MEMORANDUM DECISION
May 22 2015, 9:17 am
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,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Rodney S. Perry, Sr. Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rodney S. Perry, Sr., May 22, 2015
Appellant-Defendant, Court of Appeals Case No. 45A04-
1409-CR-435
v. Appeal from the Lake Superior
Court
The Honorable Clarence D. Murray,
State of Indiana, Judge
Appellee-Plaintiff Cause No. 45G02-9701-CF-2
Bradford, Judge.
Case Summary
[1] In 1997, Appellant-Defendant Rodney Perry pled guilty to two counts of Class
A felony voluntary manslaughter. His convictions and sentence were affirmed
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on direct appeal and again following a 2006 petition for post-conviction relief
(“PCR”). On August 19, 2014, Perry filed a motion to correct erroneous
sentence, which was denied by trial court. Perry appeals the trial court’s denial
of his motion. We affirm.
Facts and Procedural History
[2] The underlying facts of this case were summarized as follows in Perry’s direct
appeal:
On January 6, 1997, Perry broke into the house of his estranged wife,
Marsheila Perry, after his mother-in-law, Florida Clark, refused to let
him in. Marsheila struck Perry with a baseball bat, but Perry then took
the bat away. When Clark attempted to make a phone call, Perry
struck her in the head with the bat at least four times. He then struck
Marsheila in the head with the bat at least five times. Both Clark and
Marsheila died. Perry’s three children were present when he killed
Clark and Marsheila.
The State charged Perry with two counts of murder. On June 26,
1997, Perry agreed to plead guilty to two counts of Class A felony
voluntary manslaughter. The agreement left sentencing entirely to the
trial court’s discretion....
On July 24, 1997, the trial court sentenced Perry to thirty-five years for
each voluntary manslaughter conviction, to be served consecutively for
a total sentence of seventy years. On July 14, 2000, Perry filed a
petition for post-conviction relief (“PCR”), which alleged, inter alia,
that the trial court abused its discretion in sentencing him. On May 1,
2001, the trial court granted Perry permission to withdraw his PCR
petition without prejudice. It does not appear that Perry ever refiled a
PCR petition. However, on February 2, 2005, Perry filed a motion to
correct erroneous sentence, which the trial court denied on February
25, 2005. On June 28, 2005, Perry filed a verified petition for leave to
file a belated notice of appeal, which the trial court granted the same
day….
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Perry v. State, 845 N.E.2d 1093, 1094-95 (Ind. Ct. App. 2006).
[3] On direct appeal, Perry argued that the trial court abused its discretion in
imposing a seventy-year sentence and that the sentence was inappropriate in
light of the nature of the offenses and his character. Id. at 1096. We affirmed
Perry’s sentence. Id. at 1097.
[4] On October 20, 2006, Perry filed a PCR petition in which he argued that his
trial and appellate counsel rendered ineffective assistance. Perry v. State, 904
N.E.2d 302, 306 (Ind. Ct. App. 2009). The PCR court denied Perry’s petition
and this court affirmed that decision on appeal. Id. at 312.
[5] On August 19, 2014, Perry filed a motion to correct erroneous sentence,
arguing that the trial court failed to properly consider his guilty plea to be a
mitigating factor during sentencing. The trial court denied Perry’s motion.
Discussion and Decision
[6] The basis for a motion to correct an erroneous sentence is Indiana Code section
35-38-1-15, which reads as follows:
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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[7] In Robinson v. State, 805 N.E.2d 783 (Ind. 2004), the Indiana Supreme Court
addressed the manner in which a motion to correct an erroneous sentence may
be used.
While the motion to correct sentence is available as an alternate
remedy, we have repeatedly cautioned that it is appropriate only when
the sentence is erroneous on its face…. [T]he motion to correct
sentence could be used to correct errors such as illegal sentences in
violation of express statutory authority or an erroneous interpretation
of a penalty provision of a statute, but would not be available for
claims raising constitutional issues or issues concerning how the trial
court weighed factors in imposing sentence.
***
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…. We therefore hold
that 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. Claims that require
consideration of the proceedings before, during, or after trial may not
be presented by way of a motion to correct sentence.
***
In addition to limiting a motion to correct sentence to errors apparent
on the face of the judgment, Indiana case law has long emphasized
that the preferred procedure is by way of a petition for post-conviction
relief…. As to sentencing claims not facially apparent, the motion to
correct sentence is an improper remedy. Such claims may be raised
only on direct appeal and, where appropriate, by post-conviction
proceedings.
Id. at 786-87 (citations and quotations omitted).
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[8] Perry claims that his sentence was erroneous because the trial court failed to
consider his guilty plea as a mitigating factor. This argument fails, for one,
because it does not raise a claim that the sentence is facially erroneous. In order
to determine the validity of Perry’s claim, we would have to look beyond the
sentencing order, which is not appropriate on review of a motion to correct an
erroneous sentence. Id. For that reason, the trial court properly denied Perry’s
motion.
[9] Additionally, Perry’s motion must be denied based on the doctrine of res
judicata.
The doctrine of res judicata prevents the repetitious litigation of that
which is essentially the same dispute. [Ben-Yisrayl v. State, 738 N.E.2d
253, 258 (Ind. 2000)]. Res judicata mandates that when an appellate
court decides a legal issue, both the trial court and the court on appeal
are bound by that determination in any subsequent appeal involving
the same case and relatively similar facts. Badger v. State, 754 N.E.2d
930, 935 (Ind. Ct. App. 2001) (citing State v. Huffman, 643 N.E.2d 899,
901 (Ind. 1994)).
Saunders v. State, 794 N.E.2d 523, 527 (Ind. Ct. App. 2003).
[10] In his direct appeal, Perry argued that “The trial court failed to identify the
significant aggravating and mitigating circumstances and did not balance the
aggravators and mitigators.” Perry, 845 N.E.2d at 1097 (citing Appellant’s Br.
p. 6). Perry now makes essentially the same argument––that the sentence is
erroneous for failure by the trial court to consider his guilty plea as a mitigating
factor. Because this argument was raised and ruled on in Perry’s direct appeal,
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we are bound by that determination and Perry is not permitted to re-litigate the
issue.
[11] The judgment of the trial court is affirmed.
Vaidik, C.J., and Kirsch, J., concur.
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