David Newson v. State of Indiana

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Aug 15 2013, 5:41 am any 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:

DAVID NEWSON GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana

MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DAVID NEWSON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1302-CR-81 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marc T. Rothenberg, Judge The Honorable Amy Barbar, Magistrate Cause No. 49G02-9604-PC-48010

August 15, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION BARNES, Judge

2 Case Summary

David Newson appeals the trial court’s denial of his motion to correct erroneous

sentence. We affirm.

Issue

Newson raises one issue, which we restate as whether the trial court properly

denied his motion to correct erroneous sentence.

Facts

On January 8, 1998, the trial court sentenced Newson to consecutive sentences of

sixty-five years for murder and eight years for Class C felony carrying a handgun without

a license for an aggregate sentence of seventy-three years. Newson filed a direct appeal

with the Indiana Supreme Court, and his convictions were affirmed. Newson v. State,

721 N.E.2d 237 (Ind. 1999). Newson then filed a petition for post-conviction relief,

which was denied in 2004. Newson appealed that denial, and this court affirmed the

denial of his petition for post-conviction relief. Newson v. State, No. 49A02-0410-PC-

855 (Ind. Ct. App. Nov. 28, 2005). Our supreme court then denied Newson’s transfer

request.

On December 11, 2012, Newson filed a pro se motion to correct erroneous

sentence, arguing that the trial court erred by imposing enhanced and consecutive

sentences, that the trial court considered an improper aggravator, that his offense was a

single episode of criminal conduct under Indiana Code Section 35-50-1-2, and that the

trial court failed to give proper reasons for his sentence. The trial court found that

Newson’s claims did not involve sentencing errors that were clear from the face of the

3 judgment and that such claims cannot be raised in a motion to correct erroneous sentence.

Consequently, the trial court denied Newson’s motion. Newson then filed a motion to

correct error, which the trial court also denied. Newson now appeals.

Analysis

Newson argues that the trial court erred by denying his motion to correct

erroneous sentence. When reviewing a trial court’s denial of a motion to correct an

erroneous sentence, we defer to the trial court’s factual findings and review such decision

for an abuse of discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An

abuse of discretion will be found only when the trial court’s decision is against the logic

and effect of the facts and circumstances before it. Id. However, the trial court’s legal

conclusions are reviewed under a de novo standard of review. Id.

An inmate who believes he or she has been erroneously sentenced may file a

motion to correct the sentence pursuant to Indiana Code Section 35-38-1-15:

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.

A motion to correct erroneous sentence may be filed only to address a sentence that is

“ʻerroneous on its face.’” Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008) (quoting

Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004)). Other sentencing errors must be

addressed via direct appeal or post-conviction relief. Id. In addition, a motion to correct

4 erroneous sentence may only arise out of information contained on the formal judgment

of conviction, not from the abstract of judgment. Id. If the county does not issue

judgments of conviction, such as in Marion County, then the trial court’s abstract of

judgment will serve as an appropriate substitute for purposes of making the claim. Id.

The State first argues that Newson waived his argument by failing to include the

Marion County abstract of judgment in his appendix. The abstract of judgment is

necessary for this court to consider Newson’s claims because Newson can only raise

claims that are evident on the face of the abstract of judgment. Notwithstanding

Newson’s failure to include the abstract of judgment, we will address his claims based on

the sentencing statement included in the Chronological Case Summary (“CCS”).

Newson argues that: (1) his offenses were part of a single episode of criminal conduct

and, thus, his sentence violated Indiana Code Section 35-50-1-2; (2) the trial court erred

by imposing consecutive sentences; (3) the sentencing statement was insufficient to

support the sentence; and (4) the trial court relied on improper aggravators. Each of these

contentions requires consideration of evidence that is not available on the face of the

abstract of judgment or the CCS’s entry regarding the sentencing. Thus, these arguments

are improper in a motion to correct erroneous sentence. The trial court did not abuse its

discretion when it denied Newson’s motion to correct erroneous sentence.

Conclusion

The trial court properly denied Newson’s motion to correct erroneous sentence.

We affirm.

5 Affirmed.

CRONE, J., and PYLE, J., concur.