MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Feb 28 2017, 7:00 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jerry C. Wilson Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jerry C. Wilson, February 28, 2017 Appellant-Defendant, Court of Appeals Case No. 09A02-1609-CR-2147 v. Appeal from the Cass Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Thomas C. Perrone, Special Judge Trial Court Cause No. 09C01-9108-CF-85
Kirsch, Judge.
[1] Jerry C. Wilson (“Wilson”) appeals the denial of his motion to correct
erroneous sentence. He raises several issues, which we consolidate and
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 1 of 7 rephrase as: whether the trial court abused its discretion when it denied his
motion to correct erroneous sentence.
[2] We affirm.
Facts and Procedural History [3] In 1991, the State charged Wilson with two counts of Class A felony attempted
murder and one count of Class C felony possession of explosive or inflammable
substance. After a jury trial in 1992, Wilson was convicted as charged and
sentenced to fifty years for each attempted murder conviction and eight years
for the possession of explosive or inflammable substance conviction, all to run
consecutively, for an aggregate sentence of 108 years. After a direct appeal, a
panel of this court found that Wilson’s conviction for possession of explosive or
inflammable substance violated double jeopardy and vacated that conviction,
but affirmed his convictions and sentences in all other respects. As a result of
his direct appeal, Wilson’s remaining sentence for his two attempted murder
convictions was 100 years. Wilson later filed a petition for post-conviction
relief, which was denied in 2001, and a panel of this court affirmed that denial
on November 16, 2001.
[4] On February 27, 2003, Wilson filed his first motion to correct erroneous
sentence, which was denied, and the denial was affirmed on appeal by this
court. In that appeal, Wilson challenged whether his sentence violated Blakely
v. Washington, 542 U.S. 296 (2004), and this court found that it did not because
Wilson’s direct appeal terminated when transfer was denied in 1993. Wilson v.
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 2 of 7 State, No. 09A05-0602-PC-62 (Ind. Ct. App. Oct. 24, 2006). Therefore, because
Wilson’s case was final before Blakely was decided, Blakely did not have
retroactive application. Id. Wilson also contended that the trial court had
found improper aggravating factors in sentencing him and that his sentence was
manifestly unreasonable; this court held that those issues were not issues
reviewable under a motion to correct erroneous sentence. Id. Wilson
additionally argued that his sentence violated the consecutive sentencing
provisions under Indiana Code section 35-50-1-2, and this court held that
Wilson’s sentence was within the parameters of the statute in effect at the time
of his sentencing, and he was not entitled to the benefit of subsequent
amendments of the statute. Id.
[5] On July 22, 2016, Wilson filed the motion to correct erroneous sentence at issue
in the present case, which is the fifth such motion he has filed. The trial court
denied the motion without a hearing on September 2, 2016. Wilson now
appeals.
Discussion and Decision [6] We review a trial court’s decision on a motion to correct erroneous sentence
only for an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct.
App. 2012). 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. A
motion to correct erroneous sentence is available only when the sentence is
erroneous on its face and may only arise out of information contained on the
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 3 of 7 formal judgment of conviction. Id. A motion to correct erroneous sentence
may only be used to correct sentencing errors that are clear from the face of the
judgment imposing the sentence in light of the statutory authority. Woodcox v.
State, 30 N.E.3d 748, 751 (Ind. Ct. App. 2015). 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. Davis, 978 N.E.2d at 472.
[7] Initially, we note that Wilson has not provided this court with his formal
sentencing judgment from 1992 or his motion to correct erroneous sentence that
was filed with the trial court. An appellant bears the burden of presenting this
court with a record that is complete with respect to the issues raised on appeal.
Eiler v. State, 938 N.E.2d 1235, 1237 n.2 (Ind. Ct. App. 2010). Wilson’s claims
rely on his contention that his sentencing judgment from 1992 was erroneous.
