Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Sep 10 2014, 9:07 am
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:
ROY AUSTIN SMITH GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROY AUSTIN SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1312-CR-1091
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. CR81-017E
September 10, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Roy Austin Smith appeals the trial court’s denial of his motion to correct
erroneous sentence. We affirm.
FACTS
In 1982, Smith was convicted of murder and was found to be an habitual offender.
He was sentenced to an executed term of sixty years for the murder, enhanced by thirty
years for the habitual offender finding. On September 18, 1984, our Supreme Court
affirmed his conviction and sentence. Smith v. State, 468 N.E.2d 512 (Ind. 1984). On
September 21, 2007, Smith filed a pro se petition for post-conviction relief. On
September 11, 2012, the post-conviction court denied Smith’s petition, and on May 23,
2013, this Court affirmed the denial of the petition. Smith v. State, No. 49A02-1209-PC-
783, memo op. (Ind. Ct. App. May 23, 2013). On December 9, 2013, approximately
thirty years after his murder conviction and sentencing, Smith filed a motion to correct
erroneous sentence. The trial court denied his motion the same day. Smith now appeals.
DISCUSSION AND DECISION
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
abuse of discretion occurs when the trial court’s decision is against the logic and effect of
the facts and circumstances before it. Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App.
1999).
2
Smith argues that the trial court erred in denying his motion to correct erroneous
sentence and contends that his sentence is illegal because his penalty was increased
without the jury finding aggravating factors beyond a reasonable doubt.
Notwithstanding this contention, Smith’s claims are not properly presented in a
motion to correct erroneous sentence. It is true that an inmate who believes he has been
erroneously sentenced may file a motion to correct the sentence pursuant to Indiana Code
section 35-38-1-15.1 Neff v. State, 888 N.E.2d 1249, 1250-51 (Ind. 2008). However, in
Robinson v. State, 805 N.E.2d 783 (Ind. 2004), our Supreme Court addressed the
difference between a motion to correct erroneous sentence and a petition for post-
conviction relief, holding that:
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. 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 henceforth be
strictly applied.
Id. at 787. In other words, 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.
1
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.”
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Here, Smith’s allegation that his sentence is illegal because his penalty was
increased without the jury finding aggravating factors beyond a reasonable doubt requires
consideration of matters outside the face of the sentencing judgment. Therefore, we find
that a motion to correct erroneous sentence was an improper vehicle for Smith’s
arguments.
We also note that, as this argument was available to Smith at the time he filed his
petition for post-conviction relief, and he failed to raise it, it is waived in subsequent
post-conviction proceedings. See Poling v. State, 740 N.E.2d 872, 884 (Ind. Ct. App.
2000). Moreover, when reaching the substance of Smith’s argument, we find that it is
without merit. Smith argues that Blakely v. Washington, 542 U.S. 296 (2004), should be
retroactively applied to his case to afford him relief. In Blakely, the Supreme Court of
the United States held that defendants have a Sixth Amendment constitutional right to
have a jury, prior to sentencing, determine all punishment-increasing facts. Id. Smith
argues that the sentence violated his Sixth Amendment right to a jury because his penalty
was increased without the jury finding aggravating facts beyond a reasonable doubt.
However, our Supreme Court held in Smylie v. State that it would only apply Blakely to
cases on direct review at the time Blakely was announced. 823 N.E.2d 679, 690-91 (Ind.
2005). As Smith’s direct appeal was decided in 1984, his case would not have been on
direct review in 2004, when Blakely was announced. Smith, 468 N.E.2d at 512.
Therefore his argument also fails on the merits.
4
The judgment of the trial court is affirmed.
KIRSCH, J., and ROBB, J., concur.
5