Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
Jul 03 2013, 7:04 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.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
KEVIN GOVAN GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN GOVAN, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1302-CR-60
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-0411-FB-196
July 3, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Kevin Govan, pro se, appeals the trial court’s denial of his motion to correct
erroneous sentence. Govan raises one consolidated issue on appeal, which we restate as
whether the trial court abused its discretion by denying his motion. Concluding that
Govan claimed errors that were not facially apparent from the judgment and that the trial
court therefore did not abuse its discretion in denying the motion, we affirm.
Facts and Procedural History
On June 24, 2005, the trial court sentenced Govan to fifteen years on count I,
criminal confinement as a Class B felony, with an additional five years in part 2 for use
of a firearm; fifteen years on count II, criminal confinement as a Class B felony, with an
additional five years in part 2 for use of a firearm; fifteen years on count III, unlawful
possession of a firearm by a serious violent felon as a Class B felony; and two years on
count IV, theft as a Class D felony. For the enhancements in the second parts of counts I
and II, the court found that Govan had committed offenses in those counts while using a
firearm, in violation of Indiana Code section 35-50-2-11. The court ordered the
sentences in counts I and II to run consecutively, and the sentences in counts III and IV to
run concurrently, for an aggregate sentence of forty years imprisonment. On January 17,
2013, Govan filed a motion to correct erroneous sentence. On January 31, 2013, the trial
court denied Govan’s motion without a hearing. This appeal followed.1
1
We note that Govan did not include an appendix with his appeal. Because of the limited scope of a
motion to correct erroneous sentence, and because the judgment of conviction was attached to Govan’s brief, we
will address his claims. We also note that Govan’s motion to correct erroneous sentence is therefore absent from
our record. While claims not raised below may not be raised for the first time on appeal, because of our resolution
of Govan’s issue, we assume that Govan’s claims here were raised with the trial court in his motion. See Emerson
v. State, 812 N.E.2d 1090, 1098-99 (Ind. Ct. App. 2004) (“Issues not raised in a petition for post-conviction relief
may not be raised for the first time on appeal.”); see also Govan v. State, 969 N.E.2d 634, No. 02D04–0411–FB–
2
Discussion and Decision
I. Standard of Review
We review a trial court’s decision on a motion to correct erroneous sentence only
for abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010). An
abuse of discretion occurs when the trial court’s decision is against the logic and effect of
the facts and circumstances before it. Id.
II. Motion to Correct Erroneous Sentence
A criminal defendant who believes he or she has been erroneously sentenced may
file a motion to correct sentence pursuant to Indiana Code section 35-38-1-15. However,
the Indiana Supreme Court has held that a motion to correct sentence may properly be
used only “to correct sentencing errors that are clear from the face of the judgment
imposing the sentence in light of the statutory authority. Claims that require
consideration of the proceedings before, during, or after trial may not be presented by
way of a motion to correct sentence.” Robinson v. State, 805 N.E.2d 783, 787 (Ind.
2004). The court further stated that the motion to correct sentence is an improper remedy
for any sentencing claims that are not facially apparent; such claims may be raised only
on direct appeal, and by post-conviction proceedings where appropriate. Id.
Govan first argues that the court erred when sentencing him to an aggregate of
forty years, because Indiana Code section 35-50-1-2(c) caps consecutive terms of
imprisonment at the advisory sentence for a felony one class higher than the most serious
felonies of which the defendant was convicted. Here, Govan’s most serious felony was a
196 (Ind. Ct. App. June 22, 2012) (Govan has been made aware of this in a previous appeal from a motion to correct
erroneous sentence), trans. denied.
3
Class B felony, and the advisory sentence for the next higher class of felony, Class A, is
thirty years. Ind. Code § 35-50-2-4. However, Indiana Code section 35-50-1-2(c) only
imposes this cap for convictions arising out of an episode of criminal conduct and for
crimes that are not defined as crimes of violence. An “episode of criminal conduct” is
defined as “offenses or a connected series of offenses that are closely related in time,
place, and circumstance.” Ind. Code § 35-50-1-2(b).
Govan claims that his crimes all arose out of an episode of criminal conduct, and
appears to assume this based on the fact that he was sentenced under a single cause
number with multiple counts. However, that is not the test for whether crimes fit the
definition of an episode of criminal conduct. See, e.g., Reeves v. State, 953 N.E.2d 665,
671 (Ind. Ct. App. 2011) (“Separate offenses are not part of a single ‘episode of criminal
conduct’ when a full account of each crime can be given without referring to the other
offenses.” (citation omitted)), trans. denied; Gootee v. State, 942 N.E.2d 111, 114-15
(Ind. Ct. App. 2011) (holding that the appellant’s offenses did not constitute an episode
of criminal conduct even though some of the incidents occurred within minutes of each
other at the same location), trans. denied.2 Because a determination of whether Govan’s
crimes were part of an episode of criminal conduct cannot be made without a
consideration of the record, there is no facially apparent error in Govan’s forty year
aggregate sentence.
Govan also argues that the court wrongly sentenced him to additional fixed terms
of imprisonment of five years on each of counts I and II, under Indiana Code section 35-
2
For Govan’s edification, we note that each of these cited cases had a single cause number and multiple
charged counts in the lower court, as is standard.
4
50-2-11. Whether Govan met the requirements of that code section is also not something
that is apparent on the face of the judgment of conviction.3
Conclusion
Concluding that the trial court did not abuse its discretion when it denied Govan’s
motion to correct erroneous sentence, we affirm.
Affirmed.
FRIEDLANDER, J., and CRONE, J., concur.
3
To the extent that Govan argues that the judgment of conviction indicates that the judge, rather than a
jury, found that the elements of the statute were met, Govan appears to read too much into the judgment of
conviction. The judgment of conviction notes that the “Court finds defendant committed offenses . . . in violation of
IC 35-50-2-11.” Brief of Appellant at 11. However, a reference to the “court” here does not imply that the judge
improperly played a role reserved for the jury. Relevantly, we note that the boilerplate wording of the fill-in-the-
blank judgment of conviction form used here states that the defendant was found guilty following a jury trial, and
then goes on to state that the court considered the evidence and found defendant guilty. There is no facially apparent
error in the judgment of conviction here.
5