John A. Hawkins v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 25, 2015
• Docket: 49A05-1507-CR-855
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 25 2015, 7:47 am

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 John A. Hawkins Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John A. Hawkins, November 25, 2015 Appellant-Defendant, Court of Appeals Case No. 49A05-1507-CR-855 v. Appeal from the Marion Superior Court Criminal Division 1 State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G01-9708-CF-127418

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-CR-855 | November 25, 2015 Page 1 of 4 Case Summary [1] John A. Hawkins (“Hawkins”), pro se, appeals the trial court’s denial of his

motion to correct error, which challenged the court’s denial of his motion to

correct sentence. He presents the sole issue of whether the trial court erred in

denying his motion to correct sentence, where the motion raised claims of error

that could not be resolved on the face of the sentencing judgment alone. We

affirm.

Facts and Procedural History [2] In 1997, Hawkins was charged with the murder of Rogshan Love. Hawkins v.

State, 748 N.E.2d 362, 363 (Ind. 2001), reh’g denied. Following a jury trial, he

was found guilty of murder and sentenced to the maximum term of sixty-five

years imprisonment. Id. Our supreme court affirmed Hawkins’s conviction

and sentence on direct appeal. Id. at 364. In 2011, the trial court denied

Hawkins’s petition for post-conviction relief, a judgment later affirmed by this

Court in an unpublished decision. See Hawkins v. State, No. 49A04-1108-PC-

424, slip op. at 7 (Ind. Ct. App. Apr. 23, 2012), trans. denied.

[3] On April 27, 2015, Hawkins filed a motion to correct sentence and

memorandum of law in support of the motion. The motion raised federal and

state constitutional claims and challenged the trial court’s identification and

weighing of aggravating and mitigating circumstances. In an order dated May

13, 2015, the trial court denied the motion, finding that Hawkins’s motion

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-CR-855 | November 25, 2015 Page 2 of 4 “simply attempts to re-litigate issues that were addressed on direct appeal

without success.” (App. 24.) Hawkins then filed a motion to correct error on

June 19, 2015,1 which the trial court denied on June 23, 2015. Hawkins now

appeals.

Discussion and Decision [4] Hawkins filed his motion to correct sentence pursuant to 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 Section 35-38-1-15 “‘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) (quoting Gaddie

v. State, 566 N.E.2d 535, 537 (Ind.1991)).

[5] A motion to correct sentence is appropriate only when the sentence is facially

erroneous. Id. Use of the motion is narrowly confined to claims that may be

1 Though file-stamped June 19, 2015, Hawkins’s motion to correct error was dated June 8, 2015.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-CR-855 | November 25, 2015 Page 3 of 4 resolved by considering only the face of the judgment of conviction and the

applicable statutory authority, without reference to other matters in or extrinsic

to the record. Id. at 787-88. A claim of sentencing error that requires

consideration of matters beyond the face of the sentencing judgment may be

raised only on direct appeal or through post-conviction relief proceedings. Id. at

787. A trial court’s ruling on a motion to correct sentence is subject to appeal

by normal appellate procedures. Id. at 786.

[6] Hawkins did not include a copy of the trial court’s judgment of conviction or

abstract of judgment2 in the appendix or with his brief. Accordingly, Hawkins

cannot on this record show that his sentence is facially erroneous. Moreover,

Hawkins’s federal and state constitutional claims, and his contentions that the

trial court improperly identified and weighed aggravating and mitigating

circumstances, require considerations beyond the face of the sentencing

judgment. Such claims may be raised only on direct appeal or through post-

conviction proceedings, not through a statutory motion to correct sentence.

Robinson, 805 N.E.2d at 787.

[7] Affirmed.

Baker, J., and Mathias, J., concur.

2 When a defendant files a motion to correct sentence in a county such as Marion that does not issue judgments of conviction, the abstract of judgment will serve as an appropriate substitute for the judgment of conviction for purposes of making the claim. Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008).

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-CR-855 | November 25, 2015 Page 4 of 4