MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 27 2017, 10:03 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Damon Nelson Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Angela Sanchez Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Damon Nelson, October 27, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1611-CR-2600 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley Kroh, Appellee-Plaintiff. Magistrate Trial Court Cause Nos. 49G03-0108-FB-172920 49G03-0108-PC-172920
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 1 of 6 [1] Damon Nelson appeals the order of the trial court denying his motion to correct
erroneous sentence. Nelson raises one issue which we revise and restate as
whether the trial court abused its discretion in denying his motion. We affirm.
Facts and Procedural History
[2] On December 19, 2001, the court sentenced Nelson in Cause No. 49G03-0108-
DF-172920 (“Cause No. 920”) to twenty years for aggravated battery as a class
B felony, eight years for battery as a class C felony, and one year for battery as a
class A misdemeanor.
[3] On November 13, 2015, the court sentenced Nelson under cause number
49G14-1401-FD-264 (“Cause No. 264”) to 1020 days for possession of cocaine
or a schedule I or II drug pursuant to a plea agreement and dismissed other
charges. The sentencing order states that he had already served 510 days and
had earned 510 credit days.
[4] On October 19, 2016, Nelson, pro se, filed a motion to correct erroneous
sentence under Cause No. 920 alleging that he was released from the
Department of Correction on May 31, 2013, was rearrested on refiled charges
on January 23, 2014, and remained in custody until December 3, 2015 with a
parole hold, and that the parole warrant was served on January 28, 2014
starting his sentence. He also asserted that he remained in jail for 705 days on a
parole hold and was entitled to credit days. On October 20, 2016, the court
denied Nelson’s motion.
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 2 of 6 Discussion
[5] The issue is whether the trial court abused its discretion in denying Nelson’s
motion to correct erroneous sentence. Nelson argues that he should be
awarded “credit and good days,” that the trial court violated Ind. Code §§ 35-
50-6-3 and 35-50-6-4, and that “those sentences are to run consecutive I was
only credited 510-1020 total days toward the case however I remained in
custody a total of 702-1404 days.” Appellant’s Brief at 7. The State argues that
Nelson waived all of his claims for failure to make a cogent argument. The
State also argues that regardless of waiver, Nelson appears to be arguing that he
should have received more credit days under Cause No. 920 for his
confinement during the pendency of his case in Cause No. 264, that such an
argument requires the trial court to look at matters outside the face of the
judgment, and that the trial court properly denied Nelson’s motion.
[6] We note that although Nelson is proceeding pro se, such litigants are held to the
same standard as trained counsel and are required to follow procedural rules.
Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Nelson
does not cite to the record in his statement of the case, statement of the facts, or
argument, and he does not include a standard of review. See Ind. Appellate
Rule 46(A)(5) (governing the Statement of Case and providing that “[p]age
references to the Record on Appeal or Appendix are required in accordance
with Rule 22(C)”); Ind. Appellate Rule 46(A)(6) (providing that the Statement
of Facts “shall be supported by page references to the Record on Appeal or
Appendix in accordance with Rule 22(C)”); Ind. Appellate Rule 46(A)(8)
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 3 of 6 (providing that “[e]ach contention must be supported by citations to the
authorities, statutes, and the Appendix or parts of the Record on Appeal relied
on, in accordance with Rule 22,” and that “[t]he argument must include for
each issue a concise statement of the applicable standard of review”). To the
extent Nelson fails to cite to relevant authority or the record or develop an
argument with respect to the issue he attempts to raise on appeal, those
arguments are waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006)
(holding that the defendant’s contention was waived because it was “supported
neither by cogent argument nor citation to authority”); Shane v. State, 716
N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument
on appeal by failing to develop a cogent argument); Smith v. State, 822 N.E.2d
193, 202-203 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised
on appeal where the party fails to develop a cogent argument or provide
adequate citation to authority and portions of the record.”), trans. denied.
[7] To the extent Nelson is arguing that the trial court improperly denied his
motion because he is entitled to credit time, we cannot say that reversal is
warranted. Generally, we review a trial court’s decision on a motion to correct
erroneous sentence only for an abuse of discretion. Fry v. State, 939 N.E.2d
687, 689 (Ind. Ct. App. 2010). 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 4 of 6 [8] An inmate who believes he has been erroneously sentenced may file a motion
to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888
N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 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.
[9] In Robinson v. State, the Indiana Supreme Court noted that a motion to correct
erroneous sentence is available only when the sentence is “erroneous on its
face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court
emphasized that “a motion to correct an erroneous sentence may only arise out
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 27 2017, 10:03 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Damon Nelson Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Angela Sanchez Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Damon Nelson, October 27, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1611-CR-2600 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley Kroh, Appellee-Plaintiff. Magistrate Trial Court Cause Nos. 49G03-0108-FB-172920 49G03-0108-PC-172920
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 1 of 6 [1] Damon Nelson appeals the order of the trial court denying his motion to correct
erroneous sentence. Nelson raises one issue which we revise and restate as
whether the trial court abused its discretion in denying his motion. We affirm.
Facts and Procedural History
[2] On December 19, 2001, the court sentenced Nelson in Cause No. 49G03-0108-
DF-172920 (“Cause No. 920”) to twenty years for aggravated battery as a class
B felony, eight years for battery as a class C felony, and one year for battery as a
class A misdemeanor.
