Robert Lee Scott v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 17, 2016
• Docket: 79A02-1510-CR-1799
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 17 2016, 8:59 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court 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 Robert L. Scott Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Lee Scott, March 17, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1510-CR-1799 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams Appellee-Plaintiff. Trial Court Cause No. 79D01-1507-FB-6

Mathias, Judge.

[1] The Tippecanoe Superior Court denied the motion to correct erroneous

sentence filed by Robert Lee Scott (“Scott”). Scott appeals and presents one

issue for our review, which we restate as whether Scott’s sentence is in

Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016 Page 1 of 8 conformity with the restrictions placed on consecutive sentences by Indiana

Code section 35-50-2-1.3. Concluding that Scott’s claim of sentencing error

requires reference to matters outside the record and is therefore not properly

presented in a motion to correct erroneous sentence, we affirm.

Facts and Procedural History

[2] At a bifurcated trial held on October 8 and 9, 2008, Scott was convicted of

Class C felony battery with a deadly weapon, Class D felony pointing a firearm,

Class A misdemeanor resisting law enforcement, and two counts of Class B

felony possession of a firearm by a serious violent felon. The trial court

sentenced Scott as follows: on the Class C felony conviction, eight years; on the

Class D felony conviction, three years; on the Class A misdemeanor conviction,

one year; and on the two Class B felony convictions, twenty years each. The

trial court ordered the sentences on the Class C and D felonies to be served

concurrently to each other but consecutive to the remaining counts. The trial

court also ordered the sentences on the two Class B felonies to be served

concurrently but consecutive to the other counts. Thus, Scott was sentenced to

an aggregate term of twenty-nine years.

[3] On direct appeal, this court affirmed all of Scott’s convictions save the

conviction for Class D felony pointing a firearm, which we reversed due to

instructional error. Scott v. State, 924 N.E.2d 169, 176-77 (Ind. Ct. App. 2010),

trans. denied. This, however, did not affect Scott’s aggregate sentence because

the sentence on this count was concurrent with the sentence on the class C

felony conviction. Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016 Page 2 of 8 [4] On June 19, 2015, Scott filed a motion to correct erroneous sentence. The State

responded to Scott’s motion on July 7, 2015, and the trial court denied Scott’s

motion on October 28, 2015. Scott now appeals.

Discussion and Decision

[5] Scott appeals the denial of his motion to correct erroneous sentence. A

defendant may file a motion to correct erroneous sentence pursuant to Indiana

Code section 35-38-1-15,1 which 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] The purpose of this 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).

A motion to correct erroneous sentence is appropriate 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

1 We refer to the sentencing statutes in effect at the time that Scott committed his crimes. See Robertson v. State, 871 N.E.2d 280, 284 (Ind. 2007) (noting that trial courts sentence a defendant under the sentencing statutes in effect at the time the defendant committed the offense).

Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016 Page 3 of 8 proceedings before, during, or after trial may not be presented by way of a

motion to correct erroneous sentence. Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct.

App. 2010), trans. denied. Such claims should instead 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 requirement of a facially erroneous sentence. Id.

[7] Scott contends that the sentence imposed by the trial court was contrary to the

statutory mandate of Indiana Code section 35-50-2-1.3(c)(1). The version of this

section in effect at the time Scott committed his crimes provided:

(a) For purposes of sections 3 through 7 of this chapter, “advisory sentence” means a guideline sentence that the court may voluntarily consider as the midpoint between the maximum sentence and the minimum sentence. (b) Except as provided in subsection (c), a court is not required to use an advisory sentence. (c) In imposing: (1) consecutive sentences for felony convictions that are not crimes of violence (as defined in IC 35-50-1-2(a)) arising out of an episode of criminal conduct, in accordance with IC 35-50-1-2; (2) an additional fixed term to an habitual offender under section 8 of this chapter; or (3) an additional fixed term to a repeat sexual offender under section 14 of this chapter; a court is required to use the appropriate advisory sentence in imposing a consecutive sentence or an additional fixed term. However, the court is not required to use the advisory sentence in imposing the sentence for the underlying offense.

Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016 Page 4 of 8 (d) This section does not require a court to use an advisory sentence in imposing consecutive sentences for felony convictions that do not arise out of an episode of criminal conduct.

