Edwin D. Calligan v. State of Indiana

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of Jul 23 2012, 9:01 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court, court of appeals and case. tax court

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

EDWIN D. CALLIGAN GREGORY F. ZOELLER Michigan City, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

EDWIN D. CALLIGAN, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1108-CR-400 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy A. Davis, Judge Cause No. 02D04-9901-CF-1

July 23, 2012

MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION

BROWN, Judge Edwin D. Calligan, pro se, petitions for rehearing following our memorandum

decision affirming the trial court’s denial of his motion to correct erroneous sentence.

Calligan raises two issues which we consolidate and restate as whether this court erred in

affirming the trial court’s denial of his motion to correct erroneous sentence. We grant

rehearing and affirm our original decision.

On appeal, Calligan argued that the trial court erred in ordering that his sentences

be served consecutive with each other because there were no aggravating circumstances

specified in the sentencing order. In our initial opinion, we held that we could not say

based upon the court’s sentencing order alone that the trial court did not find any

aggravating circumstances. Calligan v. State, No. 02A03-1108-CR-400, slip op. at 7

(Ind. Ct. App. February 29, 2012). We pointed out that “[t]he Indiana Supreme Court has

held that ‘[t]he approach employed by Indiana appellate courts in reviewing sentences in

non-capital cases is to examine both the written and oral sentencing statements to discern

the findings of the trial court.’” Id. (quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind.

2007)). We held that resolution of the issue raised by Calligan’s motion to correct

erroneous sentence “necessarily requires consideration of factors outside of the face of

the judgment. Specifically, to determine whether the trial court identified an aggravating

circumstance to support the imposition of consecutive sentences, it is necessary to

examine the transcript from the sentencing hearing.” Id. at 7-8. We also noted that the

record did not contain a transcript of the sentencing hearing. Id. at 8 n.2.

In his petition for rehearing, Calligan argues that he was denied a full and fair

review of his appeal after this court held that an appellate court could examine both the

2 written sentencing statement and the oral statements in reviewing a sentence, found that

the record did not contain a transcript of the sentencing hearing when in fact a copy of the

transcript was a part of the record on appeal, and failed to examine the sentencing

transcript. Calligan contends that “[i]f upon rehearing, it is not deemed that the Court

applied the wrong standard of review to Calligan’s claim, he respectfully requests that

this Court, in its decision, clearly and concisely set forth which standard of review it

applied.” Petition for Rehearing at 3.

With respect to the transcript of the sentencing hearing, we observe that while

Calligan’s appendix does not contain such a transcript and the table of contents in his

brief does not indicate that he included a transcript, his appellant’s brief does indeed

include a copy of the transcript of the sentencing hearing. Nevertheless, the inclusion of

such a transcript does not alter the outcome because the transcript does not constitute the

formal judgment of conviction. To the extent that Calligan claims that this court held that

sentencing transcripts could be examined to determine a sentence and then improperly

failed to examine the sentencing transcript, we disagree. This court cited McElroy v.

State, 865 N.E.2d 584, 589 (Ind. 2007), Corbett v. State, 764 N.E.2d 622, 631 (Ind.

2002), and Strong v. State, 538 N.E.2d 924, 929 (Ind. 1989), for the proposition that

appellate courts can examine both a trial court’s written and oral sentencing statements.

Slip op. at 7. However, McElroy, Corbett, and Strong all addressed a direct appeal and

not a motion to correct erroneous sentence. As mentioned in our initial opinion, a motion

to correct erroneous sentence is available only when the sentence is erroneous on its face.

Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). “[A] motion to

3 correct an erroneous sentence may only arise out of information contained on the formal

judgment of conviction . . . .” Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008). 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. See Robinson, 805 N.E.2d

at 787. “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 strictly applied . . . .” Id. Because resolution of the issue

requires consideration of factors outside of the face of the judgment, we cannot say that

the trial court abused its discretion by denying Calligan’s motion to correct erroneous

sentence. Lastly, to the extent that Calligan requests that this court set forth the standard

of review, we observe that our initial opinion stated the standard as follows:

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. Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999).

Slip op. at 4.

For the foregoing reasons, we grant rehearing and reaffirm our previous decision.

MAY, J., and CRONE, J., concur.