MEMORANDUM DECISION Jul 31 2015, 9:38 am Pursuant to Ind. Appellate Rule 65(D), 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 Kenneth George Wolfe Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenneth George Wolfe, July 31, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1504-CR-219 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Judge Appellee-Plaintiff. The Honorable Stanley E. Kroh, Magistrate Cause No. CR85-269C
Kirsch, Judge.
[1] Kenneth George Wolfe filed a motion to correct erroneous sentence,
contending that the sentences for his five attempted murder convictions could
not be served consecutively because the convictions arose from a single episode
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 1 of 8 of criminal conduct pursuant to Indiana Code section 35-50-1-2, and attempted
murder was not, at the time of sentencing, defined as a “crime of violence.”
Wolfe appeals, pro se, contending that the trial court erred in denying his
motion.1
[2] We affirm.
Facts and Procedural History [3] Following a jury trial, Wolfe was convicted of five counts of attempted murder,
each as a Class A felony, and one count of carrying a handgun without a
license, as a Class A misdemeanor, and was adjudicated a habitual offender.
On July 8, 1986, Wolfe received an aggravated sentence of fifty years for each
attempted murder conviction—one of which was enhanced by thirty years
because of his habitual offender status—and a sentence of one year for the
handgun violation, all sentences to be served consecutively. The Indiana
Supreme Court affirmed Wolfe’s convictions and concluded that his 281-year
sentence was not “manifestly unreasonable in light of the nature of the offense
1 Indiana Appellate Rule 46(A)(4) requires that an appellant’s brief contain a statement of issues, which “shall concisely and particularly describe each issue presented for review.” Wolfe has failed to set forth an issue statement; however, we proceed with the understanding that he is appealing the denial of his motion to correct erroneous sentence.
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 2 of 8 and the character of the offender.”2 Wolfe v. State, 562 N.E.2d 414, 417 (Ind.
1990).
[4] On March 4, 2015, Wolfe filed a motion to correct erroneous sentence, arguing:
Counts I through VI were closely connected in time, place and circumstance, constituting a single episode of criminal conduct within the meaning of I.C. 35-50-1-2(b). I.C. 35-50-1-2(c) limits a trial court’s ability to impose consecutive sentences if the convictions are not “crimes of violence” and the convictions arise out of a single “episode of criminal conduct.” If both of these circumstances exist, then the total executed term is limited to the presumptive sentence of the next higher class of felony. Attempted murder was not classified as a crime of violence at the time that Wolfe committed his crimes [in 1985] . . .3 Appellant’s App. at 13 (emphasis in original). At the time of sentencing, the next
highest crime, murder, had a “presumptive” sentence of forty years. 4 Wolfe
argued that “consecutive sentences for Attempted Murder violated the statute
limiting consecutive sentences for crimes not classified as ‘crimes of violence’
which occurred during a ‘single episode of criminal conduct.’” Id. at 15 (emphasis
in original). He maintained that since Indiana Code section 35-50-1-2 limited
his sentence to seventy years—forty for the attempted murder convictions plus a
2 Subsequent to Wolfe’s appeal, the standard for an appellate court’s review of a sentence changed from whether the sentence was manifestly unreasonable to whether the sentence was “inappropriate” in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). 3 It is not clear to which version of Indiana Code section 35-50-1-2 Wolfe is citing; however, it must be a version enacted after July 1, 1995—the date subsection (c) was added to the statute—and before July 1, 2001—the date attempted murder was added as a crime of violence. See Pub. L. No. 304-1995, § 1; Pub. L. No. 228-2001, § 6. 4 The word “presumptive” was changed to “advisory” in April 2005. See Weaver v. State, 845 N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (legislature responded to Blakely v. Washington, 542 U.S. 296(2004) by amending sentencing statutes to replace “presumptive” with “advisory”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 3 of 8 thirty-year enhancement for the habitual offender finding—his sentence of 281
years was erroneous on its face. Id.at 13.
