MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 06 2015, 9:40 am 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 Marshall Barnes-Bey Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marshall Barnes-Bey, March 6, 2015
Appellant-Defendant, Court of Appeals Case No. 45A03-1409-CR-313 v. Appeal from the Lake Superior State of Indiana, Court Honorable Samuel L. Cappas, Judge Appellee-Plaintiff. Case No. 45G04-8810-CF-315
Robb, Judge.
Case Summary and Issue [1] Marshall Barnes-Bey appeals from the denial of his Motion to Correct
Erroneous Sentence, raising one issue for review: whether the trial court
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 1 of 7 abused its discretion in denying his motion to correct erroneous sentence.
Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History [2] In 1988, Barnes-Bey and an accomplice broke into a family home. Barnes-Bey
forced the wife to perform oral sex on him and then raped her, with the children
possibly in view and the husband able to hear. He then stole jewelry, money,
and a shotgun before leaving the house.
[3] Barnes-Bey was charged with Count 1, burglary, a Class B felony; Count 2,
criminal deviate conduct, a Class A felony; and Count 3, rape, a Class A
felony. A jury found him guilty of all three counts. The trial court ordered a
sentence of forty years each for Count 2 and Count 3, to be served concurrently,
and fifteen years for Count 1, to be served consecutively to Counts 2 and 3,
resulting in an aggregate sentence of fifty-five years. Barnes-Bey’s convictions
and sentence were affirmed by this court on direct appeal. See Appendix at 29.
[4] On July 21, 2014, Barnes-Bey filed a Motion to Correct Erroneous Sentence
alleging the trial court lacked statutory authority to impose consecutive
sentences. On July 24, 2014, the trial court denied that motion “for the reason
that a motion to correct erroneous sentence may only be used to attack a
sentence that is invalid on its face. The sentence in this case is not erroneous on
its face.” Id. at 6. Barnes-Bey now appeals the denial of his Motion to Correct
Erroneous Sentence.
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 2 of 7 Discussion and Decision I. Standard of Review [5] A defendant may file a motion to correct erroneous sentence pursuant to
Indiana Code section 35-38-1-15:
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. The purpose of the statute “is to provide prompt, direct access to an
uncomplicated legal process for correcting the occasional erroneous or
illegal sentence.” Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (citation
omitted). It is an appropriate remedy only when the sentencing error is “clear
from the face of the judgment imposing the sentence in light of the statutory
authority.” Id. at 787. “Claims that require consideration of the proceeding
before, during, or after trial may not be presented by way of a motion to correct
sentence,” Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct. App. 2010), trans. denied,
but should be addressed on direct appeal or through post-conviction relief,
Robinson, 805 N.E.2d at 787. A motion to correct erroneous sentence is a
narrow remedy, and a reviewing court will strictly apply the facially erroneous
standard. Id.
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 3 of 7 II. Authority to Impose Consecutive Sentences [6] A trial court must sentence a defendant within statutorily prescribed limits, and
any sentence that is contrary to or violates the penalty mandated by statute is an
illegal sentence subject to correction at any time. Ben-Yisrayl v. State, 908
N.E.2d 1223, 1228 (Ind. Ct. App. 2009), trans. denied. Barnes-Bey claims that
his sentence is erroneous because the trial court exceeded its statutory authority
in ordering him to serve consecutive sentences.
A. Mandatory Consecutive Sentences [7] The trial court’s authority to impose consecutive or concurrent sentences is
found in Indiana Code section 35-50-1-2. Since Barnes-Bey committed his
crimes in 1988, his sentence is governed by the statutes in effect at that time.
Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008). Indiana Code section 35-50-
1-2 stated:
(a) Except as provided in subsection (b), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. (b) If, after being arrested for one (1) crime, a person commits another crime: (1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or (2) while the person is released: (A) upon the person’s own recognizance; or (B) on bond; the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed. Ind. Code § 35-50-1-2 (1988).
