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 Feb 26 2014, 6:06 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DENNIS POWERS GREGORY F. ZOELLER
Michigan City, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DENNIS POWERS, )
)
Appellant-Defendant, )
)
vs. ) No. 61A04-1307-CR-356
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PARKE CIRCUIT COURT
The Honorable Sam A. Swaim, Judge
Cause No. 61C01-9309-CF-107
February 26, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Dennis Powers, pro se, appeals the trial court’s denial of his motion to correct
erroneous sentence. Powers raises two issues which we consolidate and restate as
whether the trial court erred by denying his motion to correct erroneous sentence. We
affirm.
FACTS AND PROCEDURAL HISTORY
On March 24, 1994, the court sentenced Powers to twenty years for escape
resulting in bodily injury as a class B felony and a consecutive sentence of fifty years for
kidnapping as a class A felony. Powers pursued a direct appeal, and this court affirmed
his convictions and sentence. Powers also pursued post-conviction relief, and the post-
conviction court denied relief. Powers pursued an appeal of the denial of his petition for
post-conviction relief, and this court affirmed the post-conviction court’s judgment.
On May 23, 2013, Powers filed a motion to correct erroneous sentence. Powers
alleged that his sentence was erroneous on the basis that the sentence imposed on the
escape with bodily injury conviction and the kidnapping conviction constitute double
jeopardy. Specifically, Powers alleged that “[t]he record clearly illustrates that the
sentence was erroneous in that the same act of beating Mr. Newton is used to prove both
the bodily injury element of the escape and the elements of the kidnapping.” Appellant’s
Appendix at 4.
On June 7, 2013, the State filed its response to Powers’s motion to correct
erroneous sentence and argued that the bodily injury element was not used to prove both
crimes because while the bodily injury element raised the escape charge to a class B
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felony, the kidnapping statute in 1993 was a class A felony regardless of whether or not
there was any injury.
On June 20, 2013, Powers filed a reply to the State’s response in which he asserted
that he was not arguing that the bodily injury was used to prove the elements of
kidnapping, but that the act of beating Newton was used to prove both the bodily injury
enhancement of the escape and the elements of the kidnapping charge. On June 12, 2013,
the court denied Powers’s motion.
The issue is whether the trial court erred by denying Powers’s motion. Powers
points to the charging information, the probable cause affidavit, and the testimony at trial,
in support of his argument that his sentence violates Indiana’s prohibition against double
jeopardy because the beating of Newton was used to prove the elements of kidnapping as
an A felony and could not be used to prove the enhancement element of the escape
charge. The State asserts that a double jeopardy claim is a challenge to the validity of a
defendant’s conviction and not to the validity of a sentence. The State also argues that a
review of a perceived double jeopardy violation would surpass a sentencing error that is
clear from the face of the judgment and would require the court to consider the charging
information and proceedings during the trial. In his reply brief, Powers argues that even
if the court were to decide that the motion to correct erroneous sentence was the wrong
vehicle to raise the double jeopardy issue, this court has jurisdiction to review the issue
sua sponte because double jeopardy is fundamental error.
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
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abuse of discretion occurs when the trial court’s decision is against the logic and effect of
the facts and circumstances before it. Id.
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 be in writing and supported by a memorandum of
law specifically pointing out the defect in the original sentence.
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 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.
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Strictly construing the application of a motion to correct erroneous sentence, we
must affirm the trial court’s denial of Powers’s motion. A determination concerning
Powers’s double jeopardy arguments would require resort to matters outside the face of
the judgment. Such an inquiry is not allowed in cases involving a motion to correct
erroneous sentence. See Robinson, 805 N.E.2d at 787 (observing that the Court in
Mitchell v. State, 726 N.E.2d 1228, 1243 (Ind. 2000), reh’g denied, had addressed a
double jeopardy claim presented by a motion to correct sentence, but that use of the
statutory motion to correct sentence should be narrowly confined to claims apparent from
the face of the sentencing judgment, and “the ‘facially erroneous’ prerequisite should
henceforth be strictly applied, notwithstanding . . . Mitchell”). Thus, Powers’s argument
is not properly presented by way of a motion to correct erroneous sentence. As a result,
we cannot say that the trial court abused its discretion by denying Powers’s motion.
For the foregoing reasons, we affirm the denial of Powers’s motion to correct
erroneous sentence.
Affirmed.
ROBB, J., and BARNES, J., concur.
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