Lloyd E. Conn v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 1, 2020
• Docket: 19A-CR-2299
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 01 2020, 8:57 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Lloyd E. Conn Curtis T. Hill, Jr. Branchville, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lloyd E. Conn, May 1, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2299 v. Appeal from the Franklin Circuit Court State of Indiana, The Honorable J. Steven Cox, Appellee-Plaintiff. Judge Trial Court Cause No. 24C01-1001-FA-11

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2299 | May 1, 2020 Page 1 of 5 [1] Lloyd E. Conn, pro se, appeals the Franklin Circuit Court’s denial of his

motion to correct erroneous sentence. Conn presents the issue of whether the

trial court abused its discretion in denying the motion.

[2] We affirm.

Facts and Procedural History [3] Following a jury trial in July 2010, Conn was convicted of Class A felony

conspiracy to commit murder. He was sentenced to forty-five years in the

Department of Correction, with five years suspended to probation. On direct

appeal, Conn argued that the evidence was insufficient to sustain his

conviction; finding the evidence sufficient, this Court affirmed Conn’s

conviction in 2011. Conn v. State, 948 N.E.2d 849 (Ind. Ct. App. 2011).

[4] Conn filed a motion to correct erroneous sentence on August 23, 2019,

challenging the sentencing court’s identification of aggravating and mitigating

circumstances. Aggravating factors identified by the sentencing court included

Conn’s criminal record; his failure to comply with the terms of his probation;

and the fact that the offense for which he was convicted was committed while

he was on probation. Appellant’s App. p. 21. The sentencing court did not

identify mitigating factors. Conn’s motion to correct erroneous sentence was

denied without hearing on August 23, 2019. Appellant’s App. p. 32. Conn now

appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2299 | May 1, 2020 Page 2 of 5 Discussion and Decision [5] We review the denial of a motion to correct erroneous sentence for an abuse of

discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). 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. An inmate who

believes that he has been erroneously sentenced may file a motion to correct an

erroneous sentence, which are designed to provide a prompt and uncomplicated

process to correct sentences. Neff v. State, 888 N.E.2d 1249, 1250–51 (Ind.

2008). 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.

[6] Motions made pursuant to Indiana Code section 35-38-1-15 may only be used

to attack a sentence that is “erroneous on its face.” Robinson v. State, 805 N.E.2d

783, 786 (Ind. 2004). A sentence is defective on its face if it violates express

statutory authority in effect at the time the sentence was pronounced. Woodcox

v. State, 30 N.E.3d 748, 750 (Ind. Ct. App. 2015). When claims of sentencing

errors require consideration of matters outside the face of the sentencing

judgment, the alleged errors may only be attacked by direct appeal or, when

appropriate, by petitions for post-conviction relief. Robinson, 805 N.E.2d at 787.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2299 | May 1, 2020 Page 3 of 5 “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.

[7] Here, Conn argues that the sentencing court improperly considered his criminal

record and his compliance with probation. Appellant’s Br. at 6. The State

argues that Conn’s motion to correct erroneous sentence is not a facial attack

on the sentencing order and, thus, is not permissible under Robinson. We agree.

[8] Conn’s sentence is not facially erroneous: he was sentenced to forty-five years

for his Class A felony conviction for conspiracy to commit murder. At the time

Conn was sentenced, the maximum term for a Class A felony was fifty years,

with an advisory sentence of thirty years. I.C. § 35-50-2-4. Conn has not shown

that his forty-five-year sentence is outside the statutory parameters.

[9] Conn argues that the State improperly relied on aggravating factors in reaching

its sentence and furthermore that its reliance was constitutionally

impermissible.1 But resolution of this argument would require examination of

matters included in Conn’s pre-sentence investigation report, which are outside

the face of the sentencing order. In light of our strict application of the facially

erroneous prerequisite in reviewing the denial of a motion to correct erroneous

1 Conn’s contention that the sentencing court’s decision violated his constitutional rights as set forth in Blakely v. Washington, 542 U.S. 296 (2004) is misplaced. Our supreme court has recognized that the Indiana General Assembly’s elimination of fixed sentencing terms removed the evaluation of sentencing decisions from the scope of Blakely. See Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. And, evaluating such a claim as part of a motion to correct erroneous sentence would require the court to look beyond the face of the judgment, which we will not do. See Fulkrod v. State, 855 N.E.2d 1064, 1067 (Ind. Ct. App. 2006).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2299 | May 1, 2020 Page 4 of 5 sentence, we conclude that this argument is not properly before the court

through Conn’s motion to correct erroneous sentence. See Robinson, 805 N.E.2d

at 787 (“Use of the statutory motion to correct sentence should [] be narrowly

confined to claims apparent from the face of the sentencing judgment, and the

‘facially erroneous’ prerequisite should henceforth be strictly applied[.]”).

Conclusion [10] Accordingly, we hold that the trial court properly denied Conn’s motion to

correct erroneous sentence.

[11] Affirmed.

Riley, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2299 | May 1, 2020 Page 5 of 5