FILED Jan 11 2024, 8:58 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Sam Collins Theodore E. Rokita Greencastle, Indiana Indiana Attorney General
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Sam Collins, January 11, 2024 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1808 v. Appeal from the Greene Circuit Court State of Indiana, The Honorable Erik C. Allen, Appellee-Plaintiff Judge Trial Court Cause No. 28C01-0208-FB-110
Opinion by Chief Judge Altice Judges Weissmann and Kenworthy concur.
Altice, Chief Judge.
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 1 of 7 Case Summary [1] Sam C. Collins, pro se, appeals the trial court’s partial denial of his motion to
correct sentence. Because the sentencing error at issue is apparent on the face
of the sentencing judgment, Collins is entitled to a prompt correction of his
sentence.
[2] We reverse and remand.
Facts & Procedural History [3] In bifurcated jury trials, Collins was found guilty of Class B felony unlawful
possession of a firearm by a serious violent felon (SVF), Class B felony
burglary, and Class D felony theft and was determined to be a habitual
offender. Thereafter, on November 26, 2002, the trial court sentenced him to
ten years on the SVF conviction, twenty years on the burglary conviction, and
three years on the theft conviction. The court enhanced both the theft and
burglary sentences by twenty years based on the habitual offender adjudication
and ordered the burglary and SVF sentences to be served consecutive to each
other and concurrent with the theft sentence, resulting in an aggregate sentence
of fifty years in the Indiana Department of Correction.
[4] The trial court’s sentencing judgment listed Collins’s prior criminal history,
which included several misdemeanor offenses and only two felony offenses.
These two felony offenses – a 1990 Class D felony OWI and a 1995 Class B
felony robbery – served as the predicate offenses for the habitual offender
adjudication, and the SVF determination was based on the robbery.
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 2 of 7 [5] On direct appeal, Collins argued, among other things, that the habitual offender
enhancement was improper because his prior robbery conviction was used to
establish that he was both a SVF and a habitual offender. Relying on Anderson
v. State, 774 N.E.2d 906 (Ind. Ct. App. 2002), this court found no error as the
habitual offender enhancement was not applied to the SVF sentence. We
affirmed Collins’s convictions and sentence in a memorandum decision issued
in November 2003. Collins v. State, No. 28A04-0301-CR-38 (Ind. Ct. App.
November 25, 2003), trans. denied. Then, in 2007, Collins pursued an
unsuccessful petition for post-conviction relief, the denial of which was affirmed
on appeal. See Collins v. State, No. 28A04-0603-PC-212 (Ind. Ct. App. August
23, 2007), trans. denied.
[6] In April 2023, Collins, pro se, filed a verified motion to correct sentence, which
he subsequently amended. As amended, Collins’s motion alleged two
sentencing errors: (1) he was subjected to an impermissible double enhancement
as set out in Sweatt v. State, 887 N.E.2d 81 (Ind. 2008) and (2) the trial court
improperly attached the habitual offender enhancement to two counts. Collins
provided extensive briefing in support of his motion.
[7] On July 25, 2023, the trial court granted Collins’s motion in part and denied it
in part. The court corrected the original sentencing order by assigning the
habitual offender enhancement to only the burglary count. But it found that
Collins’s other claim of error was not facially apparent on the sentencing
judgment and thus would need to be brought through a successive petition for
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 3 of 7 post-conviction relief. Collins now appeals this partial denial of his motion to
correct sentence.
Discussion & Decision [8] Collins filed his motion to correct sentence pursuant to Indiana Code § 35-38-1-
15, 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.
This statutory remedy is intended to “provide prompt, direct access to an
uncomplicated legal process for correcting the occasional erroneous or illegal
sentence” and is available only where a sentence is erroneous on its face.
Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (internal quotations omitted).
Yet where a claimed sentencing error is not facially apparent – “clear from the
face of the judgment imposing the sentence in light of the statutory authority” –
it may be raised only via direct appeal or, where appropriate, post-conviction
relief. Id. at 787. In other words, “[c]laims 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, Collins argues that his sentence constituted an impermissible double
enhancement that was clear on the face of the sentencing judgment. His claim
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 4 of 7 is based on the Supreme Court’s holding in Sweatt, which was issued in 2008
after Collins’s direct and post-conviction appeals were final. The Supreme
Court recognized that using the same prior felony conviction as the basis for a
SVF count and as grounds for a habitual offender finding does not itself create a
double enhancement if the habitual offender enhancement is attached to some
offense other than the SVF. Sweatt, 887 N.E.2d at 84. But the Court held that
an impermissible double enhancement does arise where the two offenses are
ordered to be served consecutively. Id. (“In a case where separate counts are
enhanced based on the same prior felony conviction, ordering the sentences to
run consecutively has the same effect as if the enhancements both applied to the
same count.”). This is precisely what happened here – Collins’s 1995 robbery
conviction was used for the SVF count and as a predicate offense for the
habitual offender enhancement to his burglary count and the SVF and burglary
sentences were ordered to be served consecutively.
