MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jan 05 2018, 8:05 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE John Chupp Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana
James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Chupp, January 5, 2018
Appellant-Defendant, Court of Appeals Case No. 49A02-1707-CR-1463 v. Appeal from the Marion Superior Court. The Honorable Sheila A. Carlisle, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. CR82-81A
Barteau, Senior Judge
Statement of the Case [1] John Chupp, pro se, appeals the trial court’s denial of his motion to correct
erroneous sentence. We affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 1 of 7 Issue [2] The sole issue Chupp presents (restated) is whether the trial court erred in
denying his motion to correct erroneous sentence.
Facts and Procedural History [3] The underlying facts of this case, taken from our Supreme Court’s decision in
Chupp’s direct appeal, are as follows:
[T]he evidence showed that L.M., a 72-year-old widow, was awakened around 11:30 p.m. on July 10, 1982 by three men who crashed through her bedroom door. They demanded to know where her money was kept, and she told them it was downstairs. One of the men found her purse but it contained only thirty-one dollars. To force her to reveal the location of the rest of her money, one of the men burned her hand with [a] cigarette lighter. L.M. tried to explain that she had just returned from vacation and that [thirty-one] dollars was all she had. One of the men directed the other two to ransack the house. The remaining man raped L.M. and then one of the men sodomized her. The men bound and gagged L.M. and finished searching the house. The victim was not found until noon the following day when her son-in-law discovered her. An ambulance transported her to a hospital where a medical examination revealed that L.M. had suffered bruises, lacerations, blisters, and swelling. She lost her purse with thirty-one dollars, her lock box containing personal papers and silver coins, and her maroon car.
Chupp v. State, 509 N.E.2d 835, 836 (Ind. 1987). Chupp was identified as one of
the perpetrators. Id. at 836-37.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 2 of 7 [4] On July 10, 1982, the State charged Chupp with Class A felony burglary, two
counts of Class A felony rape, two counts of Class A felony criminal deviate
conduct, Class A felony robbery, and Class B felony criminal confinement. See
Chupp v. State, No. 49A05-1206-CR-328, slip op. at 1 (Ind. Ct. App. December
20, 2012), trans. denied. Following a jury trial, on September 24, 1982, Chupp
was found guilty of Class A felony burglary, Class A felony robbery, and Class
B felony criminal confinement. Id.
[5] Additional procedural history follows, as set forth in this Court’s opinion that
affirmed the denial of Chupp’s first motion to correct erroneous sentence:
The trial court sentenced Chupp to concurrent fifty-year sentences for each Class A felony and to twenty years for the Class B felony, to run consecutive to the Class A felonies, for an aggregate sentence of seventy years. After pursuing a direct appeal, Chupp’s convictions and sentences were affirmed by our supreme court. See [Chupp v. State, 509 N.E.2d 835, 840 (Ind. 1987)]. On two separate occasions, Chupp filed a petition for post- conviction relief, each of which was withdrawn without prejudice. On April 24, 2007, Chupp filed a third petition for post-conviction relief, asserting newly discovered evidence and claiming that his sentence was erroneous because the robbery and burglary convictions were enhanced based on the same injuries. The post-conviction court denied his petition. On appeal, we denied most of Chupp’s claims but concluded that the elevation of both the burglary and robbery count to Class A felonies was based on the same injuries and thus violated the principles of double jeopardy. See Chupp v. State, 933 N.E.2d 586, *5 (Ind. Ct. App. 2010) (unpublished opinion). We vacated Chupp’s conviction for robbery as a Class A felony and directed the post- conviction court to enter judgment on the robbery conviction as a
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 3 of 7 Class C felony and to resentence him accordingly. See id. at *10. On January 20, 2011, the trial court modified Chupp’s Class A felony robbery conviction to a Class C felony, vacated the fifty year sentence and imposed an eight year sentence to run concurrent to the fifty year sentence of the Class A burglary conviction, and consecutive to the twenty year sentence for the Class B felony criminal confinement, for an aggregate sentence of seventy years. On June 13, 2012, Chupp filed a motion to correct erroneous sentence, alleging that his conviction for both robbery, a Class C felony, and criminal confinement, a Class B felony, violated the double jeopardy doctrine. The trial court denied Chupp’s motion on the same day.
Chupp, No. 49A05-1206-CR-328, slip op. at 1-2. On December 20, 2012, this
Court affirmed the trial court’s denial of Chupp’s motion to correct erroneous
sentence. Id. at 3.
