Kevin M. Barber v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 10, 2014
• Docket: 53A01-1310-CR-464
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jun 10 2014, 9:16 am 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 M. BARBER GREGORY F. ZOELLER New Castle, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

KEVIN M. BARBER, ) ) Appellant-Defendant, ) ) vs. ) No. 53A01-1310-CR-464 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Marc R. Kellams, Judge Cause No. 53C02-1208-FC-788

June 10, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Kevin M. Barber appeals from the denial of his motion to correct erroneous sentence

contending that the trial court erred by denying his motion and that his sentence is

inappropriate. Concluding that Barber failed to establish that his sentence is erroneous on

its face and that he has waived his challenge of the appropriateness of his sentence, we

affirm.

FACTS AND PROCEDURAL HISTORY

Barber pleaded guilty to one count of child molesting as a Class C felony (“Count

I”), one count of performing sexual conduct in the presence of a minor as a Class D felony

(“Count II”), and one count of dissemination of matter harmful to minors as a Class D

felony (“Count III”). The trial court sentenced Barber to eight years imprisonment in the

Indiana Department of Correction for his conviction under Count I, two years suspended

to probation for his conviction under Count II, and two years suspended to probation for

his conviction under Count III. The trial court ordered the sentence for Count I to run

consecutively to Count II and Count III, which were to be served concurrently.

On August 1, 2013, Barber filed a petition for permission to file a belated notice of

appeal. The trial court denied Barber’s petition on August 5, 2013, noting that Barber

“entered pleas of guilty and was sentenced pursuant to a Plea and Sentencing Agreement

and thereby waived his right to appeal.” Appellant’s App. at 12. Barber did not appeal the

trial court’s denial of his petition.

On October 11, 2013, Barber filed a motion to correct erroneous sentence in which

he alleged as follows: 1) he was entitled to relief under Indiana Code section 35-38-1-15;

2) the sentencing court was obligated to correct a sentence for clear facial error; 3) the trial

2 court has a duty to correct erroneous sentences; 4) the trial court sentenced Barber to the

maximum sentence for Count I; 5) the court sentenced Barber to a sentence above the

advisory sentence for Counts II and III; 6) maximum sentences are appropriate for the

worst offenders; and 7) Barber’s crimes were not the worst of the worst and the trial court’s

imposition of a maximum sentence was not warranted given Barber’s character. The trial

court denied Barber’s motion, observing that Barber “signed a plea and sentencing

agreement on November 14, 2012, agreeing to the sentence he received.” Id. at 8. Barber

now appeals.

DISCUSSION AND DECISION

When reviewing a trial court’s decision to deny a motion to correct an erroneous

sentence, we defer to the trial court’s factual findings and review such decision for an abuse

of discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007) (citing Brattain v.

State, 777 N.E.2d 774, 776 (Ind. Ct. App. 2002)). An abuse of discretion will be found

only when the trial court’s decision is against the logic and effect of the facts and

circumstances before it. Id. However, the trial court’s legal conclusions are reviewed

under a de novo standard of review. Id.

Indiana Code section 35-38-1-15 provides as follows:

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 erroneous sentence is an appropriate remedy only when the sentence

is erroneous on its face. Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004). “When claims

3 of sentencing errors require consideration of matters outside the face of the sentencing

judgment, they are best addressed promptly on direct appeal and thereafter via post-

conviction relief proceedings where applicable.” Id. at 787. “Claims that require

consideration of proceedings before, during, or after trial may not be presented by way of

a motion to correct sentence.” Id. However, a motion to correct sentence could be used to

correct errors such as “illegal sentences in violation of express statutory authority or an

erroneous interpretation of a penalty provision of a statute.” Id. at 786.

Here, Barber acknowledges that his sentences for Counts I, II, and III were within

the statutory guidelines. He challenges them nonetheless on grounds implicating Indiana

Appellate Rule 7(B). “[A] request for sentence revision under Appellate Rule (7)(B) is not

truly a claim of sentencing error. Rather, it is a request for [the] court to exercise its

constitutional authority to revise a lawfully entered sentence.” Kimbrough v. State, 979

N.E.2d 625, 630 (Ind. 2012) (quoting Kimbrough v. State, No. 45A04-1106-CR-328, slip

op. at 14 n.3 (Ind. Ct. App. Mar. 21, 2012), Mathias, J. dissenting). The face of Barber’s

sentencing order does not disclose the nature of his offenses or his character, so we would

be unable to review such a claim even if it were properly before us. Barber has failed to

show how his sentence is improper on its face. Since a motion to correct an erroneous

sentence is an improper vehicle by which to present an inappropriateness claim, we

conclude that the trial court did not abuse its discretion by denying Barber’s motion on that

additional ground. By a separate order, we grant the State’s motion to dismiss Barber’s

claims that his sentence is inappropriate. Affirmed.

MAY, J., and BAILEY, J., concur.