Morgan explicitly Court of Appeals of Indiana | Memorandum Decision 35A02-1608-CR-1864 | March 21, 2017 Page 2 of 4 waived his right to appellate review of his sentence and affirmed that sentence.

Morgan v. State, No. 35A02-0804-CR-350 (Ind. Ct. App. Sept. 26, 2008), trans.

denied. On July 21, 2016, Morgan filed a Motion to Correct Erroneous

Sentence. The trial court denied that motion, and Morgan now appeals.

Analysis [5] Morgan argues the trial court erred by denying his motion to correct erroneous

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.

Ind. Code § 35-38-1-15. “When we review the court’s decision on a motion to

correct erroneous sentence, we defer to the trial court’s factual finding and

review its decision only for abuse of discretion.” Fry v. State, 939 N.E.2d 687,

689 (Ind. Ct. App. 2010) (quotations omitted) (citations omitted). Our supreme

court has “repeatedly cautioned” that a motion to correct erroneous sentence is

“only appropriate when the sentence is erroneous on its face.” Robinson v. State,

805 N.E.2d 783, 786 (Ind. 2004) (quotation omitted) (citation omitted).

[6] Morgan does not contend the sentencing order contains a facial error. Instead

he argues that his sentence violates the terms of his plea agreement. This is not

the sort of issue the motion to correct erroneous sentence and a trial court’s

Court of Appeals of Indiana | Memorandum Decision 35A02-1608-CR-1864 | March 21, 2017 Page 3 of 4 ruling thereon are permitted to address. “[T]he statutory motion to correct

sentence should [] be narrowly confined to claims apparent from the face of the

sentencing judgment.” Id. at 787. Because Morgan raises an issue beyond the

confines of that which a trial court may consider, the trial court did not abuse

its discretion by denying his motion.

Conclusion [7] The trial court did not abuse its discretion when it denied Morgan’s motion to

correct erroneous sentence. We affirm.

[8] Affirmed.

Kirsch, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 35A02-1608-CR-1864 | March 21, 2017 Page 4 of 4