[10] The State contends that Collins’s double enhancement claim requires
examination of matters beyond the face of the sentencing judgment. We do not
agree. While such a claim might often require reference to other matters in or
extrinsic to the record, such is not the case here where the trial court’s order
contains a list of Collins’s criminal history, which shows only two prior felony
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 5 of 7 convictions. Accordingly, we need look no further than the order to determine
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FILED Jan 11 2024, 8:58 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Sam Collins Theodore E. Rokita Greencastle, Indiana Indiana Attorney General
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Sam Collins, January 11, 2024 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1808 v. Appeal from the Greene Circuit Court State of Indiana, The Honorable Erik C. Allen, Appellee-Plaintiff Judge Trial Court Cause No. 28C01-0208-FB-110
Opinion by Chief Judge Altice Judges Weissmann and Kenworthy concur.
Altice, Chief Judge.
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 1 of 7 Case Summary [1] Sam C. Collins, pro se, appeals the trial court’s partial denial of his motion to
correct sentence. Because the sentencing error at issue is apparent on the face
of the sentencing judgment, Collins is entitled to a prompt correction of his
sentence.
[2] We reverse and remand.
Facts & Procedural History [3] In bifurcated jury trials, Collins was found guilty of Class B felony unlawful
possession of a firearm by a serious violent felon (SVF), Class B felony
burglary, and Class D felony theft and was determined to be a habitual
offender. Thereafter, on November 26, 2002, the trial court sentenced him to
ten years on the SVF conviction, twenty years on the burglary conviction, and
three years on the theft conviction. The court enhanced both the theft and
burglary sentences by twenty years based on the habitual offender adjudication
and ordered the burglary and SVF sentences to be served consecutive to each
other and concurrent with the theft sentence, resulting in an aggregate sentence
of fifty years in the Indiana Department of Correction.
[4] The trial court’s sentencing judgment listed Collins’s prior criminal history,
which included several misdemeanor offenses and only two felony offenses.
These two felony offenses – a 1990 Class D felony OWI and a 1995 Class B
felony robbery – served as the predicate offenses for the habitual offender
adjudication, and the SVF determination was based on the robbery.
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 2 of 7 [5] On direct appeal, Collins argued, among other things, that the habitual offender
enhancement was improper because his prior robbery conviction was used to
establish that he was both a SVF and a habitual offender. Relying on Anderson
v. State, 774 N.E.2d 906 (Ind. Ct. App. 2002), this court found no error as the
habitual offender enhancement was not applied to the SVF sentence. We
affirmed Collins’s convictions and sentence in a memorandum decision issued
in November 2003. Collins v. State, No. 28A04-0301-CR-38 (Ind. Ct. App.
November 25, 2003), trans. denied. Then, in 2007, Collins pursued an
unsuccessful petition for post-conviction relief, the denial of which was affirmed
on appeal. See Collins v. State, No. 28A04-0603-PC-212 (Ind. Ct. App. August
23, 2007), trans. denied.
[6] In April 2023, Collins, pro se, filed a verified motion to correct sentence, which
he subsequently amended. As amended, Collins’s motion alleged two
sentencing errors: (1) he was subjected to an impermissible double enhancement
as set out in Sweatt v. State, 887 N.E.2d 81 (Ind. 2008) and (2) the trial court
improperly attached the habitual offender enhancement to two counts. Collins
provided extensive briefing in support of his motion.
[7] On July 25, 2023, the trial court granted Collins’s motion in part and denied it
in part. The court corrected the original sentencing order by assigning the
habitual offender enhancement to only the burglary count. But it found that
Collins’s other claim of error was not facially apparent on the sentencing
judgment and thus would need to be brought through a successive petition for
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 3 of 7 post-conviction relief. Collins now appeals this partial denial of his motion to
correct sentence.
Discussion & Decision [8] Collins filed his motion to correct sentence pursuant to Indiana Code § 35-38-1-
15, 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.
This statutory remedy is intended to “provide prompt, direct access to an
uncomplicated legal process for correcting the occasional erroneous or illegal
sentence” and is available only where a sentence is erroneous on its face.
Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (internal quotations omitted).
