MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 18 2015, 9:07 am
Memorandum Decision shall not 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
Allenn Peterson Gregory F. Zoeller
New Castle, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Allenn Peterson, March 18, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1408-CR-304
v. Appeal from the Lake Superior
Court
The Honorable Salvador Vazquez,
State of Indiana, Judge
Appellee-Plaintiff The Honorable Natalie Bokota,
Judge
Cause No. 45G01-8103-CR-034
Friedlander, Judge.
[1] Allenn Peterson appeals the denial of his pro se motion to correct erroneous
sentence, claiming that the trial court lacked statutory authority to impose
consecutive sentences.
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[2] We affirm.
[3] On March 11, 1981, Peterson murdered Robert Watkins and then raped and
robbed Watkins’s mother when she arrived home later that evening. Peterson
was subsequently convicted of murder, class A felony rape, and class B felony
robbery. He was sentenced to forty-five years for murder, thirty-five years for
rape, and thirty years for robbery. The sentences for murder and rape were
ordered to be served consecutively. His convictions were upheld on direct
appeal and post-conviction relief. See Peterson v. State, 453 N.E.2d 196 (Ind.
1983); Peterson v. State, 650 N.E.2d 339 (Ind. Ct. App. 1995).
[4] On August 4, 2014, Peterson filed a motion to correct erroneous sentence. The
trial court promptly denied the motion, noting that the sentence was not
erroneous on its face. Peterson now appeals.
[5] A motion to correct erroneous sentence derives from Ind. Code Ann. § 35-38-1-
15 (West, Westlaw current with all legislation of the 2015 First Regular Session
of the 119th General Assembly effective through February 23, 2015):
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.
“The purpose of the statute is to provide prompt, direct access to an
uncomplicated legal process for correcting the occasional erroneous or illegal
sentence.” Davis v. State, 937 N.E.2d 8, 10 (Ind. Ct. App. 2010), trans. denied.
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[6] “[A] motion to correct sentence may only be used to correct sentencing errors
that are clear from the face of the judgment imposing the sentence in light of the
statutory authority.” Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). In
other words, use of this statutory motion should be reserved for the correction
of “obvious sentencing errors”. Id. at 787 n.3. Claims that require
consideration of matters outside the face of the sentencing judgment may not be
addressed via this type of motion. See, e.g., Neff v. State, 888 N.E.2d 1249 (Ind.
2008); Robinson v. State, 805 N.E.2d 783.
[7] In his motion, Peterson argued that the trial court lacked statutory authority to
impose consecutive sentences “because [his] offenses all derived from a single
episode of criminal conduct”. Appellant’s Appendix at 11. He cited Ind. Code
Ann. § 35-50-1-2 (West, Westlaw current with all legislation of the 2015 First
Regular Session of the 119th General Assembly effective through February 23,
2015) in support of his argument, which imposes an aggregate sentencing cap
for felony convictions (except convictions for crimes of violence) arising out of
an episode of criminal conduct.
[8] Peterson’s motion lacks merit for several reasons. Most notably, because a
determination of whether the crimes arose out of an episode of criminal
conduct cannot be made without looking beyond the sentencing judgment1 to
the facts underlying each conviction, there is no facially apparent error in
1
In fact, Peterson has not even included the sentencing judgment in the record. In light of the prior appeals,
however, we were able to determine the sentence imposed.
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Peterson’s eighty-year sentence. The argument, therefore, may not be raised in
a motion to correct sentence.
[9] Furthermore, the statutory provision upon which Peterson relies did not exist
until 1994. See Slone v. State, 652 N.E.2d 552, 562 (Ind. Ct. App. 1995) (the
episode of criminal conduct limitation is “part of a legislative amendment to the
statute which was added in 1994 and which represents a previously nonexistent
restraint upon a trial court’s discretion when imposing consecutive sentences”),
trans. denied. Even if it had existed in 1981, the statutory limitation has always
been inapplicable to murder.
[10] Judgment affirmed.
Kirsch, J., and Crone, J., concur.
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