George Cunitz v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 20, 2013
• Docket: 35A02-1305-CR-405
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, Nov 20 2013, 10:11 am collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE: GEORGE CUNITZ GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana

CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

GEORGE CUNITZ, ) ) Appellant-Defendant, ) ) vs. ) No. 35A02-1305-CR-405 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE HUNTINGTON CIRCUIT COURT The Honorable Thomas M. Hakes, Judge Cause No. 35C01-9801-CF-6

November 20, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge George Cunitz (“Cunitz”) was convicted in Huntington Circuit Court of two

counts of Class B felony burglary. He was sentenced to an aggregate term of forty years

executed. Cunitz subsequently filed a motion to correct erroneous sentence alleging that

the trial court improperly considered certain aggravating factors when imposing his

sentence. The trial court denied the motion and Cunitz appeals pro se.

We affirm.

Facts and Procedural History

In 1998, Cunitz was charged and convicted of two counts of Class B felony armed

robbery. The trial court sentenced Cunitz to two consecutive terms of twenty years for an

aggregate sentence of forty years executed in the Department of Correction. The trial

court considered several aggravating factors at the sentencing hearing including: 1)

Cunitz’s prior “long and lengthy” criminal history; 2) that Cunitz is in need of

correctional rehabilitative treatment that can be best provided by commitment to a penal

facility; 3) imposition of a reduced sentence or suspension of the sentence would

depreciate the seriousness of the crimes; and 4) Cunitz recently violated the conditions of

his probation and parole. Appellee’s App. p. 3-4.

On March 28, 2013, Cunitz filed a pro se motion to correct erroneous sentence

claiming that his sentence was erroneous because the trial court improperly considered

two aggravating circumstances. The trial court denied his motion, and Cunitz appeals pro

se.

2 Discussion and Decision

Initially, we observe that Cunitz filed his motion to correct erroneous sentence pro

se and has also proceeded pro se on appeal. It is well settled that pro se litigants are held

to the same standard as trained counsel, and must follow all procedural rules. Evans v.

State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004).

A motion to correct an erroneous sentence is governed by Indiana Code section

35-38-1-15, which 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.

“The purpose of the statute is to provide prompt, direct access to an uncomplicated

legal process for correcting the occasional erroneous or illegal sentence.” Robinson v.

State, 805 N.E.2d 783, 785 (Ind. 2004) (citation and internal quotation marks omitted). A

motion to correct erroneous sentence may properly be used only “to correct sentencing

errors that are clear from the face of the judgment imposing the sentence in light of

statutory authority. Claims that require consideration of the proceedings before, during,

or after trial may not be presented by way of a motion to correct sentence.” Id. A motion

to correct erroneous sentence is an improper remedy for any sentencing claims that are

not facially apparent; such claims may be raised only on direct appeal, and by post-

conviction proceedings where appropriate. Id.

3 Cunitz claims that his forty-year sentence is erroneous because the trial court

improperly considered two aggravating circumstances in determining his sentence.

Specifically, Cunitz alleges that because the trial court was not considering a sentence at

or below the presumptive sentence,1 the court improperly considered that Cunitz is in

need of correctional rehabilitative treatment that can be best provided by commitment to

a penal facility and that imposition of a reduced sentence or suspension of the sentence

would depreciate the seriousness of the crimes. This claim cannot be raised in a motion

to correct erroneous sentence because alleged error in the determination of aggravating

factors requires consideration of the sentencing hearing. See Godby v. State, 976 N.E.2d

1235, 1236 (Ind. Ct. App. 2012). Cunitz could have, but failed to raise this claimed error

on direct appeal. His motion to correct erroneous sentence is an improper vehicle to

bring his concerns to the attention of the court.

The sentencing order is not erroneous on its face, and consequently, Cunitz has

sought an improper remedy for his claim. We therefore affirm the trial court’s denial of

his motion to correct erroneous sentence.

Affirmed.

NAJAM, J., and BROWN, J., concur.

1 Cunitz committed his crimes well before the 2005 amendments to our sentencing statutes, which were enacted to resolve the constitutional infirmities presented by the presumptive sentencing scheme that our supreme court identified in Smylie v. State, 823 N.E.2d 679 (Ind. 2005). 4