MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 30 2020, 7:47 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Richard Dodd Curtis T. Hill, Jr. Westville, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Dodd, April 30, 2020 Appellant-Petitioner, Court of Appeals Case No. 18A-CR-3126 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Respondent. Hurley, Judge Trial Court Cause No. 71D08-9712-CF-550
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 1 of 6 [1] Richard Dodd, pro se, appeals the denial of his motion to correct erroneous
sentence in the St. Joseph Superior Court. Dodd presents the issue of whether
the trial court abused its discretion in denying the motion.
[2] We affirm.
Facts and Procedural History [3] Dodd committed the offenses underlying this appeal in December 1997. He was
charged and convicted of Class A felony attempted murder and Class C felony
burglary following a jury trial. Dodd was originally sentenced to the maximum
term of fifty years for attempted murder and the maximum term of eight years
for burglary, to be served consecutively based on the sentencing court’s
identification of multiple aggravating factors. On direct appeal, a panel of this
Court upheld Dodd’s convictions and sentence. Dodd v. State, No. 71A03-9809-
CR-394 (Ind. Ct. App. July 23, 1999), trans. denied.
[4] A subsequent motion to correct erroneous sentence was denied by the trial
court in 2006 and affirmed on appeal. Dodd v. State, No. 71A05-0605-PC-234
(Ind. Ct. App. May 9, 2007). Dodd filed a successive petition for post-
conviction relief, and at the conclusion of a post-conviction relief hearing, the
State conceded that Dodd’s convictions were part of a single episode of criminal
conduct for sentencing purposes under Indiana Code section 35-50-1-2.
Accordingly, the post-conviction court determined that Dodd’s consecutive
sentences exceeded the maximum sentence permitted by statute and remanded
the case for resentencing.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 2 of 6 [5] In November 2013, following a hearing, the resentencing court imposed
consecutive sentences of fifty years for attempted murder and five years for
burglary, the maximum sentence permitted for this episode of criminal conduct.
Dodd appealed, alleging that the resentencing court abused its discretion by
failing to consider mitigating factors. This Court found no abuse of discretion in
Dodd’s resentencing and affirmed his fifty-five-year sentence in 2014. Dodd v.
State, No. 71A03-1312-CR-475 (Ind. Ct. App. July 29, 2014).
[6] Dodd filed a motion to correct erroneous sentence on October 19, 2018,
alleging that his fifty-five-year sentence exceeded the maximum sentence
permitted by statute. The trial court denied Dodd’s motion to correct erroneous
sentence on December 12, 2018, writing in part:
2. In this case, the Defendant does not allege that the sentence itself is erroneous on its face. Instead, Defendant challenges the sentence, arguing that the sentence violates the law because he interprets the law to say that the Court had to sentence him to the advisory sentences for his offenses.
3. The Defendant requests relief that is not appropriate for a Motion to Correct Erroneous Sentence. Furthermore, the Defendant has litigated the issue of his sentence multiple times unsuccessfully. Most recently, the Indiana Court of Appeals found that he waived the issue in his successive Petition for Post- Conviction Relief, although added, via a footnote, the following:
Waiver notwithstanding, Dodd’s claim is without merit because he has failed to meet his burden of showing that [resentencing] counsel rendered deficient performance or that he was prejudiced by counsel’s failure to pursue the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 3 of 6 issue in his resentencing appeal. See Robertson v. State, 871 N.E.2d 280, 285-86 (Ind. 2009) (explaining the application of Indiana Code § 35-50-2-1.3(c) and revealing the lack of merit in Dodd’s argument that the statute required the resentencing court to impose an advisory term for each of his convictions). Richard Dodd v. State of Indiana, Court of Appeals case no. 71-A03-1702-PC-452, pg. 15 fn. 6.
Appellant’s App. p. 9. Dodd now appeals.
Discussion and Decision [7] 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. A defendant 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.
[8] 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
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 4 of 6 783, 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.
“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.
[9] Here, Dodd argues that the trial court abused its discretion in denying his
motion because the resentencing court misinterpreted the applicable sentencing
statute. Appellant’s Br. at 6. The State argues that Dodd’s motion to correct
erroneous sentence is impermissible under Robinson because it is not a facial
attack on the sentencing order, and thus the trial court did not abuse its
discretion in denying his motion. We agree.
[10] Dodd contends that his fifty-five-year sentence was contrary to the statutory
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 30 2020, 7:47 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Richard Dodd Curtis T. Hill, Jr. Westville, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Dodd, April 30, 2020 Appellant-Petitioner, Court of Appeals Case No. 18A-CR-3126 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Respondent. Hurley, Judge Trial Court Cause No. 71D08-9712-CF-550
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 1 of 6 [1] Richard Dodd, pro se, appeals the denial of his motion to correct erroneous
sentence in the St. Joseph Superior Court. Dodd presents the issue of whether
the trial court abused its discretion in denying the motion.
[2] We affirm.
