Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 15 2013, 5:41 am
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:
DAVID NEWSON GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID NEWSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1302-CR-81
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marc T. Rothenberg, Judge
The Honorable Amy Barbar, Magistrate
Cause No. 49G02-9604-PC-48010
August 15, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
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Case Summary
David Newson appeals the trial court’s denial of his motion to correct erroneous
sentence. We affirm.
Issue
Newson raises one issue, which we restate as whether the trial court properly
denied his motion to correct erroneous sentence.
Facts
On January 8, 1998, the trial court sentenced Newson to consecutive sentences of
sixty-five years for murder and eight years for Class C felony carrying a handgun without
a license for an aggregate sentence of seventy-three years. Newson filed a direct appeal
with the Indiana Supreme Court, and his convictions were affirmed. Newson v. State,
721 N.E.2d 237 (Ind. 1999). Newson then filed a petition for post-conviction relief,
which was denied in 2004. Newson appealed that denial, and this court affirmed the
denial of his petition for post-conviction relief. Newson v. State, No. 49A02-0410-PC-
855 (Ind. Ct. App. Nov. 28, 2005). Our supreme court then denied Newson’s transfer
request.
On December 11, 2012, Newson filed a pro se motion to correct erroneous
sentence, arguing that the trial court erred by imposing enhanced and consecutive
sentences, that the trial court considered an improper aggravator, that his offense was a
single episode of criminal conduct under Indiana Code Section 35-50-1-2, and that the
trial court failed to give proper reasons for his sentence. The trial court found that
Newson’s claims did not involve sentencing errors that were clear from the face of the
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judgment and that such claims cannot be raised in a motion to correct erroneous sentence.
Consequently, the trial court denied Newson’s motion. Newson then filed a motion to
correct error, which the trial court also denied. Newson now appeals.
Analysis
Newson argues that the trial court erred by denying his motion to correct
erroneous sentence. When reviewing a trial court’s denial of a motion to correct an
erroneous sentence, we defer to the trial court’s factual findings and review such decision
for an abuse of discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An
abuse of discretion will be found only when the trial court’s decision is against the logic
and effect of the facts and circumstances before it. Id. However, the trial court’s legal
conclusions are reviewed under a de novo standard of review. Id.
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:
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 erroneous sentence may be filed only to address a sentence that is
“ʻerroneous on its face.’” Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008) (quoting
Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004)). Other sentencing errors must be
addressed via direct appeal or post-conviction relief. Id. In addition, a motion to correct
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erroneous sentence may only arise out of information contained on the formal judgment
of conviction, not from the abstract of judgment. Id. If the county does not issue
judgments of conviction, such as in Marion County, then the trial court’s abstract of
judgment will serve as an appropriate substitute for purposes of making the claim. Id.
The State first argues that Newson waived his argument by failing to include the
Marion County abstract of judgment in his appendix. The abstract of judgment is
necessary for this court to consider Newson’s claims because Newson can only raise
claims that are evident on the face of the abstract of judgment. Notwithstanding
Newson’s failure to include the abstract of judgment, we will address his claims based on
the sentencing statement included in the Chronological Case Summary (“CCS”).
Newson argues that: (1) his offenses were part of a single episode of criminal conduct
and, thus, his sentence violated Indiana Code Section 35-50-1-2; (2) the trial court erred
by imposing consecutive sentences; (3) the sentencing statement was insufficient to
support the sentence; and (4) the trial court relied on improper aggravators. Each of these
contentions requires consideration of evidence that is not available on the face of the
abstract of judgment or the CCS’s entry regarding the sentencing. Thus, these arguments
are improper in a motion to correct erroneous sentence. The trial court did not abuse its
discretion when it denied Newson’s motion to correct erroneous sentence.
Conclusion
The trial court properly denied Newson’s motion to correct erroneous sentence.
We affirm.
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Affirmed.
CRONE, J., and PYLE, J., concur.
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