Yet where a claimed sentencing error is not facially apparent – “clear from the
face of the judgment imposing the sentence in light of the statutory authority” –
it may be raised only via direct appeal or, where appropriate, post-conviction
relief. Id. at 787. In other words, “[c]laims 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, Collins argues that his sentence constituted an impermissible double
enhancement that was clear on the face of the sentencing judgment. His claim
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 4 of 7 is based on the Supreme Court’s holding in Sweatt, which was issued in 2008
after Collins’s direct and post-conviction appeals were final. The Supreme
Court recognized that using the same prior felony conviction as the basis for a
SVF count and as grounds for a habitual offender finding does not itself create a
double enhancement if the habitual offender enhancement is attached to some
offense other than the SVF. Sweatt, 887 N.E.2d at 84. But the Court held that
an impermissible double enhancement does arise where the two offenses are
ordered to be served consecutively. Id. (“In a case where separate counts are
enhanced based on the same prior felony conviction, ordering the sentences to
run consecutively has the same effect as if the enhancements both applied to the
same count.”). This is precisely what happened here – Collins’s 1995 robbery
conviction was used for the SVF count and as a predicate offense for the
habitual offender enhancement to his burglary count and the SVF and burglary
sentences were ordered to be served consecutively.
[10] The State contends that Collins’s double enhancement claim requires
examination of matters beyond the face of the sentencing judgment. We do not
agree. While such a claim might often require reference to other matters in or
extrinsic to the record, such is not the case here where the trial court’s order
contains a list of Collins’s criminal history, which shows only two prior felony
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 5 of 7 convictions. Accordingly, we need look no further than the order to determine
that the 1995 robbery was used twice to enhance his aggregate sentence. 1
[11] Still, the State argues that consideration of Sweatt itself constitutes looking
beyond the face of the sentencing judgment because that case came five years
after Collins’s 2003 sentencing. We find this argument to be a stretch. To be
clear, the State does not suggest that the holding in Sweatt cannot be
retroactively applied to Collins. 2 The State contends only that “no matter what
the holding in Sweatt, it has nothing to do with defining the statutory or legal
authority at the time [Collins] was sentenced in 2003” and therefore Collins’s
argument is grounded “in a change in circumstances” that must be raised
through a petition for post-conviction relief. Appellee’s Brief at 8, 9.
[12] In support of its argument, the State directs us to Poore v. State, 613 N.E.2d 478
(Ind. Ct. App. 1993), where we emphasized that a facially defective sentence is
one that “violates express statutory authority at the time the sentence is
pronounced.” Id. at 480 (emphasis in original). In Poore, the defendant filed a
motion to correct sentence after one of the predicate offenses underlying his
habitual offender adjudication was vacated. Because the defendant was
1 This court’s memorandum decision in Collins’s direct appeal also indicated that the robbery conviction was used to establish him as a SVF and as a predicate offense, along with the prior felony OWI conviction, to support the habitual offender finding. Collins, No. 28A04-0301-CR-38, slip op. at 4. 2 As the law of double enhancement has evolved over time, the holdings have been applied retroactively where appropriate. See, e.g., Jacobs v. State, 835 N.E.2d 485, 491 (Ind. 2005); Dugan v. State, 976 N.E.2d 1248, 1250 (Ind. Ct. App. 2012), trans. denied.
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 6 of 7 attacking a formerly valid sentence that later became subject to attack because
of a change in circumstance – the vacation of an underlying felony conviction –
we held that he could not seek redress through a motion to correct sentence. Id.
(“[T]he statutory motion to correct erroneous sentence is not the appropriate
procedural mechanism to challenge an habitual offender enhancement when a
conviction underlying the enhancement is subsequently vacated.”). This makes
sense because the defendant’s claim hinged on a circumstance that did not exist
at the time he was sentenced and, more particularly, required reference to
matters beyond the face of the sentencing judgment.
[13] Unlike Poore, the claimed sentencing error here relates only to circumstances
existing at the time of sentencing that were specifically set out in the sentencing
order. The order reflects an obvious double enhancement based on the same
prior robbery conviction, and resolution of Collins’s claim does not require
consideration of matters beyond the face of the judgment.
[14] Based on the above, we conclude that the trial court erred in denying the
motion to correct sentence. On remand, the trial court is directed to modify
Collins’s sentence to remedy the double enhancement defect, which may entail
ordering the SVF and the enhanced burglary sentences to be served
concurrently.
[15] Reversed and remanded.
Weissmann, J. and Kenworthy, J., concur.
Court of Appeals of Indiana | Opinion 23A-CR-1808 | January 11, 2024 Page 7 of 7