Facts and Procedural History [3] Dodd committed the offenses underlying this appeal in December 1997. He was
charged and convicted of Class A felony attempted murder and Class C felony
burglary following a jury trial. Dodd was originally sentenced to the maximum
term of fifty years for attempted murder and the maximum term of eight years
for burglary, to be served consecutively based on the sentencing court’s
identification of multiple aggravating factors. On direct appeal, a panel of this
Court upheld Dodd’s convictions and sentence. Dodd v. State, No. 71A03-9809-
CR-394 (Ind. Ct. App. July 23, 1999), trans. denied.
[4] A subsequent motion to correct erroneous sentence was denied by the trial
court in 2006 and affirmed on appeal. Dodd v. State, No. 71A05-0605-PC-234
(Ind. Ct. App. May 9, 2007). Dodd filed a successive petition for post-
conviction relief, and at the conclusion of a post-conviction relief hearing, the
State conceded that Dodd’s convictions were part of a single episode of criminal
conduct for sentencing purposes under Indiana Code section 35-50-1-2.
Accordingly, the post-conviction court determined that Dodd’s consecutive
sentences exceeded the maximum sentence permitted by statute and remanded
the case for resentencing.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 2 of 6 [5] In November 2013, following a hearing, the resentencing court imposed
consecutive sentences of fifty years for attempted murder and five years for
burglary, the maximum sentence permitted for this episode of criminal conduct.
Dodd appealed, alleging that the resentencing court abused its discretion by
failing to consider mitigating factors. This Court found no abuse of discretion in
Dodd’s resentencing and affirmed his fifty-five-year sentence in 2014. Dodd v.
State, No. 71A03-1312-CR-475 (Ind. Ct. App. July 29, 2014).
[6] Dodd filed a motion to correct erroneous sentence on October 19, 2018,
alleging that his fifty-five-year sentence exceeded the maximum sentence
permitted by statute. The trial court denied Dodd’s motion to correct erroneous
sentence on December 12, 2018, writing in part:
2. In this case, the Defendant does not allege that the sentence itself is erroneous on its face. Instead, Defendant challenges the sentence, arguing that the sentence violates the law because he interprets the law to say that the Court had to sentence him to the advisory sentences for his offenses.
3. The Defendant requests relief that is not appropriate for a Motion to Correct Erroneous Sentence. Furthermore, the Defendant has litigated the issue of his sentence multiple times unsuccessfully. Most recently, the Indiana Court of Appeals found that he waived the issue in his successive Petition for Post- Conviction Relief, although added, via a footnote, the following:
Waiver notwithstanding, Dodd’s claim is without merit because he has failed to meet his burden of showing that [resentencing] counsel rendered deficient performance or that he was prejudiced by counsel’s failure to pursue the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 3 of 6 issue in his resentencing appeal. See Robertson v. State, 871 N.E.2d 280, 285-86 (Ind. 2009) (explaining the application of Indiana Code § 35-50-2-1.3(c) and revealing the lack of merit in Dodd’s argument that the statute required the resentencing court to impose an advisory term for each of his convictions). Richard Dodd v. State of Indiana, Court of Appeals case no. 71-A03-1702-PC-452, pg. 15 fn. 6.
Appellant’s App. p. 9. Dodd now appeals.
Discussion and Decision [7] 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. A defendant 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.
[8] 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
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 4 of 6 783, 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.
“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.
[9] Here, Dodd argues that the trial court abused its discretion in denying his
motion because the resentencing court misinterpreted the applicable sentencing
statute. Appellant’s Br. at 6. The State argues that Dodd’s motion to correct
erroneous sentence is impermissible under Robinson because it is not a facial
attack on the sentencing order, and thus the trial court did not abuse its
discretion in denying his motion. We agree.
[10] Dodd contends that his fifty-five-year sentence was contrary to the statutory
mandate of Indiana Code section 35-50-2-1.3(c)(1), which identifies the
circumstances under which an advisory sentence must be imposed. Dodd
argues that, under this statute, the resentencing court was required to have
imposed the advisory terms for each of his convictions. Dodd’s statutory
challenge, however, involves his dispute with whether the offenses for which he
was sentenced involved serious bodily injury or arose out of a single episode of
criminal conduct. Appellant’s Br. at 7. Such factors cannot be evaluated
without looking at the facts and circumstances underlying Dodd’s convictions,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 5 of 6 which are beyond the face of the sentence itself and therefore unavailable for
review as part of a motion to correct erroneous sentence. See Davis v. State, 937
N.E.2d 8, 11 n.1 (Ind. Ct. App. 2010), trans. denied (no abuse of discretion
where defendant claimed that two convictions were one episode of criminal
conduct because such claim required “consideration of the evidence presented
at trial and thus definitely falls outside the ‘face of the sentencing judgment.’”)
(quoting Robinson, 805 N.E.2d at 787). Therefore, Dodd is unable to raise this
challenge to his sentence by means of a motion to correct erroneous sentence,
and the trial court did not abuse its discretion in denying the motion.
Conclusion [11] Accordingly, we hold that the trial court properly denied Dodd’s motion to
correct erroneous sentence.
[12] Affirmed.
Riley, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 6 of 6