Jerry Downs v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 23, 2013
• Docket: 27A02-1305-CR-427
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), Sep 23 2013, 5:36 am 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, collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

JERRY DOWNS GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana

JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JERRY DOWNS, ) ) Appellant-Defendant, ) ) vs. ) No. 27A02-1305-CR-427 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE GRANT CIRCUIT COURT The Honorable Mark E. Spitzer, Judge Cause No. 27C01-0304-FB-32

September 23, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge Jerry Downs appeals the denial of his motion to correct erroneous sentence. We

affirm.

In April 2003, the State charged Downs with eight counts: two counts of Class B

felony criminal confinement and one count each of Class B felony possession of a

firearm by a serious violent felon, Class D felony possession of chemical reagents or

precursors with intent to manufacture, Class B felony dealing in

cocaine/methamphetamine, Class D felony maintaining a common nuisance, Class C

felony possession of a machine gun, and Class D felony neglect of a dependent.

In June 2003, the parties entered into a plea agreement in which Downs agreed to

plead guilty to Class B felony criminal confinement (Count 1), Class B felony possession

of a firearm by a serious violent felon (Count 3), Class B felony dealing in

methamphetamine (Count 5), and Class C felony possession of a machine gun (Count 7),

and the State agreed to dismiss the four remaining charges. As to sentencing, the plea

agreement provided for twenty-year sentences with a cap of fifteen years executed on

Counts 1, 3, and 5 and an eight-year sentence with a cap of six years executed on Count

7. It further provided, “Counts 1, 3, and 7 shall run concurrent to each other but it is left

up to the discretion of the Court whether Count 5 runs concurrent or consecutive to

Counts 1, 3, and 7.” Downs v. State, 827 N.E.2d 646, 649 (Ind. Ct. App. 2005), trans.

denied.1 The trial court accepted the plea agreement.

1 Downs explains the terms of his plea agreement in the Appellant’s Brief but fails to include the agreement in the Appellant’s Appendix. We thus rely on the agreement as quoted in a previous appeal in this case. 2 On Counts 1, 3, and 5, the court imposed twenty-year sentences, with fifteen years

executed and five years suspended to probation. On Count 7, the court imposed an eight-

year sentence, with six years executed and two years suspended to probation. Counts 1,

3, and 7 were ordered to be served concurrently, and Count 5 was ordered to be served

consecutive to the other counts. Thus, Downs’s aggregate sentence was forty years, with

thirty years executed followed by ten years of probation.

In April 2013, Downs filed a pro se Motion to Correct Sentence. There, he

claimed his convictions arose out of a single episode of criminal conduct, and thus his

sentence should not have exceeded thirty years, which in 2003 was the presumptive

sentence for a Class A felony. He therefore asked the trial court to correct his sentence to

thirty years, with twenty years executed and ten years suspended to probation. The trial

court denied the motion, and Downs now appeals.

A person who believes he has been erroneously sentenced may file a motion to

correct the sentence pursuant to Indiana Code section 35-38-1-15 (1983):

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 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.” Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004).

3 Downs has failed to include the sentencing order in the Appellant’s Appendix. In

any event, his claim that his convictions arose out of a single episode of criminal conduct

would require consideration of matters presumably outside the face of the sentencing

order and is thus improper in a motion to correct his sentence. See id. (noting strict

application of “‘facially erroneous’ prerequisite”).

Moreover, even if a sentencing error could be discerned from the face of the

judgment, our Supreme Court has observed, “Defendants who plead guilty to achieve

favorable outcomes in the process of bargaining give up a plethora of substantive claims

and procedural rights.” Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001) (determining

appellant waived challenge to sentence on double jeopardy grounds when he entered plea

agreement). Here, Downs struck a favorable bargain where the State agreed to dismiss

four felony charges. The plea agreement also provided that it was the trial court’s

decision whether to impose Count 5’s twenty-year sentence concurrent with or

consecutive to the aggregate twenty-year sentence on the other counts. Downs thus

agreed that his total sentence could be up to forty years. Because he benefited from the

plea agreement authorizing the allegedly illegal sentence, he cannot now complain. See

Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) (appellant not entitled to relief on claim that

consecutive sentences imposed pursuant to plea agreement were illegal and that the

agreement was thus void where he received benefit of having habitual offender allegation

dismissed).

We therefore affirm the trial court’s denial of Downs’s motion to correct

erroneous sentence.

4 NAJAM, J., and BARNES, J., concur.