Tyree Thomas v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 20, 2020
• Docket: 20A-CR-1148
• 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 court except for the purpose of establishing Oct 20 2020, 7:47 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

APPELLANT, PRO SE ATTORNEYS FOR APPELLEE Tyree Thomas Curtis T. Hill, Jr. Bunker Hill, Indiana Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tyree Thomas, October 20, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1148 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff. Hawkins, Judge The Honorable Peggy R. Hart, Magistrate Trial Court Cause No. 49G05-1806-F5-20138

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1148 | October 20, 2020 Page 1 of 5 Statement of the Case

[1] Tyree Thomas (“Thomas”), pro se, appeals the trial court’s order denying his

motion to correct erroneous sentence. Thomas challenges the executed portion

of his sentence, arguing that the trial court violated the terms of his plea

agreement by exceeding the sentencing cap of three years. Because a motion to

correct erroneous sentence is limited to correcting sentencing errors apparent on

the face of the judgment and Thomas raises an issue that is not so apparent, we

conclude that the trial court did not abuse its discretion by denying his motion

to correct erroneous sentence.

[2] We affirm.

Issue

Whether the trial court abused its discretion by denying Thomas’ motion to correct erroneous sentence.

Facts

[3] In October 2018, the State charged Thomas with Level 5 felony battery with a

deadly weapon. In December 2018, Thomas and the State entered into a plea

agreement wherein Thomas pled guilty as charged. According to the plea

agreement:

The parties are free to argue for an appropriate sentence, but the parties agree that the initial executed sentence will be capped at three (3) years with placement open to the Court. All other terms, including any term of probation is open to the Court.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1148 | October 20, 2020 Page 2 of 5 (App. Vol. 2 at 18). Thereafter, the trial court imposed a five-year sentence

with two years executed in the Department of Correction, one year in

community corrections, and two years suspended with one year of probation.

[4] In May 2020, Thomas filed a motion to correct erroneous sentence. In his

motion, Thomas challenged the executed portion of his sentence, arguing that

his sentence exceeded the sentencing cap of three years. The trial court denied

Thomas’ motion to correct erroneous sentence. Thomas now appeals.

Decision

[5] Thomas appeals the trial court’s denial of his motion to correct erroneous

sentence. We review a trial court’s denial of a motion to correct erroneous

sentence for an abuse of discretion, which occurs when the trial court’s decision

is against the logic and effect of the facts and circumstances before it. Davis v.

State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012).

[6] An inmate who believes that he has been erroneously sentenced may file a

motion to correct the sentence pursuant to INDIANA CODE § 35-38-1-15.

Neff v. State, 888 N.E.2d 1249, 1250-51 (Ind. 2008). This statute 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1148 | October 20, 2020 Page 3 of 5 “The purpose of the 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) (quoting Gaddie

v. State, 566 N.E.2d 535, 537 (Ind. 1991)).

[7] A statutory 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.

“Such claims may be resolved by considering only the face of the judgment and

the applicable statutory authority without reference to other matters in or

extrinsic to the record.” Fulkrod v. State, 855 N.E.2d 1064, 1066 (Ind. Ct. App.

2006). If a claim requires consideration of the proceedings before, during, or

after trial, it may not be presented by way of a motion to correct erroneous

sentence. Robinson, 805 N.E.2d at 787. “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

henceforth be strictly applied[.]” Id.

[8] Here, Thomas appeals the trial court’s denial of his motion to correct erroneous

sentence, but he does not argue that the sentencing error is clear from the face

of the judgment. Rather, he argues that “the trial court violated the plea

agreement in this matter when it went outside the prescribed ‘cap’ of 3 years

total.” (Thomas’ Br. 5). We agree with the State that “[t]he sentencing error of

which Thomas complains is not clear from the face of the judgment.” (State’s

Br. 7). Because the error Thomas alleges is not clear from the face of the

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1148 | October 20, 2020 Page 4 of 5 sentencing order, it is not appropriate for a motion to correct erroneous

sentence. See Robinson, 805 N.E.2d at 787. Accordingly, Thomas has failed to

show that the trial court abused its discretion by denying his motion, and we

affirm the trial court’s judgment. See, e.g., Bauer v. State, 875 N.E.2d 744, 746

(Ind. Ct. App. 2007) (affirming the trial court’s denial of the defendant’s motion

to correct erroneous sentence where the defendant’s claims required

consideration of matters in the record outside of the face of the judgment and

were, accordingly, not the types of claims properly presented in a motion to

correct erroneous sentence), trans. denied.

[9] Affirmed.

Kirsch, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1148 | October 20, 2020 Page 5 of 5