MEMORANDUM DECISION
Sep 15 2015, 8:37 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Clifford M. Davenport Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John F. Philpott, September 15, 2015
Appellant-Defendant, Court of Appeals Case No.
48A02-1412-CR-884
v. Appeal from the Madison County
Circuit Court;
The Honorable Thomas Newman,
State of Indiana, Jr., Judge;
Appellee-Plaintiff. 48D03-9505-CF-161
May, Judge.
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[1] John F. Philpott appeals the denial of his motion to correct erroneous sentence.
We affirm.
Facts and Procedural History 1
[2] On July 6, 1996, Philpott was convicted of one count of Murder 2 and three
counts of Class A felony attempted murder. 3 On September 23, the trial court
sentenced Philpott to fifty years for each count of Class A felony attempted
murder, to be served concurrent with one another but consecutive to a fifty-year
sentence for murder. Philpott filed a direct appeal, and we affirmed.
[3] Starting on November 17, 2004, and continuing until the motion to correct
erroneous sentence now before us, Philpott has filed, pro se, three motions to
correct erroneous sentence, a petition for post-conviction relief, a request to file
a successive petition for post-conviction relief, and two petitions for
modification of sentence. All were denied. He attempted to appeal two of
1
Philpott tendered a brief with over thirty pages of facts and procedural history, detailing each step of
Philpott’s trial court process from the moment he was arrested in 1995. That hindered our review. We
remind counsel of Indiana Appellate Rules 46(A)(5) and 46(A)(6), which state, in relevant part:
(5) Statement of Case. This statement shall briefly describe the nature of the case, the
course of the proceedings relevant to the issues presented for review, and the dispositions
of these issues . . .
(6) Statement of Facts. This statement shall describe the facts relevant to the issues
presented for review but need not repeat what is in the statement of the case.
(Italics in original, bold added for emphasis).
2
Ind. Code § 35-42-1-1 (1993).
3
Ind. Code § 35-42-1-1 (1993) (murder); Ind. Code § 35-41-5-1 (1977) (attempt).
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those decisions, but the appeals were dismissed because Philpott did not file an
appellant’s brief in one and a case summary in the other.
[4] On October 22, 2014, Philpott filed, pro se, his fourth motion to correct
erroneous sentence. On November 24, the trial court conducted a hearing,
during which Philpott and the trial court had this exchange:
THE COURT: Okay. Have you asked the State Public Defender
to represent you on this?
DEFENDANT: No. I can ask one.
THE COURT: You want to go ahead and present it on your
own, Mr. Philpott?
DEFENDANT: (indiscernible) . . . you know I kind of would
rather have a public defender help me out.
THE COURT: Okay.
(Tr. at 4-5.) The trial court then discussed the motion and concluded it would
be best addressed as a successive petition for post-conviction relief. The trial
court then stated, “So there fore [sic] it has to have [sic] a Post Conviction
Relief. So I would. [sic] If I were you I would ask the State Public Defender to
assist you on this, Mr. Philpott. Okay and try to get a subsequent Post
Conviction Petition before the Appeals Court.” (Id. at 8-9.) The trial court
then denied Philpott’s motion. In its order, the trial court appointed a public
defender to “perfect timely appeal.” (App. at 27.)
Discussion and Decision
[5] Our standard of review is well-settled:
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[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
erroneous sentence.
Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Claims that require
consideration of the proceedings are best addressed on direct appeal or as part
of a petition for post-conviction relief, if applicable. Id.
When reviewing a decision on a Motion to Correct Erroneous Sentence, we
“defer to the trial court’s factual findings and review such decision for an abuse
of discretion.” Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An
abuse of discretion occurs when the trial court’s decision is against the logic and
effect of the facts and circumstances before it. Id. The trial court’s legal
conclusions are reviewed de novo. Id.
[6] In his pro se motion to correct erroneous sentence, Philpott argued:
The sentence is inappropriate in light of the nature of the offense and
the character of the offender. The trial court erred by considering
improper aggravating circumstances as a basis for both imposing
consecutive sentences and enhancing the defendant’s sentence. Also,
the trial court did not explain why the aggravating circumstances
warranted consecutive sentences as opposed to enhanced concurrent
sentences. The trial court fell short of the requirement that it explain
its reasons for selecting the sentence imposed.
(App. at 472.) Philpott’s argument concerns information presented at his
sentencing hearing, and thus requires consideration of the “proceedings before,
during, or after trial,” which is not permitted by way of a motion to correct
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erroneous sentence. See Robinson, 805 N.E.2d at 787. Therefore, the trial court
did not abuse its discretion when it denied Philpott’s motion to correct
erroneous sentence because he did not allege an error that was “clear from the
face of the judgment imposing the sentence in light of the statutory authority.”
Id. Accordingly, we affirm. 4
[7] Affirmed.
Crone, J., and Bradford, J., concur.
4
Philpott also argues the trial court denied him his right to counsel under the Sixth Amendment of the
United States Constitution because it did not appoint him counsel when he requested it during the hearing.
However, prior to his conversation regarding possible counsel with the trial court, he argued his sentence
should be corrected so that it was not consecutive, which, in addition to his argument regarding aggravating
and mitigating circumstances in relation to his sentence, is also not a permissible argument by way of a
motion to correct erroneous sentence. Therefore, the outcome would not have been different even if Philpott
had been appointed counsel and any error the trial court committed in not appointing Philpott counsel was
harmless. See Dolezal v. Goode, 433 N.E.2d 828, 835 (Ind. Ct. App. 1982) (trial court error was harmless
because it did not affect the final outcome of the case).
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