Kevin L. Govan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 15, 2017
• Docket: 02A04-1608-CR-1880
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 15 2017, 9:25 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Kevin Govan Curtis T. Hill, Jr. Westville, Indiana Attorney General of Indiana

Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin Govan, May 15, 2017 Appellant-Defendant, Court of Appeals Case No. 02A04-1608-CR-1880 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-0411-FB-196

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017 Page 1 of 5 Case Summary [1] Kevin Govan appeals the denial of his motion to correct erroneous sentence.

Finding no error, we affirm.

Facts and Procedural History [2] In 2005, Govan was convicted of two counts of Class B felony criminal

confinement. The trial court imposed a sentence of forty years, consisting of

consecutive twenty-year terms on each count: fifteen years plus five years under

Indiana Code section 35-50-2-11, which allows for sentence enhancements for

certain offenses (including Class B felony criminal confinement) where a

defendant “used a firearm in the commission of the offense.” In June 2016,

Govan filed a motion to correct erroneous sentence, claiming that the firearm

enhancements are improper. The trial court denied the motion, and Govan

now appeals.

Discussion and Decision [3] Govan contends that the trial court erred when it imposed the firearm

enhancements and that it erred again when it denied his motion to correct

erroneous sentence. A trial court can grant a motion to correct erroneous

sentence only where an error is “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). “Claims that require consideration of the proceedings

Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017 Page 2 of 5 before, during, or after trial may not be presented by way of a motion to correct

sentence.” Id.

[4] Govan challenges his firearm enhancements on two grounds, neither of which

is convincing. First, he argues that the firearm-enhancement statute, Indiana

Code section 35-50-2-11, allows only one enhancement to be imposed in any

given case. The statute allows for the imposition of “an additional fixed term of

imprisonment” on top of the base sentence for certain offenses if the defendant

“used a firearm in the commission of the offense[.]” I.C. § 35-50-2-11. Govan

reads the phrase “an additional fixed term”—singular—to mean that a trial

court cannot impose multiple additional terms—plural—in one case, regardless

of the number of offenses committed or the particular facts of the case. Govan

does not cite any authority that interprets the statute the way he does, and we

are not aware of any. To the contrary, the inclusion of the phrase “commission

of the offense” (emphasis added) in the same provision indicates that the phrase

“an additional fixed term of imprisonment” is simply a general reference to the

enhancement of the sentence imposed for one offense. In other words, the plain

text of the statute does not completely foreclose the imposition of multiple

firearm enhancements when there are multiple offenses.

[5] Of course, the fact that the statute does not absolutely prohibit multiple

enhancements in a single case does not mean that it permits multiple

enhancements whenever a defendant is convicted of multiple enhancement-

eligible crimes. Nor does it mean that multiple enhancements would survive a

constitutional double-jeopardy analysis even if permitted by the bare text of the

Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017 Page 3 of 5 statute. But determining whether multiple enhancements are permissible in a

particular case would require us to know the specific facts of that case, which in

turn would require us to venture beyond the face of the judgment.1 Govan has

not asked us to do that here, recognizing that we cannot do so on a motion to

correct erroneous sentence. See Robinson, 805 N.E.2d at 787; see also Appellant’s

Reply Br. pp. 4-5. The only argument Govan makes is that the text of Section

35-50-2-11 prohibits the imposition of multiple firearm enhancements in any

one case as a matter of law, regardless of the facts. He is incorrect.2

[6] Govan’s second argument is based on the requirement that any enhancement be

sought “on a page separate from the rest of the charging instrument[.]” I.C. §

35-50-2-11. As Govan points out, the Judgment of Conviction indicates that

the two enhancements were sought as “Part 2” of each of the two criminal-

confinement counts. Appellant’s App. Vol. II p. 12. Govan argues that the

State was instead required to charge the enhancements as entirely separate

“counts” against him. Appellant’s Br. p. 9. But the statute does not include

such a requirement. It merely directs the State to seek any firearm

enhancement “on a page separate from the rest of the charging information,”

and Govan does not allege, let alone demonstrate, that the State failed to do so.

1 For example, we would need to know whether the offenses being enhanced were part of a single criminal episode or transaction or instead were separate or unrelated. 2 The General Assembly amended Section 35-50-2-11 while Govan’s original criminal case was pending in 2005 and has amended it several times since, but Govan does not contend that any of the amendments are relevant to our decision.

Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017 Page 4 of 5 [7] Because any error in Govan’s sentence is not “clear from the face of the

judgment,” see Robinson, 805 N.E.2d at 787, the trial court properly denied

Govan’s motion.

[8] Affirmed.

Bailey, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017 Page 5 of 5