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: ATTORNEYS FOR APPELLEE:
CLIFFORD J. ELSWICK GREGORY F. ZOELLER
New Castle Correctional Facility Attorney General of Indiana
New Castle, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
Jun 19 2014, 9:09 am
IN THE
COURT OF APPEALS OF INDIANA
CLIFFORD J. ELSWICK, )
)
Appellant-Defendant, )
)
vs. ) No. 20A05-1311-CR-553
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Charles C. Wicks, Special Judge
Cause No. 20C01-8911-CF-117
June 19, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Clifford J. Elswick appeals the trial court’s denial of his motion to correct erroneous
sentence. Finding that the issue concerning his consecutive sentence has already been
litigated, appealed, and affirmed by another panel of this Court, we affirm.
Facts and Procedural History
The facts as summarized by this Court in Elswick’s 1999 appeal are as follows:
While jailed awaiting trial for the murder of Thurman Pulluiam and the
attempted murder of David Kyle, Elswick attempted to arrange the murder of
witness-victim Kyle. In separate jury trials before Judge Duffin, Elswick was
first convicted on the murder and attempted murder charges, for which he was
sentenced to consecutive terms of forty and thirty years. He was then
convicted of conspiracy to murder Kyle, for which he was sentenced to fifty
years to be served consecutively to the sentences for murder and attempted
murder.
Elswick appealed his sentence for the conspiracy conviction asserting
that it was manifestly unreasonable and that the trial court had relied upon
improper aggravating factors. This court affirmed his sentence. See Elswick v.
State (1991), 581 N.E.2d 469. Thereafter, Elswick filed a motion to correct
erroneous sentence [(“1997 Motion”)] asserting that the trial court lacked the
statutory authority to order his sentence for conspiracy to run consecutively to
his prior convictions.
Elswick v. State, 706 N.E.2d 592, 593 (Ind. Ct. App. 1999), trans. denied. On appeal,
another panel of this Court affirmed, holding that because the same trial court was imposing
sentences for closely connected offenses, the court had the authority to impose the sentences
consecutively. Id. at 596. Our supreme court denied transfer.
In May 2012, Elswick filed a second motion to correct erroneous sentence (“2012
Motion”), once again challenging the legality of his consecutive sentences. In August 2013,
the trial court held a hearing on the 2012 Motion. In September 2013, Elswick filed a motion
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to correct error. The trial court denied both motions in an order dated October 25, 2013. He
now appeals pro se.
Discussion and Decision
Elswick challenges the trial court’s denial of his 2012 Motion. We review a trial
court’s ruling on a motion to correct erroneous sentence using an abuse of discretion
standard. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012). A motion to correct
erroneous sentence is a statutory matter, derived from Indiana Code Section 35-38-1-15,
which states,
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.
The statute provides “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) (citation omitted). A motion to correct sentence is appropriate only when the sentence
is “erroneous on its face.” Id. at 786.
In his 1997 Motion, his 2012 Motion, and his motion to correct error, Elswick cited as
facial error the trial court’s imposition of consecutive sentences. Indiana Code Section 35-5-
1-2 authorizes consecutive sentences in certain circumstances. At the time of Elswick’s
offenses, the statute provided as follows:
(a) Except as provided in subsection (b) of this section, the court shall
determine whether terms of imprisonment shall be served concurrently or
consecutively.
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(b) If, after being arrested for one (1) crime, a person commits another crime:
(1) before the date the person is discharged from probation, parole, or a
term of imprisonment imposed for the first crime; or
(2) while a person is released:
(A) upon the person’s own recognizance; or
(B) on bond;
the terms of imprisonment for the crimes shall be served consecutively,
regardless of the order in which the crimes are tried and sentences imposed.
Id. (1987).1
In denying Elswick’s 2012 Motion, the trial court concluded that the consecutive
sentencing issue had been litigated and therefore was barred by res judicata. In Reed v. State,
856 N.E.2d 1189 (Ind. 2006), our supreme court described res judicata as a doctrine that
bars a later suit when an earlier suit resulted in a final judgment on the merits,
was based on proper jurisdiction, and involved the same cause of action and
the same parties as the later suit. As a general rule, when a reviewing court
decides an issue on direct appeal, the doctrine of res judicata applies, thereby
precluding its review in [subsequent proceedings such as] post-conviction
proceedings. The doctrine of res judicata prevents the repetitious litigation of
that which is essentially the same dispute.
