Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Oct 22 2014, 10:26 am 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:
MICHAEL HUFFMAN GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
MICHAEL HUFFMAN, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-1308-CR-731 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-0608-FB-245
October 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Michael Huffman appeals from the trial court’s order denying his motion to correct
erroneous sentence. Concluding that the trial court did not err by denying Huffman’s
request, we affirm.
FACTS AND PROCEDURAL HISTORY
Huffman was charged with aggravated battery as a Class B felony and invasion of
privacy as a Class A misdemeanor in August 2006. Huffman and the State entered into a
plea agreement providing that in exchange for Huffman’s guilty plea the State would agree
that Huffman’s sentence would be left to the trial court’s discretion with a ten-year cap on
any executed portion of the sentence. The trial court held a guilty plea hearing, after which
the plea was taken under advisement. On April 3, 2007, the trial court accepted Huffman’s
guilty plea and sentenced him to a term of eighteen years with eight years suspended to
probation for the aggravated battery conviction and one year for the invasion of privacy
conviction, to be served concurrently in the Department of Correction.
On November 14, 2007, Huffman filed a petition for post-conviction relief, which
was denied by the post-conviction court. We affirmed the post-conviction court’s denial
of relief in a memorandum decision. See Huffman v. State, No. 48A02-1003-PC-421 (Ind.
Ct. App. Feb. 11, 2011).
On June 12, 2013, Huffman filed a motion to correct erroneous sentence, which was
denied by the trial court on the same day. On June 26, 2013, Huffman filed a motion to
correct error from the trial court’s decision. The chronological case summary does not
indicate the disposition of that motion; however, that motion would have been deemed
2 denied by operation of Indiana Trial Rule 53.3(A) on August 12, 2013. On August 8, 2013,
Huffman filed a second motion to correct erroneous sentence, which was denied by the
trial court on August 12, 2013. Huffman filed his notice of appeal on August 23, 2013.
The State filed an emergency verified motion to dismiss the appeal on October 9,
2013. This Court held that motion in abeyance for disposition by the writing panel and
entered an order directing the State to file an appellee’s brief in the matter. Once the matter
was fully briefed with conforming submissions, the matter was transmitted to the writing
panel of this Court for disposition. Huffman now appeals.
DISCUSSION AND DECISION
In each of Huffman’s motions he presented arguments, seeking essentially the same
relief, contesting the trial court’s imposition of restitution as part of his sentence. Because
of the potentially dispositive nature of the State’s motion to dismiss, we address that issue
first.
The State contends that Huffman’s appeal is barred because it was untimely filed,
arguing that Huffman’s motions were repetitive motions and that he failed to appeal from
the first of those motions. The first motion to correct erroneous sentence was filed on June
12, 2013 and was denied that same day. The record does not reflect the disposition of
Huffman’s June 26, 2013, motion to correct error. Nonetheless, Huffman’s motion to
correct error would have been deemed denied on August 12, 2013, and he had thirty days
in which to file his notice of appeal from that ruling. Ind. Trial Rule 53.3(A) (“Any appeal
shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30)
3 days after the Motion to Correct Error is deemed denied.”). Huffman’s notice of appeal
was filed on August 23, 2013.
We agree that in general, repetitive motions do not extend a party’s deadline for
filing a notice of appeal. Ind. Trial Rule 53.4(A). Without determining what impact, if
any, the filing and denial of Huffman’s subsequent motion to correct erroneous sentence
had on the calculation of time for perfecting his appeal, we conclude that Huffman’s notice
of appeal was timely filed after his June 26, 2013, motion to correct error was deemed
denied.
Turning to the merits of Huffman’s appeal, we conclude that his assertion that the
trial court erred by imposing the restitution requirement in the first place, and by failing to
correct that sentencing error upon Huffman’s request, is unpersuasive for a number of
reasons. Part of Huffman’s negotiated plea agreement provided that he waived any right
to challenge his sentence under Indiana Appellate Rule 7(B) or Indiana Code section 35-
38-1-15 (1983) (correction of an erroneous sentence). Appellant’s App. at 200. “[A]
defendant may waive the right to appellate review of his sentence as part of a written plea
agreement.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). “Absent due process concerns
to the contrary, when a defendant explicitly agrees to a particular sentence or a specific
method of imposition of sentences, whether or not the sentence or method is authorized by
the law, he cannot later appeal such sentence on the ground that it is illegal.” Crider v.
State, 984 N.E.2d 618, 625 (Ind. 2013). Thus, it appears that Huffman has explicitly agreed
to waive his right to challenge his sentence through Indiana Appellate Rule 7(B) and
Indiana Code section 35-38-1-15.