Without the actual formal sentencing judgment, we cannot determine whether
the trial court imposed a sentence that was erroneous on its face, and without
his motion to correct erroneous sentence, we do not know what issues he raised
to the trial court. “[I]t is defendant’s duty to present this [c]ourt with an
adequate record on appeal and when defendant fails to do so, the issue is
deemed waived.” Lee v. State, 694 N.E.2d 719, 722 n.6 (Ind. 1998), cert. denied,
525 U.S. 1023 (1998).
[8] Waiver notwithstanding, we find that the trial court properly denied Wilson’s
motion to correct erroneous sentence. In his brief, Wilson raises the following
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 4 of 7 issues: whether (1) 1994 amendments to Indiana Code section 35-50-1-2 should
apply to his sentence; (2) consecutive sentences were barred by the 1994
amendment of section 35-50-1-2 because his crimes constituted one criminal
act; (3) he should receive retroactive benefit of the revised section 35-50-1-2 and
Indiana cases holding that enhanced and consecutive sentences on multiple
counts of attempted murder are illegal; (4) Indiana Appellate Rule 7(B) is
applicable to Wilson’s case because no evidence supported the imposition of
consecutive sentences; (5) his sentence should be reduced to fifty years due to
the fact that the State had previously offered to do so, but Wilson rejected the
offer; (6) his sentence was invalid because the trial court did not have statutory
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Feb 28 2017, 7:00 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jerry C. Wilson Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jerry C. Wilson, February 28, 2017 Appellant-Defendant, Court of Appeals Case No. 09A02-1609-CR-2147 v. Appeal from the Cass Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Thomas C. Perrone, Special Judge Trial Court Cause No. 09C01-9108-CF-85
Kirsch, Judge.
[1] Jerry C. Wilson (“Wilson”) appeals the denial of his motion to correct
erroneous sentence. He raises several issues, which we consolidate and
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 1 of 7 rephrase as: whether the trial court abused its discretion when it denied his
motion to correct erroneous sentence.
[2] We affirm.
Facts and Procedural History [3] In 1991, the State charged Wilson with two counts of Class A felony attempted
murder and one count of Class C felony possession of explosive or inflammable
substance. After a jury trial in 1992, Wilson was convicted as charged and
sentenced to fifty years for each attempted murder conviction and eight years
for the possession of explosive or inflammable substance conviction, all to run
consecutively, for an aggregate sentence of 108 years. After a direct appeal, a
panel of this court found that Wilson’s conviction for possession of explosive or
inflammable substance violated double jeopardy and vacated that conviction,
but affirmed his convictions and sentences in all other respects. As a result of
his direct appeal, Wilson’s remaining sentence for his two attempted murder
convictions was 100 years. Wilson later filed a petition for post-conviction
relief, which was denied in 2001, and a panel of this court affirmed that denial
on November 16, 2001.
[4] On February 27, 2003, Wilson filed his first motion to correct erroneous
sentence, which was denied, and the denial was affirmed on appeal by this
court. In that appeal, Wilson challenged whether his sentence violated Blakely
v. Washington, 542 U.S. 296 (2004), and this court found that it did not because
Wilson’s direct appeal terminated when transfer was denied in 1993. Wilson v.
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 2 of 7 State, No. 09A05-0602-PC-62 (Ind. Ct. App. Oct. 24, 2006). Therefore, because
Wilson’s case was final before Blakely was decided, Blakely did not have
retroactive application. Id. Wilson also contended that the trial court had
found improper aggravating factors in sentencing him and that his sentence was
manifestly unreasonable; this court held that those issues were not issues
reviewable under a motion to correct erroneous sentence. Id. Wilson
additionally argued that his sentence violated the consecutive sentencing
provisions under Indiana Code section 35-50-1-2, and this court held that
Wilson’s sentence was within the parameters of the statute in effect at the time
of his sentencing, and he was not entitled to the benefit of subsequent
amendments of the statute. Id.
[5] On July 22, 2016, Wilson filed the motion to correct erroneous sentence at issue
in the present case, which is the fifth such motion he has filed. The trial court
denied the motion without a hearing on September 2, 2016. Wilson now
appeals.
Discussion and Decision [6] We review a trial court’s decision on a motion to correct erroneous sentence
only for an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct.
App. 2012). 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. A
motion to correct erroneous sentence is available only when the sentence is
erroneous on its face and may only arise out of information contained on the
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 3 of 7 formal judgment of conviction. Id. A motion to correct erroneous sentence
may only be used to correct sentencing errors that are clear from the face of the
judgment imposing the sentence in light of the statutory authority. Woodcox v.
State, 30 N.E.3d 748, 751 (Ind. Ct. App. 2015). 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. Davis, 978 N.E.2d at 472.
[7] Initially, we note that Wilson has not provided this court with his formal
sentencing judgment from 1992 or his motion to correct erroneous sentence that
was filed with the trial court. An appellant bears the burden of presenting this
court with a record that is complete with respect to the issues raised on appeal.
Eiler v. State, 938 N.E.2d 1235, 1237 n.2 (Ind. Ct. App. 2010). Wilson’s claims
rely on his contention that his sentencing judgment from 1992 was erroneous.