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 4 of 7 [8] Barnes-Bey claims Indiana Code section 35-50-1-2(b) precluded the trial court
from ordering consecutive sentences, asserting that he did not meet any of the
prerequisites under subsection (b) at the time of his offenses. Whether he did or
did not meet any of those conditions—and he has not provided a record
sufficient for us to know—Barnes-Bey misreads the statute. Subsection (b) was
merely an exception to the general authority under Indiana Code section 35-50-
1-2(a) for the trial court to determine whether to order sentences to be served
consecutively, not the exclusive means by which a trial court could impose
consecutive sentences. In other words, if the conditions of subsection (b) were
satisfied, the trial court had to impose consecutive sentences; in all other cases,
the trial court could order consecutive sentences.
[9] The statute clearly placed discretion with the trial court to decide whether
sentences for multiple crimes should be served as consecutive or concurrent
terms unless subsection (b) mandated consecutive terms. The trial court had
the authority to impose concurrent or consecutive sentences as long as the
“determination was based upon the consideration of the facts of the specific
crimes, the aggravating and mitigating circumstances involved, and the relation
of the sentence imposed to the objectives which will be served by that
sentence.” Shippen v.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 06 2015, 9:40 am 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 Marshall Barnes-Bey Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marshall Barnes-Bey, March 6, 2015
Appellant-Defendant, Court of Appeals Case No. 45A03-1409-CR-313 v. Appeal from the Lake Superior State of Indiana, Court Honorable Samuel L. Cappas, Judge Appellee-Plaintiff. Case No. 45G04-8810-CF-315
Robb, Judge.
Case Summary and Issue [1] Marshall Barnes-Bey appeals from the denial of his Motion to Correct
Erroneous Sentence, raising one issue for review: whether the trial court
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 1 of 7 abused its discretion in denying his motion to correct erroneous sentence.
Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History [2] In 1988, Barnes-Bey and an accomplice broke into a family home. Barnes-Bey
forced the wife to perform oral sex on him and then raped her, with the children
possibly in view and the husband able to hear. He then stole jewelry, money,
and a shotgun before leaving the house.
[3] Barnes-Bey was charged with Count 1, burglary, a Class B felony; Count 2,
criminal deviate conduct, a Class A felony; and Count 3, rape, a Class A
felony. A jury found him guilty of all three counts. The trial court ordered a
sentence of forty years each for Count 2 and Count 3, to be served concurrently,
and fifteen years for Count 1, to be served consecutively to Counts 2 and 3,
resulting in an aggregate sentence of fifty-five years. Barnes-Bey’s convictions
and sentence were affirmed by this court on direct appeal. See Appendix at 29.
[4] On July 21, 2014, Barnes-Bey filed a Motion to Correct Erroneous Sentence
alleging the trial court lacked statutory authority to impose consecutive
sentences. On July 24, 2014, the trial court denied that motion “for the reason
that a motion to correct erroneous sentence may only be used to attack a
sentence that is invalid on its face. The sentence in this case is not erroneous on
its face.” Id. at 6. Barnes-Bey now appeals the denial of his Motion to Correct
Erroneous Sentence.
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 2 of 7 Discussion and Decision I. Standard of Review [5] A defendant may file a motion to correct erroneous sentence pursuant to
Indiana Code section 35-38-1-15:
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. The purpose of the statute “is to provide prompt, direct access to an
uncomplicated legal process for correcting the occasional erroneous or
illegal sentence.” Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (citation
omitted). It is an appropriate remedy only when the sentencing error is “clear
from the face of the judgment imposing the sentence in light of the statutory
authority.” Id. at 787. “Claims that require consideration of the proceeding
before, during, or after trial may not be presented by way of a motion to correct
sentence,” Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct. App. 2010), trans. denied,
but should be addressed on direct appeal or through post-conviction relief,
Robinson, 805 N.E.2d at 787. A motion to correct erroneous sentence is a
narrow remedy, and a reviewing court will strictly apply the facially erroneous
standard. Id.
