Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not Nov 12 2013, 5:36 am
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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK A. DUFF GREGORY F. ZOELLER
Duff Law, LLC Attorney General of Indiana
Evansville, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES EDWARD BANKS, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1301-CR-38
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert Pigman, Judge
Cause No. 82D02-0908-FC-749
November 12, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
James Banks appeals the denial of his motion to correct erroneous sentence. We
affirm.
Issue
Banks raises one issue, which we restate as whether the trial court properly denied
his motion to correct erroneous sentence.
Facts1
On August 10, 2009, Banks was charged with Class C felony escape, Class D
felony battery resulting in bodily injury, Class A misdemeanor resisting law enforcement,
and Class A misdemeanor illegall storage or transportation of anhydrous ammonia. On
January 20, 2010, Banks pled guilty as charged. At the March 3, 2010 sentencing
hearing, the parties agreed that the judgment of conviction on the escape charge would be
entered as a Class D felony. Banks was sentenced to three years on the escape charge,
with eighteen months executed and the remainder suspended to a drug abuse probation
services program. Banks was sentenced to eighteen months executed on the battery
charge and to one year executed on each of the misdemeanor charges. The trial court
ordered all of the sentences to run concurrently. Banks was awarded 102 days of credit
for time served and 102 days of good time credit.
In August 2010, Banks was discharged from the Department of Correction and
placed on probation. On September 21, 2010, a petition for revocation of probation was
filed in Vanderburgh County. Although represented by counsel at a December 10, 2010
1
The underlying facts are based on the chronological case summary.
2
hearing, Banks failed to appear. On December 10, 2010, a second petition for revocation
of probation was filed, and a bench warrant for Banks was issued. On December 23,
2010, another petition for revocation of probation was filed.
On January 12, 2011, a hearing was held at which Banks was represented by
counsel. The trial court was informed that Banks was being held in the Posey County Jail
and ordered that the bench warrant remain in effect. On February 9, 2011, another
hearing was held, at which Banks was represented by counsel while he remained in the
Posey County Jail, and the trial court again ordered that the bench warrant remain in
effect.
On May 26, 2011, the warrant was served on Banks. On May 27, 2011, Banks,
while in custody, appeared by video at an initial hearing on the alleged probation
violations. The trial court ordered that Banks be held without bond. On June 9, 2011,
Banks apparently admitted to the alleged probation violations and was ordered to serve
one year of his previously suspended sentence in the Department of Correction. The trial
court ordered that this sentence be served consecutive to matters arising out of Posey
County. The trial court also awarded fifteen days credit and good time credit.
On December 10, 2012, Banks filed a motion to correct erroneous sentence.
Banks argued that he was entitled to 172 days of credit for December 20, 2010, when he
was arrested and held in Posey County, until June 6, 2011, when he was sentenced on the
probation violations in Vanderburgh County. On December 17, 2012, the trial court
denied the motion. Banks now appeals.
3
Analysis
Banks argues that the trial court improperly denied his motion to correct erroneous
sentence. We review a trial court’s decision on a motion to correct erroneous sentence
only 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).
An inmate who believes he or she has been erroneously sentenced may file a
motion to correct the sentence pursuant to Indiana Code Section 35-38-1-15. Neff v.
State, 888 N.E.2d 1249, 1250-51 (Ind. 2008). Indiana Code Section 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.
“[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 v. State, 805 N.E.2d 783, 787 (Ind. 2004). “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. “When claims of sentencing errors require
consideration of matters outside the face of the sentencing judgment, they are best
addressed promptly on direct appeal and thereafter via post-conviction relief proceedings
where applicable.”
4
Banks argues that he is entitled to at least 147, if not 174, days of credit for the
time he was incarcerated in Posey County. Banks’s argument is based on his review of
the chronological case summary and the assumption that he was held in the Posey County
Jail because of the Vanderburgh County warrant. As Banks acknowledges in his brief,
however, the details surrounding his incarceration in Posey County are not clear. Thus,
the resolution of this issue would have required the consideration of matters outside the
face of the sentencing judgment. Therefore, it was not properly presented in a motion to
correct erroneous sentence. Accordingly, the trial court did not abuse its discretion in
denying the motion to correct erroneous sentence.
Conclusion
The trial court did not abuse its discretion in denying Banks’s motion to correct
erroneous sentence. We affirm.
Affirmed.
CRONE, J., and PYLE, J., concur.
5
James Edward Banks, Jr. v. State of Indiana
Combined Opinion