[5] The trial court denied Wolfe’s motion on March 10, 2015, stating:
2. In Robinson v. State, 805 N.E.2d 783, 788 (Ind. 2004), the Indiana Supreme Court determined that “When a motion to correct sentence presents a claim that may be resolved by considering only the face of the judgment and the applicable statutory authority without reference to other matter [sic] such a motion may be expeditiously considered and corrections made without invoking post-conviction proceedings.” However, “[a]s to sentencing claims not facially apparent, the motion to correct sentence is an improper remedy. Such claims may be raised only on direct appeal and, where appropriate, by post-conviction proceedings.” Id. Petitioner has not followed the correct procedural path here. 3. Defendant raises claims that go beyond the face of the sentencing order and judgment; these claims can only be addressed by post- conviction proceedings. If Defendant has previously litigated a PCR to final judgment in this cause he would be required to obtain permission from the Indiana Court of Appeals to file a successive PCR under the Indiana Rules for Post-Conviction Remedies. Id. at 26.
[6] On March 27, 2015, Wolfe filed a motion to correct error regarding the denial
of his motion to correct erroneous sentence. That same day, the trial court
denied Wolfe’s motion to correct error. Id. at 28. Wolfe now appeals.
Discussion and Decision [7] We begin by noting that, technically, this case comes to us as an appeal from
the denial of a motion to correct error following the trial court’s denial of
Wolfe’s motion to correct erroneous sentence. On appeal, however, Wolfe
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 4 of 8 contends that the trial court erred in denying his motion to correct erroneous
sentence. Because we reach the same conclusion regardless of the path, we
follow Wolfe’s lead and address his claim that the trial court erred by denying
his motion to correct erroneous sentence. We review a trial court’s decision 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). An abuse of discretion occurs when
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MEMORANDUM DECISION Jul 31 2015, 9:38 am Pursuant to Ind. Appellate Rule 65(D), 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 Kenneth George Wolfe Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenneth George Wolfe, July 31, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1504-CR-219 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Judge Appellee-Plaintiff. The Honorable Stanley E. Kroh, Magistrate Cause No. CR85-269C
Kirsch, Judge.
[1] Kenneth George Wolfe filed a motion to correct erroneous sentence,
contending that the sentences for his five attempted murder convictions could
not be served consecutively because the convictions arose from a single episode
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 1 of 8 of criminal conduct pursuant to Indiana Code section 35-50-1-2, and attempted
murder was not, at the time of sentencing, defined as a “crime of violence.”
Wolfe appeals, pro se, contending that the trial court erred in denying his
motion.1
[2] We affirm.
Facts and Procedural History [3] Following a jury trial, Wolfe was convicted of five counts of attempted murder,
each as a Class A felony, and one count of carrying a handgun without a
license, as a Class A misdemeanor, and was adjudicated a habitual offender.
On July 8, 1986, Wolfe received an aggravated sentence of fifty years for each
attempted murder conviction—one of which was enhanced by thirty years
because of his habitual offender status—and a sentence of one year for the
handgun violation, all sentences to be served consecutively. The Indiana
Supreme Court affirmed Wolfe’s convictions and concluded that his 281-year
sentence was not “manifestly unreasonable in light of the nature of the offense
1 Indiana Appellate Rule 46(A)(4) requires that an appellant’s brief contain a statement of issues, which “shall concisely and particularly describe each issue presented for review.” Wolfe has failed to set forth an issue statement; however, we proceed with the understanding that he is appealing the denial of his motion to correct erroneous sentence.
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 2 of 8 and the character of the offender.”2 Wolfe v. State, 562 N.E.2d 414, 417 (Ind.
1990).
