Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 20 2012, 9:28 am
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APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
JOHN CHUPP GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN CHUPP, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1206-CR-328
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
Cause No. CR82-81A (82002401)
December 20, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, John Chupp (Chupp), appeals the trial court’s denial of his
motion to correct erroneous sentence.
We affirm.
ISSUE
Chupp raises one issue on appeal which we restate as: Whether the trial court
properly denied his motion to correct erroneous sentence.
FACTS AND PROCEDURAL HISTORY
For the recitation of the facts we rely on our supreme court’s opinion in Chupp’s
direct appeal:
At trial the evidence showed that L.M., a 72-year-old widow, was
awakened around 11:30 p.m. on July 10, 1982 by three men who crashed
through her bedroom door. They demanded to know where her money was
kept, and she told them it was downstairs. One of the men found her purse
but it contained only thirty-one dollars. To force her to reveal the location
of the rest of her money, one of the men burned her hand with a cigarette
lighter. L.M. tried to explain that she had just returned from vacation and
that thirty-one dollars was all she had. One of the men directed the other
two to ransack the house. The remaining man raped L.M. and then one of
the men sodomized her.
The men bound and gagged L.M. and finished searching the house. The
victim was not found until noon the following day when her son-in-law
discovered her. An ambulance transported her to a hospital where a
medical examination revealed that L.M. had suffered bruises, lacerations,
blisters, and swelling. She lost her purse with thirty-one dollars, her lock
box containing personal papers and silver coins, and her maroon car.
Chupp v. State, 509 N.E.2d 835, 836 (Ind. 1987). Chupp was identified as one of
the perpetrators. Id. On July 10, 1982, the State charged Chupp with burglary, a
Class A felony; two Counts of rape, Class A felonies; two Counts of criminal
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deviate conduct, Class A felonies; robbery, a Class A felony; and criminal
confinement, a Class B felony. At the conclusion of Chupp’s jury trial, he was
found guilty of burglary, a Class A felony; robbery, a Class A felony; and criminal
confinement, a Class B felony. The trial court sentenced Chupp to concurrent
fifty-year sentences for each Class A felony and to twenty years for the Class B
felony, to run consecutive to the Class A felonies, for an aggregate sentence of
seventy years. After pursuing a direct appeal, Chupp’s convictions and sentences
were affirmed by our supreme court. See id.
On two separate occasions, Chupp filed a petition for post-conviction relief,
each of which was withdrawn without prejudice. On April 24, 2007, Chupp filed
a third petition for post-conviction relief, asserting newly discovered evidence and
claiming that his sentence was erroneous because the robbery and burglary
convictions were enhanced based on the same injuries. The post-conviction court
denied his petition. On appeal, we denied most of Chupp’s claims but concluded
that the elevation of both the burglary and robbery count to Class A felonies was
based on the same injuries and thus violated the principles of double jeopardy.
See Chupp v. State, 933 N.E.2d 586,*5 (Ind. Ct. App. 2010) (unpublished
opinion). We vacated Chupp’s conviction for robbery as a Class A felony and
directed the post-conviction court to enter judgment on the robbery conviction as a
Class C felony and to resentence him accordingly. See id. at *10. On January 20,
2011, the trial court modified Chupp’s Class A felony robbery conviction to a
Class C felony, vacated the fifty year sentence and imposed an eight year sentence
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to run concurrent to the fifty year sentence of the Class A felony burglary
conviction, and consecutive to the twenty year sentence for the Class B felony
criminal confinement, for an aggregate sentence of seventy years.
On June 13, 2012, Chupp filed a motion to correct erroneous sentence,
alleging that his conviction for both robbery, a Class C felony, and criminal
confinement, a Class B felony, violated the double jeopardy doctrine. The trial
court denied Chupp’s motion on the same day.
Chupp now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Chupp contends that the trial court abused its discretion by denying his motion to
correct erroneous sentence. When reviewing a trial court’s ruling on a motion to correct
erroneous sentence, we defer to the trial court’s factual findings and review its decision
only for an abuse of discretion. Newson v. State, 851 N.E.2d 1287, 1289 (Ind. Ct. App.
2006). We review its legal conclusions de novo. Id.
Our supreme court discussed the legal significance of a motion to correct
erroneous sentence at length in Robinson v. State, 805 N.E.2d 783 (Ind. 2004). In
Robinson, the court noted that a motion to correct sentence derives from Indiana Code
section 35-38-1-15 and its purpose is to provide prompt, direct access to an
uncomplicated legal process for correcting the occasional erroneous or illegal sentence.
Id. at 785. Such a motion may only be used to correct erroneous sentencing errors that
are clear from the face of the judgment imposing the sentence in light of the statutory
authority. Id. at 787. Claims that require consideration of the proceedings before,
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during, or after trial may not be presented by way of a motion to correct sentence. Id. at
787.
Chupp relies on Robinson to support his argument that a double jeopardy claim
can be addressed in a motion to correct erroneous sentence. However, Chupp
mischaracterizes the Robinson court’s holding. In analyzing the applicability of a motion
to correct erroneous sentence, the court observed that it had in Mitchell v. State, 726
N.E.2d 1228, 1243 (Ind. 2000) “addressed a double jeopardy claim presented by a motion
to correct sentence.” Robinson, 805 N.E.2d at 787. But, the Robinson court clearly
rejected this approach in Mitchell, noting that “[u]se 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.” Id.
Accordingly, when strictly construing the application of a motion to correct
erroneous sentence, we must necessarily affirm the trial court’s denial of Chupp’s
motion. A double jeopardy claim is a challenge to the validity of a defendant’s
conviction, not to the validity of a sentence. See, e.g., Mapp v. State, 770 N.E.2d 332,
334 (Ind. 2002). In its review of a perceived double jeopardy violation, a court must
analyze the elements of the offense and the evidence used to establish those elements.
See Richardson v. State, 717 N.E.2d 32, 50-53 (Ind. 1999). It is clear that such a review
would surpass the mere sentencing error that is clear from the face of the judgment and
would require us to consider the charging information and proceedings during trial. We
affirm the trial court.
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CONCLUSION
Based on the foregoing, we affirm the trial court’s denial of Chupp’s motion to
correct erroneous sentence.
Affirmed.
BAKER, J. and BARNES, J. concur
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