Without the actual formal sentencing judgment, we cannot determine whether
the trial court imposed a sentence that was erroneous on its face, and without
his motion to correct erroneous sentence, we do not know what issues he raised
to the trial court. “[I]t is defendant’s duty to present this [c]ourt with an
adequate record on appeal and when defendant fails to do so, the issue is
deemed waived.” Lee v. State, 694 N.E.2d 719, 722 n.6 (Ind. 1998), cert. denied,
525 U.S. 1023 (1998).
[8] Waiver notwithstanding, we find that the trial court properly denied Wilson’s
motion to correct erroneous sentence. In his brief, Wilson raises the following
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 4 of 7 issues: whether (1) 1994 amendments to Indiana Code section 35-50-1-2 should
apply to his sentence; (2) consecutive sentences were barred by the 1994
amendment of section 35-50-1-2 because his crimes constituted one criminal
act; (3) he should receive retroactive benefit of the revised section 35-50-1-2 and
Indiana cases holding that enhanced and consecutive sentences on multiple
counts of attempted murder are illegal; (4) Indiana Appellate Rule 7(B) is
applicable to Wilson’s case because no evidence supported the imposition of
consecutive sentences; (5) his sentence should be reduced to fifty years due to
the fact that the State had previously offered to do so, but Wilson rejected the
offer; (6) his sentence was invalid because the trial court did not have statutory
authority to impose enhanced and consecutive sentences and the trial court’s
sentencing was not supported by aggravators contained in Indiana Code section
35-50-1-7(b); (7) Wilson’s sentence was improper in light of recent cases that
have held that new substantive rules of criminal procedure and constitutional
law shall have retroactive effect; and (8) his sentence was unreasonable in light
of the fact he was denied a defense expert to test the fingerprint evidence at
trial.
[9] Many of Wilson’s issues, including issues (2), (4), (5), and (6), require
consideration of the proceedings before, during, or after trial and other matters
outside of the face of the sentencing judgment, such as evidentiary facts, a prior
offer by the State for a sentence reduction, and the charging information. These
issues, therefore, fall outside the purview of a motion to correct erroneous
sentence and were not proper to raise in such a motion. See Woodcox, 30
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 5 of 7 N.E.3d at 751 (claims requiring consideration of proceedings before, during, or
after trial may not be presented by way of motion to correct erroneous
sentence).
[10] Further, other issues raised by Wilson in his brief are barred by res judicata.
The doctrine of res judicata bars the litigation of a claim after a final judgment
has been rendered in a prior action involving the same claim between the same
parties or their privies. Love v. State, 22 N.E.3d 663, 664 (Ind. Ct. App. 2014),
trans. denied. The principle behind the doctrine is to prevent repetitive litigation
of the same dispute. Id.
[11] Issues (1), (3), (6), and (7) have been previously litigated in a prior action. Both
issues (1) and (3) are claims that Wilson should have been able to retroactively
benefit from Indiana Code section 35-50-1-2, which was amended in 1994. The
contentions contained within these issues have already been determined in
Wilson’s appeal of the denial of his first motion to correct erroneous sentence
where this court held that Wilson’s sentence was within the parameters of the
statute in effect at the time of his sentencing, and he was not entitled to the
benefit of subsequent amendments of the statute. Wilson v. State, No. 09A05-
0602-PC-62 (Ind. Ct. App. Oct. 24, 2006).
[12] Issues (6) and (7) both bring up the issue of whether the holding of Blakely
should retroactively apply to Wilson’s case. This issue has also previously been
determined in Wilson’s appeal of the denial of his first motion to correct
erroneous sentence. In that appeal, this court found that, because Wilson’s
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 6 of 7 direct appeal terminated when transfer was denied in 1993, Wilson’s case was
final before Blakely was decided, and Blakely did not have retroactive
application. Id. Additionally, to the extent that issue (6) argues that Wilson’s
sentence was excessive and unreasonable, this issue is also res judicata as this
court held that Wilson’s sentence was not manifestly unreasonable in his direct
appeal. Wilson v. State, 611 N.E.2d 160, 166-67 (Ind. Ct. App. 1993), trans.
denied.
[13] As for issue (8), this contention is not appropriate for a motion to correct
erroneous sentence. Issue (8) is essentially a claim that the trial court erred in
not allowing certain evidence to be used during Wilson’s trial. Such a claim is
not appropriate for a motion to correct erroneous sentence because it does not
raise any argument based on the face of the sentencing judgment. A motion to
correct erroneous sentence may only be used to correct sentencing errors that
are clear from the face of the judgment imposing the sentence in light of the
statutory authority. Woodcox, 30 N.E.3d at 751. Based on the above reasons,
we conclude that the trial court did not abuse its discretion when it denied
Wilson’s motion to correct erroneous sentence.
[14] Affirmed.
Robb, J., and Barnes, J., concur
Court of Appeals of Indiana | Memorandum Decision 09A02-1609-CR-2147 | February 28, 2017 Page 7 of 7