Id. at 1194. A defendant “cannot escape the effect of claim preclusion merely by using
different language to phrase an issue and define an alleged error.” Id. Where the defendant
1
The Indiana General Assembly subsequently amended the statute to specifically address consecutive
sentencing in cases where the defendant’s sentences were not imposed at the same time. See Ind. Code § 35-
50-1-2(c) (1994) (“The court may order terms of imprisonment to be served consecutively even if the
sentences are not imposed at the same time.”).
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simply designates an issue differently than in his previous proceedings, the State may still
defend on res judicata grounds. Id.
In addition to raising res judicata, the State also cites the “law of the case” doctrine.
According to this doctrine, “an appellate court’s determination of a legal issue binds the trial
court and ordinarily restricts the court on appeal in any subsequent appeal involving the same
case and relevantly similar facts.” Hopkins v. State, 782 N.E.2d 988, 990 (Ind. 2003).
Unlike the doctrine of res judicata, the law of the case doctrine is a discretionary tool by
which the appellate courts decline to revisit previously determined legal issues in the same
case on substantially the same facts. Cutter v. State, 725 N.E.2d 401, 405 (Ind. 2000). The
purpose of the law of the case doctrine is to promote finality and judicial economy. Id. It
applies “only to those issues actually considered and decided on appeal.” Id. (citations
omitted).
In Elswick’s appeal of his 1997 Motion, he relied on and distinguished the same
consecutive sentencing cases as those included in his current appellant’s brief. In that appeal,
another panel of this Court fully addressed, analyzed, and distinguished those cases and
affirmed Elswick’s consecutive sentence, emphasizing that the “circumstance that empowers
the trial court to impose a consecutive sentence is that the same court is imposing sentences
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for closely related offenses.” Elswick, 706 N.E.2d at 596.2
In short, the propriety of Elswick’s consecutive sentences was fully litigated in his
previous appeal. His efforts to redesignate and repackage his claim in constitutional terms
are unpersuasive.3 Both res judicata and the law of the case bar him from relitigating his
consecutive sentencing claim and thereby getting another bite at the apple. Accordingly, we
affirm.
Affirmed.
BAKER, J., and BARNES, J., concur.
2
For example, Elswick unsuccessfully relied on Kendrick v. State, 529 N.E.2d 1311 (Ind. 1988), in
the appeal of his 1997 Motion, and he again relies on Kendrick as support for the same claim (erroneous
consecutive sentencing). Moreover, three years after this Court affirmed the denial of Elswick’s 1997 Motion,
our supreme court commented on the facts distinguishing Elswick’s claim from Kendrick’s:
The facts in Elswick v. State … demonstrate the problem in a broad application of the
rule that a separate sentencing procedure cannot result in a consecutive sentence. If
consecutive sentences are impossible, short of the risk of the death penalty or life without
parole, a defendant like Elswick, faced with a murder charge, has no incentive to avoid other
crimes, including attempts to intimidate or even kill witnesses, as long as those crimes carry
only equal or shorter penalties. Presumably for that reason the statutory underpinning of
Kendrick has been removed. The Court of Appeals in Elswick distinguished Kendrick on the
grounds that the second crime was a conspiracy to kill a witness in the first, and was therefore
“closely related” to the first crime.
Davidson v. State, 763 N.E.2d 441, 446 (Ind. 2002), cert. denied (2003). These distinguishing circumstances
between Kendrick’s and Elswick’s claims have been analyzed, and we decline to revisit them.
3
Even if they did not amount to a repackaging of the same claim, his constitutional claims could have
been litigated on the merits of a previous proceeding. See Shewmaker v. Etter, 644 N.E.2d 922, 931 (Ind. Ct.
App. 1994) (“Res judicata bars the relitigation of issues which were actually litigated or which could have been
litigated in the first action.”), adopted by Hammes v. Brumley, 659 N.E.2d 1021 (Ind. 1995).
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Clifford J. Elswick v. State of Indiana
Combined Opinion