Herbert Cox III v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 26, 2016
• Docket: 64A03-1509-CR-1505
• Status: Published

Opinion

FILED Jul 26 2016, 8:32 am MEMORANDUM DECISION CLERK Indiana Supreme Court Court of Appeals Pursuant to Ind. Appellate Rule 65(D), this and Tax Court

Memorandum Decision shall not be regarded as precedent or cited before 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 Herbert Cox III Gregory F. Zoeller Westville, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Herbert Cox III, July 26, 2016 Appellant-Defendant, Court of Appeals Case No. 64A03-1509-CR-1505 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Roger V. Appellee-Plaintiff. Bradford, Judge Trial Court Cause No. 64D01-1208-FC-8140

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016 Page 1 of 5 STATEMENT OF THE CASE

[1] Appellant-Defendant, Herbert Cox (Cox), appeals the trial court’s denial of his

motion to correct erroneous sentence.

[2] We affirm.

ISSUE

[3] Cox raises one issue on appeal, which we restate as: Whether the trial court

improperly denied his motion to correct erroneous sentence.

FACTS AND PROCEDURAL HISTORY

[4] On August 4, 2012, at approximately 4:15 p.m., Cox was driving a black 1997

Chevy Silverado on Old Porter Road in Porter County, Indiana, when an

officer initiated a traffic stop. The officer had observed Cox’s car travelling at

48 mph in a 30 mph posted zone. When the officer ran Cox’s driver’s license

through the Bureau of Motor Vehicles’ database, it reflected that Cox had been

adjudged an Habitual Traffic Violator (HTV) with a lifetime suspension

beginning from August 22, 1996.

[5] On August 9, 2012, the State filed an Information, charging Cox with operating

a motor vehicle while suspended as an HTV, a Class C felony. On June 16,

2014, Cox pled guilty to that offense, and, in exchange, the State agreed to

dismiss another HTV, a Class C felony in a different cause number. In

addition, the plea agreement capped the executed portion of Cox’s sentence at

five years. In the sentencing order dated September 22, 2014, the trial court

Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016 Page 2 of 5 sentenced Cox to four years in the Department of Correction (DOC) pursuant

to the terms of the plea agreement, and it ordered that Cox’s sentence be served

consecutively to his existing sentence in Lake County.

[6] On July 6, 2015, Cox, pro se, filed a motion to correct erroneous sentence

claiming that on February 19, 2013, he was sentenced to seven years for an

HTV offense in Lake County. According to Cox, the imposition of the instant

four-year sentence consecutive to his existing HTV offense in Lake County led

to an illegal sentence. On July 9, 2015, the trial court denied Cox’s motion.

Following the trial court’s denial of his motion, Cox filed a motion to correct

error on August 11, 2015. On August 13, 2015, the trial court denied Cox’s

motion.

[7] Cox now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] Cox claimed that the trial court imposed an illegal consecutive sentence. We

review a ruling on a motion to correct erroneous sentence for an abuse of

discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012). A motion

to correct erroneous sentence may only be used to correct sentencing errors that

are apparent from the face of the sentencing order. Robinson v. State, 805

N.E.2d 783, 787 (Ind. 2004). As a result, claims that require consideration of

the proceedings before, during, or after trial do not warrant relief. Id.

[9] Indiana Code Section 35-50-1-2 grants the trial court discretion to impose

consecutive sentences in certain circumstances. But Indiana Code Section 35-

Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016 Page 3 of 5 50-2-8, which authorizes the imposition of enhanced sentences for habitual

offenders, is “silent on the question of whether courts have the authority to

require habitual offender sentences to run consecutively[.]” Starks v. State, 523

N.E.2d 735, 737 (Ind. 1988). In Starks, our supreme court construed the

consecutive sentencing statute and the habitual offender statute to hold that trial

courts are not authorized to order habitual offender sentences to be served

consecutively. Id. To remedy the erroneous “stacking” of habitual offender

sentences, the court ordered the two habitual offender sentences to be served

concurrently. Id.

[10] Relying on Starks, Cox argues that the only remedy for his erroneous sentence is

to order that his instant sentence is illegal or, in the alternative, order his

sentences to run concurrently. In the present case, the trial court sentenced Cox

to an executed sentence of four years in the DOC for his HTV offense. Also,

the trial court ordered that sentence to run consecutively to his existing sentence

in Lake County. Despite Cox’s claim, the State argues that Cox has simply not

provided an adequate record to determine whether he received an illegal

consecutive sentence. Specifically, the State argues that Cox has not provided

any documents from Lake County showing what charge or charges he faced

there, and whether he received an habitual offender sentence.

[11] A party waives an issue where the party fails to provide adequate citation to

authority and portions of the record. Smith v. State, 822 N.E.2d 193, 202-03

(Ind. Ct. App. 2005), trans. denied; see also Ind. Appellate Rule

46(A)(8) (requiring that contentions in appellant’s brief be supported by cogent

Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016 Page 4 of 5 reasoning and citations to authorities, statutes, and the appendix or parts of the

record on appeal). We agree with the State that Cox has waived this claim by

failing to provide an adequate record to assist in deciding his appeal.

[12] Waiver notwithstanding, Cox’s claim is not one that may be addressed through

a motion to correct erroneous sentence because it requires this court to look

beyond the face of the sentencing judgment. Specifically, it requires a review of

records from Lake County to determine whether Cox received a habitual

offender sentence in that case. Therefore, a motion to correct erroneous

sentence is an improper vehicle for Cox’s claim. Accordingly, the trial court

did not abuse its discretion in denying Cox’s motion.

CONCLUSION

[13] Based on the foregoing, we affirm the trial court’s denial of Cox’s motion to

correct erroneous sentence.

[14] Affirmed.

[15] Kirsch, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016 Page 5 of 5