4 Additionally, during the sentencing hearing, Huffman expressed his remorse for his
offense and stated that he wished to help the victim with payment of her medical bills,
which totaled more than $200,000. Huffman’s attorney also acknowledged Huffman’s
responsibility to assist the victim of Huffman’s crime with the payment of her medical
bills. Huffman and his counsel agreed to resolve Huffman’s contribution toward
satisfaction of the victim’s medical bills by referring the matter to the local victim offender
reconciliation program. The trial court stated on the record, without objection, that the
matter of restitution would be referred because there was no way to determine Huffman’s
ability to pay and the amount of restitution was not finalized, and solicited other options
from the parties. No other options were presented and there was no challenge made to the
trial court’s decision.
To the extent that Huffman argues that the trial court’s decision to require him to
pay restitution is erroneous, his argument is precluded by the doctrine of invited error.
“Under this doctrine, ‘a party may not take advantage of an error that [he] commits, invites,
or which is the natural consequence of [his] own neglect or misconduct.’” Wright v. State,
828 N.E.2d 904, 907 (Ind.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Oct 22 2014, 10:26 am 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:
MICHAEL HUFFMAN GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
MICHAEL HUFFMAN, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-1308-CR-731 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-0608-FB-245
October 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Michael Huffman appeals from the trial court’s order denying his motion to correct
erroneous sentence. Concluding that the trial court did not err by denying Huffman’s
request, we affirm.
FACTS AND PROCEDURAL HISTORY
Huffman was charged with aggravated battery as a Class B felony and invasion of
privacy as a Class A misdemeanor in August 2006. Huffman and the State entered into a
plea agreement providing that in exchange for Huffman’s guilty plea the State would agree
that Huffman’s sentence would be left to the trial court’s discretion with a ten-year cap on
any executed portion of the sentence. The trial court held a guilty plea hearing, after which
the plea was taken under advisement. On April 3, 2007, the trial court accepted Huffman’s
guilty plea and sentenced him to a term of eighteen years with eight years suspended to
probation for the aggravated battery conviction and one year for the invasion of privacy
conviction, to be served concurrently in the Department of Correction.
On November 14, 2007, Huffman filed a petition for post-conviction relief, which
was denied by the post-conviction court. We affirmed the post-conviction court’s denial
of relief in a memorandum decision. See Huffman v. State, No. 48A02-1003-PC-421 (Ind.
Ct. App. Feb. 11, 2011).
On June 12, 2013, Huffman filed a motion to correct erroneous sentence, which was
denied by the trial court on the same day. On June 26, 2013, Huffman filed a motion to
correct error from the trial court’s decision. The chronological case summary does not
indicate the disposition of that motion; however, that motion would have been deemed
2 denied by operation of Indiana Trial Rule 53.3(A) on August 12, 2013. On August 8, 2013,
Huffman filed a second motion to correct erroneous sentence, which was denied by the
trial court on August 12, 2013. Huffman filed his notice of appeal on August 23, 2013.
The State filed an emergency verified motion to dismiss the appeal on October 9,
2013. This Court held that motion in abeyance for disposition by the writing panel and
entered an order directing the State to file an appellee’s brief in the matter. Once the matter
was fully briefed with conforming submissions, the matter was transmitted to the writing
panel of this Court for disposition. Huffman now appeals.
DISCUSSION AND DECISION
In each of Huffman’s motions he presented arguments, seeking essentially the same
relief, contesting the trial court’s imposition of restitution as part of his sentence. Because
of the potentially dispositive nature of the State’s motion to dismiss, we address that issue
first.
The State contends that Huffman’s appeal is barred because it was untimely filed,
arguing that Huffman’s motions were repetitive motions and that he failed to appeal from
the first of those motions. The first motion to correct erroneous sentence was filed on June
12, 2013 and was denied that same day. The record does not reflect the disposition of
Huffman’s June 26, 2013, motion to correct error. Nonetheless, Huffman’s motion to
correct error would have been deemed denied on August 12, 2013, and he had thirty days
in which to file his notice of appeal from that ruling. Ind. Trial Rule 53.3(A) (“Any appeal
shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30)
3 days after the Motion to Correct Error is deemed denied.”). Huffman’s notice of appeal
was filed on August 23, 2013.
We agree that in general, repetitive motions do not extend a party’s deadline for
filing a notice of appeal. Ind. Trial Rule 53.4(A). Without determining what impact, if
any, the filing and denial of Huffman’s subsequent motion to correct erroneous sentence
had on the calculation of time for perfecting his appeal, we conclude that Huffman’s notice
of appeal was timely filed after his June 26, 2013, motion to correct error was deemed
denied.
