MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 23 2020, 9:42 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Scott E. Miller Curtis T. Hill, Jr. Westville, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott E. Miller, December 23, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-CR-2870 v. Appeal from the LaGrange Superior Court State of Indiana, The Honorable Lisa M. Bowen- Appellee-Respondent. Slaven, Judge Trial Court Cause No. 44D01-0407-FA-9
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 1 of 6 [1] Scott E. Miller appeals the trial court’s order dismissing his motion to correct
erroneous sentence. We affirm.
Facts and Procedural History
[2] On July 28, 2004, the State charged Miller with Count I, dealing in
methamphetamine as a class A felony, and Count II, dealing in a Schedule II
controlled substance as a class B felony. A jury found Miller guilty as charged.
On April 11, 2005, the court sentenced him to concurrent sentences of fifty
years for Count I and twenty years for Count II.
[3] On direct appeal, we affirmed Miller’s convictions. Miller v. State, No. 44A03-
0506-CR-259, slip op. at 2 (Ind. Ct. App. March 16, 2006), trans. denied. In
2013, we affirmed the denial of his petition for post-conviction relief. Miller v.
State, No. 44A05-1207-PC-376, slip op. at 2 (Ind. Ct. App. April 18, 2013).
[4] On October 18, 2019, Miller, pro se, filed a Motion to Correct Sentencing
Error. 1 On November 21, 2019, the trial court entered an order dismissing
Miller’s motion.
Discussion
[5] We note that Miller is proceeding pro se and that such litigants are held to the
same standard as trained counsel and are required to follow procedural rules.
Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Miller
1 The record does not contain a copy of Miller’s motion.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 2 of 6 did not provide a copy of the court’s April 11, 2005 sentencing order or his
October 18, 2019 Motion to Correct Sentencing Error. See Ind. Appellate Rule
50 (“The appellant’s Appendix in a Criminal Appeal shall contain . . . any
record material relied on in the brief unless the material is already included in
the Transcript . . . .”). To the extent Miller fails to cite to relevant authority or
the record or develop an argument with respect to the issue he attempts to raise
on appeal, those arguments are waived. See Cooper v. State, 854 N.E.2d 831, 834
n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it
was “supported neither by cogent argument nor citation to authority”).
[6] To the extent Miller develops an argument regarding his motion to correct
erroneous sentence, we cannot say that reversal is warranted. Generally, we
review a trial court’s decision on a motion to correct erroneous sentence only
for an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App.
2010). An abuse of discretion occurs when the trial court’s decision is against
the logic and effect of the facts and circumstances before it. Id.
[7] An inmate who believes he has been erroneously sentenced may file a motion
to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888
N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 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
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 3 of 6 be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.
[8] In Robinson v. State, the Indiana Supreme Court noted that a motion to correct
erroneous sentence is available only when the sentence is “erroneous on its
face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court
emphasized that “a motion to correct an erroneous sentence may only arise out
of information contained on the formal judgment of conviction . . . .” Neff, 888
N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A motion to correct
erroneous sentence may only be used to correct sentencing errors that are clear
from the face of the judgment imposing the sentence in light of the statutory
authority. 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 erroneous sentence. Id. Sentencing claims that are not
facially apparent “may be raised only on direct appeal and, where appropriate,
by post-conviction proceedings.” Id. “Use of the statutory motion to correct
sentence should thus be narrowly confined to claims apparent from the face of
the sentencing judgment, and the ‘facially erroneous’ prerequisite should . . . be
strictly applied . . . .” Id. The Court also held that the “sentence” that is subject
to correction under Ind. Code § 35-38-1-15 “means the trial court’s judgment of
conviction imposing the sentence and not the trial court’s entries on the
Department of Correction’s abstract of judgment form.” Id. at 794.
[9] Although Miller included an abstract of judgment in his appendix, he failed to
submit the formal judgment of conviction imposing the sentence as
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 4 of 6 contemplated under Robinson. See id. (holding that “a motion to correct
sentence may not be used to seek corrections of claimed errors or omissions in
an abstract of judgment”). In Neff, the Indiana Supreme Court acknowledged
that Marion County, Indiana, does not historically issue judgments of
conviction due to its very high volume of criminal cases. Neff, 888 N.E.2d at
1251. For this reason, the Neff Court deemed a trial court’s abstract of judgment
an appropriate substitute for purposes of making the claim. Id. However,
Miller’s sentences were entered in LaGrange County, Indiana. There is no
indication that LaGrange County issues only abstracts of judgment and not
formal judgments of conviction. See Johnson v. State, 845 N.E.2d 147, 149 (Ind.
Ct. App.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 23 2020, 9:42 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Scott E. Miller Curtis T. Hill, Jr. Westville, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott E. Miller, December 23, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-CR-2870 v. Appeal from the LaGrange Superior Court State of Indiana, The Honorable Lisa M. Bowen- Appellee-Respondent. Slaven, Judge Trial Court Cause No. 44D01-0407-FA-9
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 1 of 6 [1] Scott E. Miller appeals the trial court’s order dismissing his motion to correct
erroneous sentence. We affirm.
Facts and Procedural History
[2] On July 28, 2004, the State charged Miller with Count I, dealing in
methamphetamine as a class A felony, and Count II, dealing in a Schedule II
controlled substance as a class B felony. A jury found Miller guilty as charged.
