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 Apr 21 2014, 6:32 am
estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
THOMAS D. DILLMAN GREGORY F. ZOELLER
Branchville, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS D. DILLMAN, )
)
Appellant-Plaintiff, )
)
vs. ) No. 53A05-1307-CR-331
)
STATE OF INDIANA, )
)
Appellee-Defendant. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Mary Ellen Diekhoff, Judge
Cause No. 53C05-1202-FD-169
April 21, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Thomas Dillman appeals the denial of his motion to correct erroneous sentence,
which challenged his sentence for one count of Class A misdemeanor operating a vehicle
while intoxicated (“OWI”). We affirm.
Issue
The dispositive issue before us is whether Dillman could attack the sentence he
received through a motion to correct erroneous sentence.
Facts
On February 26, 2012, Dillman was arrested and charged with Class D felony
resisting law enforcement and Class A misdemeanor OWI. Dillman remained in jail on
those charges as well as charges in other unrelated cases. On January 16, 2013, Dillman
pled guilty to the OWI count. The plea agreement stated that Dillman would be sentenced
to “time served—accounting for all credit time.” App. p. 26. On February 7, 2013, the
trial court sentenced Dillman to a term of 364 days executed, with credit for time served of
182 days in Class I. In other words, Dillman received “one-for-one” or “good time” credit
for those 182 days, meaning Dillman had already served the entirety of his sentence.
On June 13, 2013, Dillman subsequently filed a “Motion to Correct Erroneous
Sentence.” Id. at 11.1 The motion apparently argued that the time he served awaiting
sentencing on the OWI charge was only 115 days and, therefore, his total sentence for the
OWI charge should have been only 230 days. Dillman seems to have contended that the
1
Dillman has not provided us with a copy of this motion.
2
other sixty-seven days of the 182 was actually served on one of the other charges prior to
his arrest in the present case. The trial court denied Dillman’s motion and he now appeals.
Analysis
We review rulings on motions to correct erroneous sentence for an abuse of
discretion, which occurs when a decision is against the logic and effect of the facts and
circumstances before the trial court. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App.
2012). An inmate who believes he or she has been erroneously sentenced may file a motion
to correct sentence under Indiana Code Section 35-38-1-15. Neff v. State, 888 N.E.2d
1249, 1250-51 (Ind. 2008). Such motions may only be used to attack a sentence that is
“erroneous on its face.” Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004). Alleged
sentencing errors that require consideration of matters outside the face of the sentencing
judgment can only be attacked via direct appeal or, when appropriate, petitions for post-
conviction relief, and not via motions to correct erroneous sentence. Id. 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 sentence.” Id.
The State argues that Dillman’s motion in this case was not a facial attack upon his
sentencing order and, thus, was not permitted by Robinson. We agree. Resolution of the
motion would require much delving into matters outside the face of the sentencing order,
in particular the time served and sentences imposed in other cases and the precise
parameters of the plea agreement in this and the other cases. Dillman’s sentencing order
is facially correct, as it notes the number of presentencing days he had spent in confinement
and also expressly noted that he was entitled to Class I “one-for-one” or “good time” credit
3
for that time, pursuant to Indiana Code Section 35-50-6-3. We conclude that a motion to
correct erroneous sentence was not the proper vehicle for Dillman’s arguments against his
sentence. See Murfitt v. State, 812 N.E.2d 809, 811 (Ind. Ct. App. 2004) (holding
Robinson barred defendant’s motion to correct erroneous sentence that challenged the
amount of time defendant had spent in confinement prior to sentencing). Because Dillman
pled guilty and because the time for filing a direct appeal is long past, and was already long
past when Dillman filed his motion to correct erroneous sentence, he must challenge his
sentence in this case via post-conviction proceedings, if at all.
Conclusion
The trial court did not abuse its discretion in denying Dillman’s motion to correct
erroneous sentence. We affirm.
Affirmed.
BAKER, J., and CRONE, J., concur.
4
Thomas D. Dillman v. State of Indiana
Combined Opinion