Charles Kinnel v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 17, 2018
• Docket: 49A05-1708-CR-1892
• 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 Aug 17 2018, 8:55 am

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

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Charles Kinnel Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles Kinnel, August 17, 2018 Appellant-Petitioner, Court of Appeals Case No. 49A05-1708-CR-1892 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Respondent. Hawkins, Judge Trial Court Cause No. CR82156E

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018 Page 1 of 5 Case Summary [1] Charles Kinnel (“Kinnel”) brings this pro se appeal from the denial of his

motion to correct error, which related to the denial of his motion to correct a

facially erroneous sentence pursuant to Indiana Code Section 35-38-1-15.

Kinnel argues that the trial court abused its discretion by declining to correct the

alleged sentencing error. We affirm.

Facts and Procedural History [2] In the 1980s, Kinnel was convicted of murder, robbery, and conspiracy to

commit robbery, and received an aggregate sentence of 110 years in prison.

Kinnel’s direct appeal was unsuccessful, but he later obtained post-conviction

relief that resulted in a vacated sentence with respect to the robbery conviction.

Kinnel eventually brought the instant motion to correct erroneous sentence,

which the trial court denied. The trial court then denied Kinnel’s motion to

correct error. Although Kinnel initially filed a belated appeal that resulted in its

dismissal, this Court reinstated the appeal upon Kinnel’s request.

Discussion and Decision [3] Generally, we review a ruling on a motion to correct error “only for abuse of

discretion.” Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). “But when . . . a

motion to correct error depends on a question of law, we review the trial court’s

resolution of that question de novo.” Id. In this case, the motion to correct error

involved the denial of a motion to correct erroneous sentence. Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018 Page 2 of 5 [4] Independent of pursuing a direct appeal or seeking post-conviction relief, an

individual may challenge his sentence by filing a motion to correct erroneous

sentence in accordance with Indiana Code Section 35-38-1-15. See Robinson v.

State, 805 N.E.2d 783, 786 (Ind. 2004). A court may grant the motion “only

when the sentence is erroneous on its face.” Id. (quotation marks omitted).

That is, where “sentencing errors . . . are clear from the face of the judgment

imposing the sentence in light of the statutory authority.” Id. at 787. Thus, a

motion to correct erroneous sentence is improper where its resolution would

require “reference to other matters in or extrinsic to the record.” Id. at 787-88.

[5] At bottom, Kinnel argues that his sentence is erroneous due to double jeopardy

principles. That is, Kinnel asserts that his conspiracy to commit robbery

conviction was elevated to a Class A felony because of the same act of murder

supporting his murder conviction, in violation of his rights. Yet, evaluating a

claim of double jeopardy requires reference to offense-specific facts that are not

apparent from the face of the judgment. See, e.g., Richardson v. State, 717 N.E.2d

32, 50-55 (Ind. 1999) (articulating tests for double jeopardy). Kinnel attempts

to escape this issue by arguing that the trial court should have entered a more

specific judgment showing that he was convicted of “murder in the commission

of robbery” instead of just “show[ing] that he was convicted of murder.”

Appellant’s Br. at 7 (emphasis added). Yet, even if the judgment contained the

additional language Kinnel suggests, there would still be no facially apparent

violation of double jeopardy principles. Rather, to evaluate alleged error of this

nature, the trial court would need to examine the facts supporting the murder

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018 Page 3 of 5 conviction and the elevation, including whether there were separate victims.

See id. at 56 (Sullivan, J., concurring) (articulating the analysis for a double

jeopardy claim involving an enhancement “for the very same behavior or harm

as another crime for which the defendant has been convicted and punished,” in

which case no relief would be provided “where separate victims are involved”).

[6] Ultimately, based upon Kinnel’s motion to correct erroneous sentence, Kinnel

would be entitled to relief only after consideration of the merits of his claim of

double jeopardy—an allegation of error that cannot be addressed by referring

only to the face of the judgment. Thus, the trial court could not have properly

corrected Kinnel’s sentence upon a motion to correct erroneous sentence. See

Robinson, 805 N.E.2d at 787 (“[T]he ‘facially erroneous’ prerequisite should

henceforth be strictly applied.”); see also Micheau v. State, 74 N.E.3d 567 (Ind.

Ct. App. 2017) (vacating the trial court’s grant of relief on double jeopardy

grounds where the double jeopardy issue was raised in a motion to correct

erroneous sentence), trans. denied.1 Accordingly, the trial court did not abuse its

discretion by denying Kinnel’s motion to correct error and underlying motion.

1 Directing us to Woodcox v. State, 30 N.E.3d 748 (Ind. Ct. App. 2015), Kinnel asserts that a court may nevertheless look beyond the face of the judgment when doing so serves the interests of justice. However, Kinnel’s reliance on Woodcox is misplaced. There, this Court looked beyond a facially defective sentencing judgment to prevent an unjust “sentencing windfall”—where the facial defect arose from a clerical error showing a conviction for a Class B felony instead of the actual Class A felony. See Woodcox, 30 N.E.3d at 752-53. Nonetheless, it is not as though Kinnel lacks a procedural vehicle to pursue his claim, as he may seek authorization to file a successive petition for post-conviction relief. See Ind. Post-Conviction Rule 12.

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018 Page 4 of 5 [7] Affirmed.

Mathias, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018 Page 5 of 5