Charles Edward Sweeney, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 18, 2020
• Docket: 20A-CR-887
• 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 Sep 18 2020, 8:40 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Charles Edward Sweeney, Jr. Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana

Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles Edward Sweeney, Jr., September 18, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-887 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Maria D. Granger, Appellee-Plaintiff. Special Judge Trial Court Cause No. 10C01-9403-CF-51

Sharpnack, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-887 | September 18, 2020 Page 1 of 4 Statement of the Case [1] Charles Sweeney, Jr. appeals the trial court’s denial of his motion for credit

time. We affirm.

Issue [2] Sweeney presents one issue which we restate as: whether the trial court erred

by denying Sweeney’s motion to apply to his state court sentence the time he

served on his federal court sentence prior to its vacation.

Facts and Procedural History [3] There are two sentences involved here—the state court sentence from which

Sweeney now appeals and a federal court sentence. In 1992, Sweeney was

sentenced in federal court to 210 months in prison for using a pipe bomb to

attempt to damage a police vehicle. See Appellant’s App. Vol. II, p. 15

(Judgment in 92-4-CR-01).

[4] In the state court case underlying this appeal, Sweeney was charged in March

1994 with the 1991 murder of Danny Guthrie. In November 1995, a jury found

Sweeney guilty of Guthrie’s murder, and the court sentenced Sweeney to sixty

years, to be served consecutive to his federal court sentence. See Sweeney v.

State, 704 N.E.2d 86 (Ind. 1998).

[5] On September 11, 2019, Sweeney’s federal conviction was vacated. See

Appellant’s App. Vol. II, p. 5 (Judgment 4:18-cv-00210-SEB-DML). The

Court of Appeals of Indiana | Memorandum Decision 20A-CR-887 | September 18, 2020 Page 2 of 4 United States subsequently dismissed the underlying indictment on January 16,

2020. See id. at 4 (Order 4:92-cr-0004-SEB-VTW).

[6] On January 31, 2020, Sweeney filed a pro se motion for credit time in the state

court cause, seeking credit time against his murder sentence for the time he

served on his federal sentence prior to it being vacated. The trial court denied

Sweeney’s motion, and he appeals that denial.

Discussion and Decision [7] A motion styled as a motion for credit time is taken as a motion to correct an

erroneous sentence under Indiana Code section 35-38-1-15 (1983). Murfitt v.

State, 812 N.E.2d 809, 810 (Ind. Ct. App. 2004). The grant or denial of such a

motion by the trial court is reviewed for abuse of discretion. Molden v. State, 750

N.E.2d 448, 449 (Ind. Ct. App. 2001).

[8] The statutory motion to correct an erroneous sentence is available only to

correct sentencing errors that are plain on the face of the judgment of

conviction. Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Sentencing

claims that are not facially apparent but instead require consideration of the

proceedings before, during, or after trial may not be presented by way of a

motion to correct erroneous sentence. Id. Rather, these claims may be raised

only on direct appeal and, where appropriate, by post-conviction proceedings.

Id.

[9] Resolution of Sweeney’s credit time argument necessarily requires

consideration of factors outside the face of the judgment. As the State notes, to Court of Appeals of Indiana | Memorandum Decision 20A-CR-887 | September 18, 2020 Page 3 of 4 address Sweeney’s argument it would be necessary to consider the orders of the

federal court vacating his conviction and dismissing his indictment as well as

information concerning his federal sentence. Thus, this argument is not

properly presented by way of a motion to correct erroneous sentence (or a

motion for credit time). Accordingly, we cannot say the trial court abused its

discretion by denying Sweeney’s motion for credit time.

[10] Sweeney has already taken a direct appeal of his murder conviction, see Sweeney,

704 N.E.2d 86, and he has previously sought post-conviction relief, the denial

of which was affirmed by this Court. See Sweeney v. State, 886 N.E.2d 1 (Ind.

Ct. App. 2008), trans. denied. Thus, his remaining option to raise his credit time

argument is by filing a proper successive petition for post-conviction relief 1 pursuant to Post-Conviction Rule 1 (12).

Conclusion [11] For the foregoing reasons, we conclude the trial court did not abuse its

[12] Affirmed.

Najam, J., and Robb, J., concur.

1 The State notes in its brief that Sweeney has already filed twenty-seven requests for successive petitions for post-conviction relief. See Appellee’s Br. p. 10.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-887 | September 18, 2020 Page 4 of 4