[3] On November 13, 2015, the court sentenced Nelson under cause number
49G14-1401-FD-264 (“Cause No. 264”) to 1020 days for possession of cocaine
or a schedule I or II drug pursuant to a plea agreement and dismissed other
charges. The sentencing order states that he had already served 510 days and
had earned 510 credit days.
[4] On October 19, 2016, Nelson, pro se, filed a motion to correct erroneous
sentence under Cause No. 920 alleging that he was released from the
Department of Correction on May 31, 2013, was rearrested on refiled charges
on January 23, 2014, and remained in custody until December 3, 2015 with a
parole hold, and that the parole warrant was served on January 28, 2014
starting his sentence. He also asserted that he remained in jail for 705 days on a
parole hold and was entitled to credit days. On October 20, 2016, the court
denied Nelson’s motion.
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 2 of 6 Discussion
[5] The issue is whether the trial court abused its discretion in denying Nelson’s
motion to correct erroneous sentence. Nelson argues that he should be
awarded “credit and good days,” that the trial court violated Ind. Code §§ 35-
50-6-3 and 35-50-6-4, and that “those sentences are to run consecutive I was
only credited 510-1020 total days toward the case however I remained in
custody a total of 702-1404 days.” Appellant’s Brief at 7. The State argues that
Nelson waived all of his claims for failure to make a cogent argument. The
State also argues that regardless of waiver, Nelson appears to be arguing that he
should have received more credit days under Cause No. 920 for his
confinement during the pendency of his case in Cause No. 264, that such an
argument requires the trial court to look at matters outside the face of the
judgment, and that the trial court properly denied Nelson’s motion.
[6] We note that although Nelson is proceeding pro se, such litigants are held to the
same standard as trained counsel and are required to follow procedural rules.
Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Nelson
does not cite to the record in his statement of the case, statement of the facts, or
argument, and he does not include a standard of review. See Ind. Appellate
Rule 46(A)(5) (governing the Statement of Case and providing that “[p]age
references to the Record on Appeal or Appendix are required in accordance
with Rule 22(C)”); Ind. Appellate Rule 46(A)(6) (providing that the Statement
of Facts “shall be supported by page references to the Record on Appeal or
Appendix in accordance with Rule 22(C)”); Ind. Appellate Rule 46(A)(8)
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 3 of 6 (providing that “[e]ach contention must be supported by citations to the
authorities, statutes, and the Appendix or parts of the Record on Appeal relied
on, in accordance with Rule 22,” and that “[t]he argument must include for
each issue a concise statement of the applicable standard of review”). To the
extent Nelson fails to cite to relevant authority or the record or develop an
argument with respect to the issue he attempts to raise on appeal, those
arguments are waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006)
(holding that the defendant’s contention was waived because it was “supported
neither by cogent argument nor citation to authority”); Shane v. State, 716
N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument
on appeal by failing to develop a cogent argument); Smith v. State, 822 N.E.2d
193, 202-203 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised
on appeal where the party fails to develop a cogent argument or provide
adequate citation to authority and portions of the record.”), trans. denied.
[7] To the extent Nelson is arguing that the trial court improperly denied his
motion because he is entitled to credit time, we cannot say that reversal is
warranted. Generally, we review a trial court’s decision on a motion to correct
erroneous sentence only for an abuse of discretion. Fry v. State, 939 N.E.2d
687, 689 (Ind. Ct. App. 2010). 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 4 of 6 [8] An inmate who believes he has been erroneously sentenced may file a motion
to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888
N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 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.
[9] In Robinson v. State, the Indiana Supreme Court noted that a motion to correct
erroneous sentence is available only when the sentence is “erroneous on its
face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court
emphasized that “a motion to correct an erroneous sentence may only arise out
of information contained on the formal judgment of conviction . . . .” Neff, 888
N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A motion to correct
erroneous sentence may be only used to correct sentencing errors that are clear
from the face of the judgment imposing the sentence in light of the statutory
authority. Robinson, 805 N.E.2d at 787. Claims that require consideration of
the proceedings before, during, or after trial may not be presented by way of a
motion to correct erroneous sentence. Id. Sentencing claims that are not
facially apparent “may be raised only on direct appeal and, where appropriate,
by post-conviction proceedings.” Id. “Use of the statutory motion to correct
sentence should thus be narrowly confined to claims apparent from the face of
the sentencing judgment, and the ‘facially erroneous’ prerequisite should . . . be
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 5 of 6 strictly applied . . . .” Id. The Court also held that the “sentence” that is subject
to correction under Ind. Code § 35-38-1-15 “means the trial court’s judgment of
conviction imposing the sentence and not the trial court’s entries on the
Department of Correction’s abstract of judgment form.” Id. at 794.
[10] To address the claims that Nelson is entitled to credit would require a
consideration of proceedings before, during, or after his sentencing. Thus, these
arguments are not properly presented by way of a motion to correct erroneous
sentence. We cannot say that the trial court abused its discretion by denying his
motion. See Jackson v. State, 806 N.E.2d 773, 774 (Ind. 2004) (holding that the
trial court properly denied the defendant’s motion to correct erroneous sentence
and noting that a motion to correct erroneous sentence is available only to
correct sentencing errors clear from the face of the judgment).
Conclusion
[11] For the foregoing reasons, we affirm the denial of Nelson’s motion to correct
erroneous sentence.
[12] Affirmed.
Najam, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017 Page 6 of 6