[6] On August 13, 2014, Chupp filed another motion to correct erroneous sentence,
and a memorandum in support, in which he attempted to challenge the trial
court’s imposition of consecutive terms of imprisonment. See Chupp v. State,
No. 49A02-1408-CR-579, slip op. at 1. (Ind. Ct. App. March 9, 2015). The
trial court denied Chupp’s motion the same day. Id. This Court affirmed the
trial court’s denial of the motion on March 9, 2015. Id.
[7] On June 22, 2017, Chupp filed another motion to correct erroneous sentence,
this time arguing that the sentencing judgment is erroneous on its face because
it does not specify the amount of “good time” credit awarded with regard to
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 4 of 7 pretrial incarceration. See Appellant’s Br. p. 8. The trial court denied the
motion on June 24, 2017. Chupp appeals.
Discussion and Decision [8] Chupp challenges his sentence by way of a motion to correct erroneous
sentence. We review a trial court’s decision on a motion to correct
erroneous sentence for an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689
(Ind. Ct. App. 2010). 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 sentence is available only to correct sentencing
errors clear from the face of the judgment[.]” Robinson v. State, 805 N.E.2d 783,
794 (Ind. 2004).
[9] Chupp claims, essentially, that the trial court failed to comply with Indiana
Code section 35-38-3-2 (1983), which required the trial court’s sentencing
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jan 05 2018, 8:05 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE John Chupp Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana
James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Chupp, January 5, 2018
Appellant-Defendant, Court of Appeals Case No. 49A02-1707-CR-1463 v. Appeal from the Marion Superior Court. The Honorable Sheila A. Carlisle, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. CR82-81A
Barteau, Senior Judge
Statement of the Case [1] John Chupp, pro se, appeals the trial court’s denial of his motion to correct
erroneous sentence. We affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 1 of 7 Issue [2] The sole issue Chupp presents (restated) is whether the trial court erred in
denying his motion to correct erroneous sentence.
Facts and Procedural History [3] The underlying facts of this case, taken from our Supreme Court’s decision in
Chupp’s direct appeal, are as follows:
[T]he evidence showed that L.M., a 72-year-old widow, was awakened around 11:30 p.m. on July 10, 1982 by three men who crashed through her bedroom door. They demanded to know where her money was kept, and she told them it was downstairs. One of the men found her purse but it contained only thirty-one dollars. To force her to reveal the location of the rest of her money, one of the men burned her hand with [a] cigarette lighter. L.M. tried to explain that she had just returned from vacation and that [thirty-one] dollars was all she had. One of the men directed the other two to ransack the house. The remaining man raped L.M. and then one of the men sodomized her. The men bound and gagged L.M. and finished searching the house. The victim was not found until noon the following day when her son-in-law discovered her. An ambulance transported her to a hospital where a medical examination revealed that L.M. had suffered bruises, lacerations, blisters, and swelling. She lost her purse with thirty-one dollars, her lock box containing personal papers and silver coins, and her maroon car.
Chupp v. State, 509 N.E.2d 835, 836 (Ind. 1987). Chupp was identified as one of
the perpetrators. Id. at 836-37.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 2 of 7 [4] On July 10, 1982, the State charged Chupp with Class A felony burglary, two
counts of Class A felony rape, two counts of Class A felony criminal deviate
conduct, Class A felony robbery, and Class B felony criminal confinement. See
Chupp v. State, No. 49A05-1206-CR-328, slip op. at 1 (Ind. Ct. App. December
20, 2012), trans. denied. Following a jury trial, on September 24, 1982, Chupp
was found guilty of Class A felony burglary, Class A felony robbery, and Class
B felony criminal confinement. Id.