Turning to the merits of Huffman’s appeal, we conclude that his assertion that the
trial court erred by imposing the restitution requirement in the first place, and by failing to
correct that sentencing error upon Huffman’s request, is unpersuasive for a number of
reasons. Part of Huffman’s negotiated plea agreement provided that he waived any right
to challenge his sentence under Indiana Appellate Rule 7(B) or Indiana Code section 35-
38-1-15 (1983) (correction of an erroneous sentence). Appellant’s App. at 200. “[A]
defendant may waive the right to appellate review of his sentence as part of a written plea
agreement.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). “Absent due process concerns
to the contrary, when a defendant explicitly agrees to a particular sentence or a specific
method of imposition of sentences, whether or not the sentence or method is authorized by
the law, he cannot later appeal such sentence on the ground that it is illegal.” Crider v.
State, 984 N.E.2d 618, 625 (Ind. 2013). Thus, it appears that Huffman has explicitly agreed
to waive his right to challenge his sentence through Indiana Appellate Rule 7(B) and
Indiana Code section 35-38-1-15.
4 Additionally, during the sentencing hearing, Huffman expressed his remorse for his
offense and stated that he wished to help the victim with payment of her medical bills,
which totaled more than $200,000. Huffman’s attorney also acknowledged Huffman’s
responsibility to assist the victim of Huffman’s crime with the payment of her medical
bills. Huffman and his counsel agreed to resolve Huffman’s contribution toward
satisfaction of the victim’s medical bills by referring the matter to the local victim offender
reconciliation program. The trial court stated on the record, without objection, that the
matter of restitution would be referred because there was no way to determine Huffman’s
ability to pay and the amount of restitution was not finalized, and solicited other options
from the parties. No other options were presented and there was no challenge made to the
trial court’s decision.
To the extent that Huffman argues that the trial court’s decision to require him to
pay restitution is erroneous, his argument is precluded by the doctrine of invited error.
“Under this doctrine, ‘a party may not take advantage of an error that [he] commits, invites,
or which is the natural consequence of [his] own neglect or misconduct.’” Wright v. State,
828 N.E.2d 904, 907 (Ind. 2005). After voluntarily offering and agreeing to help the victim
by paying restitution for her medical bills and agreeing with the trial court’s disposition,
Huffman may not now take advantage of that error, if any, on appeal to achieve a
reversal.
Furthermore, “[a] petition for post-conviction relief, not use of a motion to correct
erroneous sentence, is the preferred procedure for presenting a sentencing error.” Funk v.
State, 714 N.E.2d 746, 748-49 (Ind. Ct. App. 1999). “[A] motion to correct erroneous
5 sentence may be used to correct those errors ‘where the sentence is erroneous on its face.’”
Id. at 749. “A facially defective sentence is one ‘that violates express statutory authority
at the time the sentence is pronounced.’” Id. (emphasis in original).
Huffman argues that the sentencing order is facially defective because it includes an
award of restitution even though the plea agreement was silent on that matter. He claims
that the trial court should have granted his motion to correct erroneous sentence in
acknowledgement that the trial court was bound by the terms of the plea agreement. As
previously noted, Huffman waived his right to pursue a motion to correct erroneous
sentence. Nonetheless, this argument could have been, but was not, presented for review
in Huffman’s petition for post-conviction relief. Because the issue was available to
Huffman at the time of his petition for post-conviction relief, but he failed to raise it, the
issue is waived. P-C.R. 1, §8.
Further, the plea agreement stated that “[a]t the time of sentencing, the Defendant’s
sentence will be left to the discretion of the trial court, except for a ten (10) year cap on
any executed portion.” Appellant’s App. at 199. The trial court complied with the terms
of the plea agreement by imposing a ten-year executed sentence followed by a period of
probation. “[A] trial court may order restitution as part of a defendant’s sentence wholly
apart from probation.” Edsall v. State, 983 N.E.2d 200, 208 (Ind. Ct. App. 2013) (quoting
Pearson v. State, 883 N.E.2d 770, 772-73 (Ind. 2008)). “When restitution is ordered as
part of an executed sentence, an inquiry into the defendant’s ability to pay is not required.”
Id. “Generally, an order of restitution is within the trial court’s discretion, and it will be
reversed only upon a finding of an abuse of that discretion.” Id. The trial court’s
6 imposition of a restitution obligation as part of Huffman’s sentence does not violate the
terms of Huffman’s plea agreement.
After serving the executed portion of his sentence, Huffman began serving the
probationary term of his sentence. Huffman was told on numerous occasions that he
needed to begin making payments toward his restitution obligation. The local victim
offender reconciliation program dissolved, but those duties were fulfilled by the Madison
County Probation Department. That department determined the amount of Huffman’s
obligation. Huffman’s probation was revoked and part of his suspended sentence was
ordered to be served because Huffman failed to make regular restitution payments, having
made only one payment of $20. Huffman admitted that he was aware of his obligation and
did not make regular payments despite being employed such that he received a modest tax
refund. We conclude that Huffman has not established grounds for reversal.
CONCLUSION
In light of the foregoing, we affirm the trial court’s decision.
Affirmed.
FRIEDLANDER, J., and BROWN, J., concur.