Samuel L. Wait v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 30, 2020
• Docket: 20A-CR-1188
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 30 2020, 8:20 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Samuel L. Wait Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Samuel L. Wait, October 30, 2020 Appellant, Court of Appeals Case No. 20A-CR-1188 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee. Judge Trial Court Cause No. 20D03-0708-FA-55

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1188 | October 30, 2020 Page 1 of 5 Case Summary [1] Samuel L. Wait (“Wait”) appeals, pro se, the trial court’s order denying his

motion to correct erroneous sentence.

[2] We affirm.

Issues [3] Wait raises three issues on appeal which we consolidate and restate as follows:

I. Whether the trial court erred when it denied his motion to correct sentence as untimely.

II. Whether he may raise his claims regarding his repeat sexual offender and credit restricted felon statuses in a motion to correct sentence.

Facts and Procedural History [4] In 2009, a jury found Wait guilty of four counts of Class A felony child

molesting and Wait admitted that he is a habitual offender and repeat sexual

offender. The trial court sentenced Wait to an aggregate term of 110 years

imprisonment. Wait appealed his convictions and the order that he serve

consecutive sentences. We affirmed Wait’s convictions and sentence. Wait v.

State, No. 20A03-0904-CR-135, 2009 WL 3199127 (Ind. Ct. App. October 7,

2009). Wait subsequently litigated a petition for post-conviction relief in which

he alleged ineffective assistance of counsel. The post-conviction court denied

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1188 | October 30, 2020 Page 2 of 5 the petition and we affirmed. Wait v. State, No. 20A03-1512-PC-2304, 2017

WL 127714 (Ind. Ct. App. January 13, 2017), trans. denied.

[5] On April 27, 2020, Wait filed a motion to correct erroneous sentence and

supporting memorandum in which he alleged, on ex post facto grounds, that he

could not be sentenced as a repeat sexual offender or be found to be a credit

restricted felon. On May 27, 2020, the trial court denied Wait’s motion on the

grounds that it was “not timely filed.” App. at 21. This appeal ensued.

Discussion and Decision [6] Wait appeals the denial of his motion to correct erroneous sentence. We review

such a ruling for an abuse of discretion. E.g., Woodcox v. State, 30 N.E.3d 748,

750 (Ind. Ct. App. 2015). An abuse of discretion occurs when the decision is

against the logic and effect of the facts and circumstances before the trial court.

Id. “While we defer to the trial court’s factual determinations, we review legal

conclusions de novo.” Id.

[7] As the State admits, the trial court’s conclusion that Wait’s motion to correct

erroneous sentence was untimely was incorrect. Rather, such a motion may be

filed at any time. See Ben-Yisrayl v. State, 908 N.E.2d 1223, 1227 (Ind. Ct. App.

2009) (noting “a sentence that exceeds statutory authority constitutes

fundamental error and is subject to correction at any time”), trans. denied.

[8] Nevertheless, the denial of Wait’s motion was appropriate because his claims

were not properly brought in a statutory motion to correct sentence. Indiana

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1188 | October 30, 2020 Page 3 of 5 Code Section 35-38-1-15 provides that a convicted person may file a motion to

correct an erroneous sentence to remedy a defect in a sentencing order. But use

of such a statutory motion is

“narrowly confined” to claims apparent from the face of the sentencing judgment. [Robinson v. State, 805 N.E.2d 783,] 787 [(Ind. 2004)]. As to sentencing claims not facially apparent, the motion to correct sentence is an improper remedy. Id. A sentencing error that requires examination of matters beyond the face of the sentencing judgment is better suited for resolution on direct appeal or through post-conviction relief. Woodcox[ v. State], 30 N.E.3d [748,] 751 [(Ind. Ct. App. 2015)].

Hobbs v. State, 71 N.E.3d 46, 49 (Ind. Ct. App. 2017), trans. denied. Thus,

“[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.” Robinson,

805 N.E.2d at 787; see also, e.g., Hobbs, 71 N.E.3d at 49 (holding motion to

correct erroneous sentence was impermissible remedy where court could not

“resolve Hobbs’s claims without looking past the face of the sentencing order to

the evidence presented at Hobbs’s original trial”).

[9] Wait’s claim that he was erroneously found to be a repeat sexual offender

requires consideration of his prior crimes. See Ind. Code § 35-50-2-14 (2009).

His claim that the credit restricted felon statute, Indiana Code Section 35-41-1-

5.5(1) (2008), was erroneously applied to him requires consideration of the

dates when his crimes were committed. That is, Wait’s claims are not facially

apparent but require examination of events before trial, i.e., matters beyond the

sentencing judgment. Thus, his claims were not properly brought in a motion

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1188 | October 30, 2020 Page 4 of 5 to correct erroneous sentence under Indiana Code Section 35-38-1-15.

Robinson, 805 N.E.2d at 787. Rather, if Wait wishes to pursue these claims, he

must do so by seeking permission to bring a successive petition for post-

conviction relief pursuant to Rule 1(12) of the Indiana Rules of Post-Conviction

Remedies. See Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008) (citing

Robinson, 805 N.E.2d at 787) (“[A]ll manner of claims of sentencing errors

(other than those that do not require consideration of matters outside the face of

the sentencing judgment), are addressed via post-conviction relief

proceedings.”).

[10] Affirmed.

Vaidik, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1188 | October 30, 2020 Page 5 of 5