[5] Additional procedural history follows, as set forth in this Court’s opinion that
affirmed the denial of Chupp’s first motion to correct erroneous sentence:
The trial court sentenced Chupp to concurrent fifty-year sentences for each Class A felony and to twenty years for the Class B felony, to run consecutive to the Class A felonies, for an aggregate sentence of seventy years. After pursuing a direct appeal, Chupp’s convictions and sentences were affirmed by our supreme court. See [Chupp v. State, 509 N.E.2d 835, 840 (Ind. 1987)]. On two separate occasions, Chupp filed a petition for post- conviction relief, each of which was withdrawn without prejudice. On April 24, 2007, Chupp filed a third petition for post-conviction relief, asserting newly discovered evidence and claiming that his sentence was erroneous because the robbery and burglary convictions were enhanced based on the same injuries. The post-conviction court denied his petition. On appeal, we denied most of Chupp’s claims but concluded that the elevation of both the burglary and robbery count to Class A felonies was based on the same injuries and thus violated the principles of double jeopardy. See Chupp v. State, 933 N.E.2d 586, *5 (Ind. Ct. App. 2010) (unpublished opinion). We vacated Chupp’s conviction for robbery as a Class A felony and directed the post- conviction court to enter judgment on the robbery conviction as a
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 3 of 7 Class C felony and to resentence him accordingly. See id. at *10. On January 20, 2011, the trial court modified Chupp’s Class A felony robbery conviction to a Class C felony, vacated the fifty year sentence and imposed an eight year sentence to run concurrent to the fifty year sentence of the Class A burglary conviction, and consecutive to the twenty year sentence for the Class B felony criminal confinement, for an aggregate sentence of seventy years. On June 13, 2012, Chupp filed a motion to correct erroneous sentence, alleging that his conviction for both robbery, a Class C felony, and criminal confinement, a Class B felony, violated the double jeopardy doctrine. The trial court denied Chupp’s motion on the same day.
Chupp, No. 49A05-1206-CR-328, slip op. at 1-2. On December 20, 2012, this
Court affirmed the trial court’s denial of Chupp’s motion to correct erroneous
sentence. Id. at 3.
[6] On August 13, 2014, Chupp filed another motion to correct erroneous sentence,
and a memorandum in support, in which he attempted to challenge the trial
court’s imposition of consecutive terms of imprisonment. See Chupp v. State,
No. 49A02-1408-CR-579, slip op. at 1. (Ind. Ct. App. March 9, 2015). The
trial court denied Chupp’s motion the same day. Id. This Court affirmed the
trial court’s denial of the motion on March 9, 2015. Id.
[7] On June 22, 2017, Chupp filed another motion to correct erroneous sentence,
this time arguing that the sentencing judgment is erroneous on its face because
it does not specify the amount of “good time” credit awarded with regard to
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 4 of 7 pretrial incarceration. See Appellant’s Br. p. 8. The trial court denied the
motion on June 24, 2017. Chupp appeals.
Discussion and Decision [8] Chupp challenges his sentence by way of a motion to correct erroneous
sentence. We review a trial court’s decision on a motion to correct
erroneous sentence for an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689
(Ind. Ct. App. 2010). 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 sentence is available only to correct sentencing
errors clear from the face of the judgment[.]” Robinson v. State, 805 N.E.2d 783,
794 (Ind. 2004).
[9] Chupp claims, essentially, that the trial court failed to comply with Indiana
Code section 35-38-3-2 (1983), which required the trial court’s sentencing
judgment to include “the amount of credit, including credit time earned, for 1 time spent in confinement before sentencing.” According to Chupp, the
commitment order failed to separately include designation of both time served
and the amount of credit time he earned.
[10] In Robinson, our Supreme Court held:
1 This language previously was codified under Indiana Code section 35-4.1-5-1 (Burns 1982 Supp.) (repealed by P.L. 311-1983, Sec. 49), which related to certification of a judgment of conviction and the sentence as well as the contents of the judgment.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 5 of 7 Sentencing judgments that report only days spent in pre-sentence confinement and fail to expressly designate credit time earned shall be understood by courts and by the Department of Correction automatically to award the number of credit time days equal to the number of pre-sentence confinement days. . . . Because the omission of designation of the statutory credit time entitlement is thus corrected by this presumption, such omission may not be raised as an erroneous sentence.
Robinson, 805 N.E.2d at 792 (footnote omitted).
[11] Here, the trial court’s sentencing judgment, the October 22, 1982 custody of
commitment order, indicated in relevant part that Chupp was to be given
“credit towards service of his sentence for 100 days spent in confinement . . .
and . . . said credit of days [was to] be considered in assessing credit for [good- 2 time] conduct, as provided by law.” Appellant’s Supp. App. Vol. 2, p. 2.
Applying the presumption set forth in Robinson, Chupp’s commitment order
was understood to award him one hundred days credit for time spent in pretrial
confinement plus one hundred days of credit time. His commitment order was,
thus, corrected. The trial court properly denied Chupp’s motion to correct
erroneous sentence.
2 In their respective briefs, both parties cite to an appendix that purports to be at least thirty-one pages in length. However, the only appendix that has been filed in this case is Chupp’s supplemental appendix that is four pages in length.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 6 of 7 Conclusion [12] For the reasons stated, we find that the trial court properly denied Chupp’s
motion to correct erroneous sentence.
[13] Affirmed.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018 Page 7 of 7