Opinion
No. 02A05-1012-CR-789
09-23-2011
DAMON A. COLLINS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
APPELLANT PRO SE : DAMON A. COLLINS Westville, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE:
DAMON A. COLLINS
Westville, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-1004-FC-93
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER , Judge
In this belated appeal, Damon Collins challenges the denial of his pro-se motion to correct erroneous sentence. Proceeding pro se, Collins presents three issues for review, which we consolidate and restate as the following issue: Did the trial court properly deny Collins's motion?
We affirm.
On April 23, 2010, the State charged Collins with class C felony burglary (Count 1), class D felony possession of methamphetamine (Count 2), and two counts of class A misdemeanor resisting law enforcement (Counts 3 and 4). Thereafter, on June 24, 2010, the State filed a two-count information alleging Collins was a habitual offender (Count 5) and a habitual controlled substance offender (Count 6). Finally, on July 30, the State also charged him with class A misdemeanor invasion of privacy (Count 7).
Collins entered into a plea agreement with the State on July 30, 2010. Pursuant to the agreement, Collins pleaded guilty to Counts 1-3 and 7. He also admitted being a habitual offender as alleged in Count 5. In exchange, the State agreed to dismiss Counts 4 and 6. The agreement provided for the following sentence: Seven years on Count 1 enhanced by 4 years on Count 5, three years with two suspended to probation on Count 2, one year on Count 3, and thirty days on Count 7. Counts 1 and 3 were to be served concurrently, with Counts 2 and 7 served consecutively to each other and Count 1. The trial court accepted the agreement and entered the sentence accordingly. Thus, Collins received an aggregate sentence of fourteen years and thirty days, with two of those years suspended to probation.
On November 15, 2010, Collins filed the instant pro-se motion to correct erroneous sentence, arguing that his sentence violated Ind. Code Ann. § 35-50-1-2 (c) (West, Westlaw through 2011 1st Regular Sess.), which limits the aggregate sentence for felony convictions arising out of an episode of criminal conduct. The trial court denied the motion on December 6. Collins now appeals.
Collins's appeal lacks merit for a number of reasons, both procedurally and substantively. First, he cannot raise this issue by way of a motion to correct sentence. As our Supreme Court held in Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004), "a motion to correct 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." In other words, use of this statutory motion should be reserved for the correction of "obvious sentencing errors". Id. at 787 n.3. Claims that require consideration of matters outside the face of the sentencing judgment may not be addressed via this type of motion. See, e.g., Neff v. State, 888 N.E.2d 1249 (Ind. 2008); Robinson v. State, 805 N.E.2d 783.
Collins's claim that his convictions arose out of a single episode of criminal conduct clearly requires consideration of matters outside the face of the sentencing judgment. Without referring to the record, there is simply no way to determine whether the offenses were "closely related in time, place, and circumstance", I.C. § 35-50-1-2 (b), as asserted by Collins. Therefore, we conclude that Collins improperly raised his claim by way of a motion to correct sentence.
Moreover, we observe that on its face Collins's claim is substantively flawed. I.C. § 35-50-1-2 (c) provides in pertinent part as follows:
[E]xcept for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8..., to which the defendant is sentenced for felony convictions arising out of an(Emphases supplied). Collins's appellate argument wholly ignores the emphasized portions of the statute. In this regard, we note that Count 7 was not a felony conviction, and the four-year habitual offender enhancement (Count 5) is exempted from consideration under the statute. See id. ("exclusive of terms of imprisonment under [the habitual offender statute]").
episode of criminal conduct 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.
In the instant case, Collins was convicted of only two felonies (Counts 1 and 2), with the most serious being a class C felony. He received an aggregate sentence of ten years on these counts. Therefore, even assuming that the crimes constituted an episode of criminal conduct and ignoring the fact that he expressly agreed to this sentence in exchange for a beneficial plea agreement, his sentence did not violate the statute because he received the advisory sentence for a class B felony. See I.C. § 35-50-2-5 (West, Westlaw through 2011 1st Regular Sess.).
Judgment affirmed. DARDEN, J., and VAIDIK, J., concur.