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 3 of 7 II. Authority to Impose Consecutive Sentences [6] A trial court must sentence a defendant within statutorily prescribed limits, and
any sentence that is contrary to or violates the penalty mandated by statute is an
illegal sentence subject to correction at any time. Ben-Yisrayl v. State, 908
N.E.2d 1223, 1228 (Ind. Ct. App. 2009), trans. denied. Barnes-Bey claims that
his sentence is erroneous because the trial court exceeded its statutory authority
in ordering him to serve consecutive sentences.
A. Mandatory Consecutive Sentences [7] The trial court’s authority to impose consecutive or concurrent sentences is
found in Indiana Code section 35-50-1-2. Since Barnes-Bey committed his
crimes in 1988, his sentence is governed by the statutes in effect at that time.
Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008). Indiana Code section 35-50-
1-2 stated:
(a) Except as provided in subsection (b), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. (b) If, after being arrested for one (1) crime, a person commits another crime: (1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or (2) while the person is released: (A) upon the person’s own recognizance; or (B) on bond; the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed. Ind. Code § 35-50-1-2 (1988).
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 4 of 7 [8] Barnes-Bey claims Indiana Code section 35-50-1-2(b) precluded the trial court
from ordering consecutive sentences, asserting that he did not meet any of the
prerequisites under subsection (b) at the time of his offenses. Whether he did or
did not meet any of those conditions—and he has not provided a record
sufficient for us to know—Barnes-Bey misreads the statute. Subsection (b) was
merely an exception to the general authority under Indiana Code section 35-50-
1-2(a) for the trial court to determine whether to order sentences to be served
consecutively, not the exclusive means by which a trial court could impose
consecutive sentences. In other words, if the conditions of subsection (b) were
satisfied, the trial court had to impose consecutive sentences; in all other cases,
the trial court could order consecutive sentences.
[9] The statute clearly placed discretion with the trial court to decide whether
sentences for multiple crimes should be served as consecutive or concurrent
terms unless subsection (b) mandated consecutive terms. The trial court had
the authority to impose concurrent or consecutive sentences as long as the
“determination was based upon the consideration of the facts of the specific
crimes, the aggravating and mitigating circumstances involved, and the relation
of the sentence imposed to the objectives which will be served by that
sentence.” Shippen v. State, 477 N.E.2d 903, 905 (Ind. 1985). In reviewing a
motion to correct erroneous sentence, however, we may not look into the
reasons why the trial court imposed consecutive sentences as that would be
looking beyond the face of the judgment. Because Barnes-Bey’s sentence was
within the authority granted to the trial court under Indiana Code section 35-
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 5 of 7 50-1-2(a) to impose consecutive sentences, the judgment is not erroneous on its
face on this basis.
B. Single Episode of Criminal Conduct [10] Barnes-Bey also claims that the court lacked statutory authority to impose
consecutive sentences for his three felony convictions because they all arose
from “a single episode of criminal conduct.” Brief of Appellant at 8.
[11] Although currently, Indiana Code section 35-50-1-2 limits the total of
consecutive sentences in certain instances where multiple crimes arise out of an
episode of criminal conduct, the statute as enacted at the time of Barnes-Bey’s
criminal proceedings did not include any such restriction. The statute was
amended in 1994 “to impose a previously nonexistent limitation on a trial
court’s discretion to impose consecutive sentences.” Jennings vs. State, 687
N.E.2d 621, 622 (Ind. Ct. App. 1997). Since Barnes-Bey was sentenced in
1989, the trial court could not have violated a restriction on consecutive
sentencing that did not exist at the time. Moreover, we note that even if the
limitation did apply, Barnes-Bey was convicted of crimes which are defined as
crimes of violence and are therefore not subject to the limitation. Because the
limitation does not apply to Barnes-Bey, the sentence is not facially erroneous
for this reason.
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 6 of 7 Conclusion [12] The sentence was not clearly erroneous on its face as it was within the trial
court’s discretion to impose consecutive sentences under Indiana Code section
35-50-1-2. The trial court did not abuse its discretion in denying Barnes-Bey’s
motion to correct erroneous sentence.
[13] Affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015 Page 7 of 7