[4] On March 4, 2015, Wolfe filed a motion to correct erroneous sentence, arguing:
Counts I through VI were closely connected in time, place and circumstance, constituting a single episode of criminal conduct within the meaning of I.C. 35-50-1-2(b). I.C. 35-50-1-2(c) limits a trial court’s ability to impose consecutive sentences if the convictions are not “crimes of violence” and the convictions arise out of a single “episode of criminal conduct.” If both of these circumstances exist, then the total executed term is limited to the presumptive sentence of the next higher class of felony. Attempted murder was not classified as a crime of violence at the time that Wolfe committed his crimes [in 1985] . . .3 Appellant’s App. at 13 (emphasis in original). At the time of sentencing, the next
highest crime, murder, had a “presumptive” sentence of forty years. 4 Wolfe
argued that “consecutive sentences for Attempted Murder violated the statute
limiting consecutive sentences for crimes not classified as ‘crimes of violence’
which occurred during a ‘single episode of criminal conduct.’” Id. at 15 (emphasis
in original). He maintained that since Indiana Code section 35-50-1-2 limited
his sentence to seventy years—forty for the attempted murder convictions plus a
2 Subsequent to Wolfe’s appeal, the standard for an appellate court’s review of a sentence changed from whether the sentence was manifestly unreasonable to whether the sentence was “inappropriate” in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). 3 It is not clear to which version of Indiana Code section 35-50-1-2 Wolfe is citing; however, it must be a version enacted after July 1, 1995—the date subsection (c) was added to the statute—and before July 1, 2001—the date attempted murder was added as a crime of violence. See Pub. L. No. 304-1995, § 1; Pub. L. No. 228-2001, § 6. 4 The word “presumptive” was changed to “advisory” in April 2005. See Weaver v. State, 845 N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (legislature responded to Blakely v. Washington, 542 U.S. 296(2004) by amending sentencing statutes to replace “presumptive” with “advisory”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 3 of 8 thirty-year enhancement for the habitual offender finding—his sentence of 281
years was erroneous on its face. Id.at 13.
[5] The trial court denied Wolfe’s motion on March 10, 2015, stating:
2. In Robinson v. State, 805 N.E.2d 783, 788 (Ind. 2004), the Indiana Supreme Court determined that “When a motion to correct sentence presents a claim that may be resolved by considering only the face of the judgment and the applicable statutory authority without reference to other matter [sic] such a motion may be expeditiously considered and corrections made without invoking post-conviction proceedings.” However, “[a]s to sentencing claims not facially apparent, the motion to correct sentence is an improper remedy. Such claims may be raised only on direct appeal and, where appropriate, by post-conviction proceedings.” Id. Petitioner has not followed the correct procedural path here. 3. Defendant raises claims that go beyond the face of the sentencing order and judgment; these claims can only be addressed by post- conviction proceedings. If Defendant has previously litigated a PCR to final judgment in this cause he would be required to obtain permission from the Indiana Court of Appeals to file a successive PCR under the Indiana Rules for Post-Conviction Remedies. Id. at 26.
[6] On March 27, 2015, Wolfe filed a motion to correct error regarding the denial
of his motion to correct erroneous sentence. That same day, the trial court
denied Wolfe’s motion to correct error. Id. at 28. Wolfe now appeals.
Discussion and Decision [7] We begin by noting that, technically, this case comes to us as an appeal from
the denial of a motion to correct error following the trial court’s denial of
Wolfe’s motion to correct erroneous sentence. On appeal, however, Wolfe
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 4 of 8 contends that the trial court erred in denying his motion to correct erroneous
sentence. Because we reach the same conclusion regardless of the path, we
follow Wolfe’s lead and address his claim that the trial court erred by denying
his motion to correct erroneous sentence. We review a trial court’s decision 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). 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. While we defer to the trial court’s factual
determinations, we review legal conclusions de novo. Woodcox v. State, 30
N.E.3d 748, 750 (Ind. Ct. App. 2015).
[8] Our court has said that it is in the best interests of all concerned that a
sentencing error be immediately discovered and corrected. Id. at 750-51. “In
general, a motion to correct error under Indiana Trial Rule 59 or a direct appeal
are the best options for remedying an erroneous sentence.” Id. at 751.