On April 11, 2005, the court sentenced him to concurrent sentences of fifty
years for Count I and twenty years for Count II.
[3] On direct appeal, we affirmed Miller’s convictions. Miller v. State, No. 44A03-
0506-CR-259, slip op. at 2 (Ind. Ct. App. March 16, 2006), trans. denied. In
2013, we affirmed the denial of his petition for post-conviction relief. Miller v.
State, No. 44A05-1207-PC-376, slip op. at 2 (Ind. Ct. App. April 18, 2013).
[4] On October 18, 2019, Miller, pro se, filed a Motion to Correct Sentencing
Error. 1 On November 21, 2019, the trial court entered an order dismissing
Miller’s motion.
Discussion
[5] We note that Miller is proceeding pro se and that such litigants are held to the
same standard as trained counsel and are required to follow procedural rules.
Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Miller
1 The record does not contain a copy of Miller’s motion.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 2 of 6 did not provide a copy of the court’s April 11, 2005 sentencing order or his
October 18, 2019 Motion to Correct Sentencing Error. See Ind. Appellate Rule
50 (“The appellant’s Appendix in a Criminal Appeal shall contain . . . any
record material relied on in the brief unless the material is already included in
the Transcript . . . .”). To the extent Miller fails to cite to relevant authority or
the record or develop an argument with respect to the issue he attempts to raise
on appeal, those arguments are waived. See Cooper v. State, 854 N.E.2d 831, 834
n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it
was “supported neither by cogent argument nor citation to authority”).
[6] To the extent Miller develops an argument regarding his motion to correct
erroneous sentence, we cannot say that reversal is warranted. Generally, we
review a trial court’s decision on a motion to correct erroneous sentence only
for an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App.
2010). An abuse of discretion occurs when the trial court’s decision is against
the logic and effect of the facts and circumstances before it. Id.
[7] An inmate who believes he has been erroneously sentenced may file a motion
to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888
N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 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
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 3 of 6 be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.
[8] In Robinson v. State, the Indiana Supreme Court noted that a motion to correct
erroneous sentence is available only when the sentence is “erroneous on its
face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court
emphasized that “a motion to correct an erroneous sentence may only arise out
of information contained on the formal judgment of conviction . . . .” Neff, 888
N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A motion to correct
erroneous sentence may only be used to correct sentencing errors that are clear
from the face of the judgment imposing the sentence in light of the statutory
authority. 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 erroneous sentence. Id. Sentencing claims that are not
facially apparent “may be raised only on direct appeal and, where appropriate,
by post-conviction proceedings.” Id. “Use of the statutory motion to correct
sentence should thus be narrowly confined to claims apparent from the face of
the sentencing judgment, and the ‘facially erroneous’ prerequisite should . . . be
strictly applied . . . .” Id. The Court also held that the “sentence” that is subject
to correction under Ind. Code § 35-38-1-15 “means the trial court’s judgment of
conviction imposing the sentence and not the trial court’s entries on the
Department of Correction’s abstract of judgment form.” Id. at 794.
[9] Although Miller included an abstract of judgment in his appendix, he failed to
submit the formal judgment of conviction imposing the sentence as
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 4 of 6 contemplated under Robinson. See id. (holding that “a motion to correct
sentence may not be used to seek corrections of claimed errors or omissions in
an abstract of judgment”). In Neff, the Indiana Supreme Court acknowledged
that Marion County, Indiana, does not historically issue judgments of
conviction due to its very high volume of criminal cases. Neff, 888 N.E.2d at
1251. For this reason, the Neff Court deemed a trial court’s abstract of judgment
an appropriate substitute for purposes of making the claim. Id. However,
Miller’s sentences were entered in LaGrange County, Indiana. There is no
indication that LaGrange County issues only abstracts of judgment and not
formal judgments of conviction. See Johnson v. State, 845 N.E.2d 147, 149 (Ind.
Ct. App. 2006) (addressing an appeal from LaGrange County and observing
that the trial court entered a written sentencing order), reh’g denied, trans. denied.
[10] Even if we were to accept Miller’s abstract of judgment, we would conclude
that his claim must fail. As noted, he did not provide a copy of his motion.
Nonetheless, we note that resolution of the issue presented by Miller necessarily
requires consideration of factors outside the face of the judgment. He cites to
the sentencing transcript, appears to challenge the aggravating factors, and
argues that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), reh’g
denied, requires that the jury determine the existence of aggravators. To address
Miller’s claims would require a consideration of proceedings before, during, or
after his sentencing. Thus, these arguments are not properly presented by way
of a motion to correct erroneous sentence. See Fulkrod v. State, 855 N.E.2d
1064, 1067 (Ind. Ct. App. 2006) (“[A] determination of whether a sentence was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 5 of 6 properly imposed under Blakely would require that we look beyond the face of
the judgment to see if imposition of an enhanced sentence was based upon facts
determined through constitutionally permissible channels. As such, a Blakely
claim is not the type of claim which may be brought through a motion to
correct erroneous sentence.”).
[11] For the foregoing reasons, we affirm.
[12] Affirmed.
Vaidik, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2870 | December 23, 2020 Page 6 of 6