Ind. Code § 35-50-2-1.3 (2007) (emphases added). Scott claims that subsection

1.3(c)(1) is applicable to him and that the trial court was therefore “required to

use the advisory sentence in imposing the sentence for the underlying offense.”

[8] To address Scott’s claim, however, we have to determine at least two things: (1)

whether Scott’s crimes were among the statutorily defined crimes of violence,

and (2) whether his convictions arose out of an episode of criminal conduct.

Scott argues that we can determine from the face of the sentencing order that

none of his convictions were “crimes of violence” as defined by Indiana Code

section 35-50-1-2(a) as it existed at the time of his crimes.

[9] While Scott’s first contention is arguably true, we cannot determine whether

Scott’s crimes arose out of an episode of criminal conduct without looking

outside the face of the sentencing order. The fact that Scott’s crimes were all

charged under one cause number is not dispositive of whether his crimes arose

out of an episode of criminal conduct. In determining whether multiple offenses

constitute one episode of criminal conduct, we must look to the timing of the

offenses and the simultaneous and contemporary nature, if any, of the crimes.

Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (citing Reed v. State, 856

N.E.2d 1189, 1200 (Ind. 2006)). We can obtain additional guidance on the

question by considering whether the alleged conduct was so closely related in

Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016 Page 5 of 8 time, place, and circumstance that a complete account of one charge cannot be

related without referring to the details of the other charge. Id.

[10] We cannot consider any of these factors without looking at the facts and

circumstances underlying Scott’s convictions. In other words, we cannot

conclude from the face of the sentencing order and the relevant statutory

authority that Scott’s sentence is erroneous. Accordingly, a motion to correct

erroneous sentence is not the appropriate vehicle to present Scott’s claims of

sentencing error. See Davis, 937 N.E.2d at 11; Robinson, 805 N.E.2d at 787. For

this reason, the trial court properly denied Scott’s motion to correct erroneous

sentence.

[11] Even if a motion to correct erroneous sentence were the proper vehicle for

Scott’s current claim of sentencing error, he would not prevail, for even if we

assume that his crimes were not crimes of violence and arose out of an episode

of criminal conduct, his sentence is not erroneous.

[12] Scott reads Indiana Code section 35-50-2-1.3(c)(1) to mean that the trial court

was required to impose the advisory sentence if it also chose to sentence him to

consecutive sentences. This argument was rejected by our supreme court in

Robertson v. State, 871 N.E.2d 280 (Ind. 2009). In that case, the court held that

section 35-50-2-1.3 “was not meant to impose additional restrictions on a trial

court’s ability to impose consecutive sentences.” Id. at 285-86. Instead, this

section does no more than “retain the fixed maximum sentences permissible

Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016 Page 6 of 8 under the episode [of criminal conduct] . . . provision[]” of Indiana Code

section 35-50-2-1. Id. at 285.

[13] Thus, as interpreted in Robertson, Indiana Code section 35-50-2-1.3(c) means

that when a court is imposing consecutive sentences under Indiana Code

Section 35-50-2-1, the court must “use” the advisory sentence in determining

the statutory cap placed on consecutive sentences for crimes which are not

crimes of violence and which arise out of an episode of criminal conduct.

Pursuant to Indiana Code section 35-50-2-1(c), the total of such consecutive

sentences “shall not exceed the advisory sentence for a felony which is one (1)

class of felony higher than the most serious of the felonies for which the person

has been convicted.”

[14] Here, the most serious of the felonies for which Scott was convicted was Class

B felony possession of a firearm by a serious violent felon. The class of felony

which is one class higher than this is an A felony, for which the advisory

sentence is thirty years. See Ind. Code § 35-50-2-4. Thus, the total of Scott’s

consecutive sentences could not exceed thirty years. Scott was sentenced to an

aggregate of twenty-nine years, which is one year less than the statutory limit.

Therefore, even if we were to review Scott’s claim of sentencing error on the

merits, his claim would not succeed.

Conclusion

[15] The trial court properly denied Scott’s motion to correct erroneous sentence

because his claim of sentencing error requires consideration of matters outside

Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016 Page 7 of 8 the face of the sentencing order. Furthermore, even if we considered Scott’s

claims on the merits, he would not prevail because his aggregate sentence did

not exceed the advisory sentence for the next highest class of felony.

[16] Affirmed.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016 Page 8 of 8