“Thereafter, a petition for post-conviction relief may be filed on any claims that
have been properly preserved.” Id. However, “Indiana law provides an
alternate remedy to correct an erroneous sentence” pursuant to Indiana Code
section 35-38-1-15, which provides in part that if a “convicted person is
erroneously sentenced, the mistake does not render the sentence void. The
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 5 of 8 sentence shall be corrected after written notice is given to the convicted
person.” Id. (citing I.C. § 35-38-1-15).5
[9] Almost twenty-nine years after he was sentenced, Wolfe filed a motion to
correct erroneous sentence, arguing that a later-enacted version of Indiana Code
section 35-50-1-2 applied to limit his sentence. The trial court denied Wolfe’s
motion to correct erroneous sentence, concluding that his “claims go beyond
the face of the sentencing order,” and, as such, the motion to correct erroneous
sentence was the “improper remedy.” Appellant’s App. at 26 (citing Robinson,
805 N.E.2d at 788). We agree.
[10] While a motion to correct erroneous sentence is available as an alternate
remedy to cure a sentencing error, our Supreme Court has repeatedly cautioned
that such motion is appropriate only when the sentence is “erroneous on its
face.” Robinson, 805 N.E.2d at 786 (citations omitted). “Claims that require
consideration of the proceedings before, during, or after trial may not be
presented by way of a motion to correct sentence.” Id. at 787. Here, to succeed
on his claim, Wolfe had to establish: (1) that the amended statute applied
retroactively; and (2) that from the face of the judgment, it could be determined
5 Indiana Code section 35-38-1-15 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 6 of 8 that his crimes constituted a single episode of criminal conduct. Wolfe
contends that “it is beyond dispute that [his] crimes were closely connected in
time, place and circumstance, constituting a single ‘episode of criminal conduct’”
within the meaning of that statute. Appellant’s App. at 8-9 (emphasis in
original).
[11] Assuming without deciding that Indiana Code section 35-50-1-2, as amended, is
applicable to Wolfe’s sentence, his claim of erroneous sentence still fails for lack
of proof that his crimes constituted a single episode of criminal conduct. “The
term ‘episode of criminal conduct’ means offenses or a connected series of
offenses that are closely related in time, place, and circumstance.” Slone v. State,
11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (quoting Ind. Code § 35-50-1-2(b)).
In determining whether multiple offenses constitute an episode of criminal conduct, the focus is on the timing of the offenses and the simultaneous and contemporaneous nature, if any, of the crimes. Additional guidance on the question can be obtained by considering whether the alleged conduct was so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to the details of the other charge. Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008) (citations omitted)
(internal quotation marks omitted). “Whether certain offenses constitute a
single episode of criminal conduct is a fact-intensive inquiry to be determined
by the trial court.” Slone, 11 N.E.3d at 972 (quoting Schlichter v. State, 779
N.E.2d 1155, 1157 (Ind. 2002) (internal quotation marks omitted). A
determination of whether crimes constitute a single episode of criminal
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 7 of 8 conduct, therefore, cannot be reached without looking beyond the face of the
judgment.
[12] Wolfe’s claim that his crimes constitute a single episode of criminal conduct,
therefore, was not properly presented by way of a motion to correct erroneous
sentence. Accordingly, the trial court did not abuse its discretion by denying
Wolfe’s motion. See Jackson v. State, 806 N.E.2d 773, 774 (Ind. 2004) (holding
that trial court properly denied defendant’s motion to correct erroneous
sentence and noting that motion to correct erroneous sentence is available only
to correct sentencing errors clear from face of the judgment); Bauer v. State, 875
N.E.2d 744, 746 (Ind. Ct. App. 2007) (noting that defendant’s claims required
consideration of matters beyond face of the judgment; accordingly, they are not
claims that can properly be presented in motion to correct erroneous sentence),
trans. denied.
[13] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015 Page 8 of 8