MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 15 2015, 9:21 am
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
Dwight Neal Gregory F. Zoeller
Westville, Indiana Indianapolis, Indiana
Appellant pro-se
Karl M. Scharnberg
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dwight Neal, October 15, 2015
Appellant-Defendant, Court of Appeals Case No.
71A05-1411-CR-559
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jerome Frese,
Appellee-Plaintiff Judge
Trial Court Cause No.
71D03-1107-FB-101
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 71A05-1411-CR-559 | October 15, 2015 Page 1 of 5
[1] Dwight Neal, pro se, appeals the denial of his motion to correct erroneous
sentence. Neal lists six issues for review but then provides no authority, no
citations to the record, and no cogent reasoning. Accordingly, we find the
issues presented in his appellate brief waived.
[2] We affirm.
Facts & Procedural History
[3] Following Neal’s guilty plea to class B felony burglary, the trial court sentenced
him, on February 22, 2012, to eighteen years. The court ordered six of those
years executed and twelve suspended. With respect to probation, the court
directed that the first six years (following the executed term) be served in prison
as a condition of probation. In its order, the court urged Neal to enroll in the
CLIFF program while in prison and then indicated:
Court is expressly anticipating that if the Defendant has
completed the six year executed sentence and is in the CLIFF
program or eligible for the CLIFF program, then it is the Court’s
intention to have him remain in the Department of Correction
until he can finish the CLIFF program.
If the Defendant has already finished CLIFF and completed the
six year executed sentence, while the Court is ordering the
Defendant remain in the Department of Correction as a
condition of probation, it would be the Court’s express intention
to ask DuComb to reconsider the Defendant at that time for a
transfer of placement as a condition of probation from DOC to
work release or whatever program DuComb deems appropriate.
Court of Appeals of Indiana | Memorandum Decision 71A05-1411-CR-559 | October 15, 2015 Page 2 of 5
Sentencing Order (appended to Appellant’s Brief at 7).
[4] After an unsuccessful petition for change of placement, Neal filed a motion for
modification of placement on April 28, 2014. Thereafter, on October 21, 2014,
Neal filed a motion to correct erroneous sentence. On October 27, 2014, the
trial court issued an order denying the motion to correct erroneous sentence
and, with respect to the motion for modification of placement, indicated that it
would request a DOC progress report before further addressing the motion.1
Neal appeals from the denial of his motion to correct erroneous sentence.
Discussion & Decision
[5] Pro se litigants are held to the same standard as trained counsel and are
required to follow procedural rules. Hollen v. State, 994 N.E.2d 1166, 1169 (Ind.
Ct. App. 2013). Specifically, an appellant must present arguments on appeal
that are supported by cogent reasoning and citations to proper authorities,
statutes, and relevant portions of the Record on Appeal. Ind. Appellate Rule
46(A)(8)(a). Failure to meet this requirement results in waiver. See Hollen, 994
N.E.2d at 1169.
[6] Neal lists six issues for review but then addresses only one or two in his
summary of argument section. Throughout his brief, Neal cites no authority
1
At some point during his pro se filings with the trial court, Neal filed an unsuccessful habeas corpus petition
in federal court. On January 27, 2015, the trial court issued an order declining to consider the pending
motion for modification of placement until the appeal regarding the legality of Neal’s sentence is complete.
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and provides no citation to the record. The entirety of his argument section is
as follows:
The District Court cannot add additional 6 years to the defendant
[sic] sentence and make it exessive [sic]. The statue [sic] of a
class B, Felony is 6 to 20 years. By adding additional 6 years to
the defendant sentence it makes his sentence a 22 year sentence.
Which the defendant would have to do 6 years on his 12 year
plea-agreement and 16 years probation when release [sic] from
incarceration.
The courts cannot take away or deny the defendant purposeful
incarceration after he was sentence [sic] to a program and
completed that was ordered by the courts.
If all Legal documents are reveiwed [sic] it will show that the
district court Erred on factual issues[.] This court is enable [sic]
to conclude that substantial claim is presented and that there are
disputed issues of material fact in this Brief.
Appellant’s Brief at 5. Because Neal has wholly failed to put forth a cogent
argument supported by authority and citations to the record, we conclude that
his appellate arguments are waived.
[7] Waiver notwithstanding, we observe that the trial court properly denied the
motion to correct erroneous sentence.2 While suspended sentences are
2
Such a motion “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).
Accordingly, claims that require consideration of matters outside the face of the sentencing judgment may
not be addressed via this type of motion. To the extent Neal’s arguments are based on his motion for
modification of placement, we observe that any ruling on that motion is not before us for review.
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traditionally served outside the confines of prison, “[t]he law is clear that a trial
court may suspend a sentence, place a defendant on probation, and then order a
term of imprisonment as a condition of probation.” Sutton v. State, 562 N.E.2d
1310, 1313 (Ind. Ct. App. 1990), trans. denied, cert. denied, 502 U.S. 987 (1991).
See also Ind. Code § 35–38–2–2.3(c) (“[a]s a condition of probation, the court
may require that the person serve a term of imprisonment in an appropriate
facility at the time or interval (consecutive or intermittent) within the period of
probation the court determines”); Strowmatt v. State, 779 N.E.2d 971, 976-77
(Ind. Ct. App. 2002) (upholding a similar sentence as authorized by I.C. § 35–
38–2–2.3).
[8] Judgment affirmed.
[9] Riley, J., and Brown, J., concur
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