Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, Oct 14 2014, 9:45 am
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
CHRISTOPHER KIMBRELL GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
LYUBOV GORE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHRISTOPHER KIMBRELL, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1311-CR-1002
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Amy Barbar, Magistrate
Cause No. 49G02-0406-PC-105656
October 14, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Christopher Kimbrell, pro se, appeals the trial court’s denial of his motion to correct
erroneous sentence. Because Kimbrell’s argument requires consideration of matters
beyond the face of the sentencing judgment, a motion to correct erroneous sentence was
not the appropriate means for Kimbrell to use. Accordingly, the trial court properly denied
Kimbrell’s motion.
Facts and Procedural History
In 2006 Kimbrell was convicted of two counts of Class A felony child molesting
and one count of Class C felony child molesting for molesting his biological daughter. The
trial court sentenced him to twenty-five years for each of the Class A felonies and four
years for the Class C felony. Finding that Kimbrell’s criminal history outweighed any
mitigators, the court ordered the sentences for the two Class A felonies to be served
consecutively; the sentence for the Class C felony was to be served concurrently.
On direct appeal, Kimbrell argued that the trial court abused its discretion when it
imposed consecutive sentences for the Class A felonies because the court failed to
articulate its reasons for doing so. Kimbrell v. State, No. 49A02-0608-CR-711 (Ind. Ct.
App. June 20, 2007). We concluded that the trial court had articulated its reasons for
imposing consecutive sentences and affirmed Kimbrell’s fifty-year sentence. Id.
Kimbrell later filed a petition for post-conviction relief, which the post-conviction
court denied. Kimbrell appealed, and we affirmed the post-conviction court. Kimbrell v.
State, No. 49A02-1008-PC-1012 (Ind. Ct. App. Aug. 12, 2011), trans. denied.
2
In November 2013 Kimbrell, pro se, filed a motion to correct erroneous sentence
arguing that the trial court “erroneously sentenced [him] to consecutive 25 years [sic]
sentences.” Appellant’s App. p. 47. He asserted that the court “did not explain why the
aggravating circumstances warranted consecutive sentences as opposed to enhanced
concurrent sentences.” Id. at 51. The trial court denied Kimbrell’s motion to correct
erroneous sentence because his claim did
not involve sentencing errors that are clear from the face of the judgment.
He is questioning the validity of the consecutive sentence imposed herein
based upon the Court’s allocution of the reasons for the sentence. These
claims may be raised only on direct appeal (as indeed this claim was raised
by appellate counsel and rejected by the Court of Appeals) or, where
appropriate, in post-conviction relief proceedings.
Id. at 46.
Kimbrell now appeals.
Discussion and Decision
Kimbrell contends that the trial court erred in denying his motion to correct
erroneous sentence. An inmate who believes that he 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.
See also Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008). The purpose of Section 35-38-
1-15 “is to provide prompt, direct access to an uncomplicated legal process for correcting
the occasional erroneous or illegal sentence.” Robinson v. State, 805 N.E.2d 783, 785 (Ind.
3
2004). Accordingly, a motion to correct sentence may only be filed to address a sentence
that is “erroneous on its face.” Neff, 888 N.E.2d at 1251. 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, 805 N.E.2d at 787. Sentencing errors that are not facially
apparent must be addressed promptly via direct appeal and thereafter via post-conviction
relief proceedings where applicable. Id.
Kimbrell does not allege that his sentence is facially erroneous. In fact, he did not
include the sentencing judgment in his appendix. Instead, he argues that his sentence is
erroneous because the trial court abused its discretion in sentencing him to consecutive
terms. See Appellant’s Br. p. 7 (“The trial court found that the aggravating factors
outweighed the mitigating factors and sentenced Kimbrell to 25 years for each count and
ordered the sentences to run consecutively, for a total of 50 years. But the trial court did
not explain why the aggravating circumstances warranted consecutive sentences as
opposed to enhanced concurrent sentences.”). This argument, however, clearly falls
outside the parameters of Section 35-38-1-15. Resolution of this issue requires us to look
beyond the face of the judgment and the applicable statutory authority. See, e.g., Robinson,
805 N.E.2d at 786 (motion to correct erroneous sentence is not available for claims
concerning how the trial court weighed factors in imposing sentence). Because the motion
to correct erroneous sentence was not the appropriate means to challenge his sentence, the
trial court properly denied Kimbrell’s motion.1
1
In addition, we note that this claim is barred by res judicata. Kimbrell raised this same issue on
direct appeal, and we decided it against him. See Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013) (res
judicata aims to prevent repetitious litigation of disputes that are essentially the same by holding a prior
final judgment binding against both the original parties and their privies).
4
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
5