Philip Gregory Yeary v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 22, 2012
• Docket: 78A01-1108-CR-388
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this 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:

PHILIP GREGORY YEARY GREGORY F. ZOELLER Greencastle, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana FILED Feb 22 2012, 9:16 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court

PHILIP GREGORY YEARY, ) ) Appellant-Defendant, ) ) vs. ) No. 78A01-1108-CR-388 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE SWITZERLAND CIRCUIT COURT The Honorable Fred H. Hoying, Special Judge Cause No. 78C01-0902-FB-613

February 22, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge Appellant-defendant Philip Yeary appeals the trial court’s denial of his motion to

correct erroneous sentence. Yeary essentially argues the trial court abused its discretion

when it denied his motion to correct erroneous sentence. Concluding that Yeary may not

challenge his sentence through a motion to correct erroneous sentence, we affirm the

judgment of the trial court.

FACTS

Following a jury trial, Yeary was found guilty of nine separate criminal acts,

including criminal confinement, intimidation, pointing a firearm, illegal possession of a

handgun, and criminal recklessness. At the sentencing hearing, the trial court identified

the fact that the offenses were committed in front of children who were under the age of

eighteen years old as an aggravating factor. It also identified Yeary’s lack of a criminal

history and the hardship that imprisonment would cause his children as mitigating

circumstances but determined that those mitigating factors did not warrant a reduced

sentence. Concluding that four of the counts arose from the same episode of criminal

conduct, the trial court merged those counts into a single count of criminal confinement,

as a class B felony, and sentenced Yeary to ten years. Similarly, the trial court found the

five remaining counts were for another episode of criminal conduct, and it merged those

counts into a single count of criminal confinement as a class B felony, and entered a ten-

year sentence for that offense. The trial court ordered that Yeary’s sentences be served

consecutively, for a total of twenty years.

2 On direct appeal, Yeary argued that his sentence was inappropriate in light of his

character and the nature of his offense. Yeary v. State, Cause No. 78A01-0706-CR-

00282 slip op. 23-24 (Ind. Ct. App. March 11, 2008), trans. denied. A panel of this court

found that his sentence was not inappropriate and affirmed. Id.

On July 8, 2011, Yeary filed a motion to correct erroneous sentence alleging that

the sole aggravating circumstance found by the trial court was invalid as a matter of law.

On August 3, 2011, the trial court denied the motion, concluding that a panel of this court

had already decided on direct appeal the issue raised in the motion to correct error.

Yeary now appeals.

DECISION AND DISCUSSION

Yeary argues that the trial court abused its discretion when it denied his motion to

correct erroneous. Specifically, he argues that the trial court considered an inappropriate

factor and should have ordered a lesser sentence.

An inmate may only file a motion to correct erroneous sentence to address a

sentence that is illegal and thus “erroneous on its face.” Robinson v. State. 805 N.E.2d

783, 786 (Ind. 2004)). As for sentencing claims that are not facially apparent, the motion

to correct sentence is an improper remedy. Id. at 787. Thus, Yeary may not challenge

his sentence through a motion to correct erroneous sentence. Moreover, the

appropriateness of Yeary’s sentence was already addressed on direct appeal. Slip op. at

23-24. Thus, Yeary’s motion is barred under the doctrine of res judicata. See Holt v.

3 State, 656 N.E.2d 495, 496 (Ind. Ct. App. 1995) (holding that “issues which have been

raised and adjudicated on direct appeal are res judicata”).

The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.