MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 17 2016, 8:59 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Robert L. Scott Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Lee Scott, March 17, 2016
Appellant-Defendant, Court of Appeals Case No.
79A02-1510-CR-1799
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams
Appellee-Plaintiff. Trial Court Cause No.
79D01-1507-FB-6
Mathias, Judge.
[1] The Tippecanoe Superior Court denied the motion to correct erroneous
sentence filed by Robert Lee Scott (“Scott”). Scott appeals and presents one
issue for our review, which we restate as whether Scott’s sentence is in
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conformity with the restrictions placed on consecutive sentences by Indiana
Code section 35-50-2-1.3. Concluding that Scott’s claim of sentencing error
requires reference to matters outside the record and is therefore not properly
presented in a motion to correct erroneous sentence, we affirm.
Facts and Procedural History
[2] At a bifurcated trial held on October 8 and 9, 2008, Scott was convicted of
Class C felony battery with a deadly weapon, Class D felony pointing a firearm,
Class A misdemeanor resisting law enforcement, and two counts of Class B
felony possession of a firearm by a serious violent felon. The trial court
sentenced Scott as follows: on the Class C felony conviction, eight years; on the
Class D felony conviction, three years; on the Class A misdemeanor conviction,
one year; and on the two Class B felony convictions, twenty years each. The
trial court ordered the sentences on the Class C and D felonies to be served
concurrently to each other but consecutive to the remaining counts. The trial
court also ordered the sentences on the two Class B felonies to be served
concurrently but consecutive to the other counts. Thus, Scott was sentenced to
an aggregate term of twenty-nine years.
[3] On direct appeal, this court affirmed all of Scott’s convictions save the
conviction for Class D felony pointing a firearm, which we reversed due to
instructional error. Scott v. State, 924 N.E.2d 169, 176-77 (Ind. Ct. App. 2010),
trans. denied. This, however, did not affect Scott’s aggregate sentence because
the sentence on this count was concurrent with the sentence on the class C
felony conviction.
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[4] On June 19, 2015, Scott filed a motion to correct erroneous sentence. The State
responded to Scott’s motion on July 7, 2015, and the trial court denied Scott’s
motion on October 28, 2015. Scott now appeals.
Discussion and Decision
[5] Scott appeals the denial of his motion to correct erroneous sentence. A
defendant may file a motion to correct erroneous sentence pursuant to Indiana
Code section 35-38-1-15,1 which provides:
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.
[6] The purpose of this statute “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. 2004) (citation omitted).
A motion to correct erroneous sentence is appropriate only when the sentencing
error is “clear from the face of the judgment imposing the sentence in light of
the statutory authority.” Id. at 787. Claims that require consideration of the
1
We refer to the sentencing statutes in effect at the time that Scott committed his crimes. See Robertson v.
State, 871 N.E.2d 280, 284 (Ind. 2007) (noting that trial courts sentence a defendant under the sentencing
statutes in effect at the time the defendant committed the offense).
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proceedings before, during, or after trial may not be presented by way of a
motion to correct erroneous sentence. Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct.
App. 2010), trans. denied. Such claims should instead be addressed on direct
appeal or through post-conviction relief. Robinson, 805 N.E.2d at 787. A motion
to correct erroneous sentence is a narrow remedy, and a reviewing court will
strictly apply the requirement of a facially erroneous sentence. Id.
[7] Scott contends that the sentence imposed by the trial court was contrary to the
statutory mandate of Indiana Code section 35-50-2-1.3(c)(1). The version of this
section in effect at the time Scott committed his crimes provided:
(a) For purposes of sections 3 through 7 of this chapter,
“advisory sentence” means a guideline sentence that the court
may voluntarily consider as the midpoint between the maximum
sentence and the minimum sentence.
(b) Except as provided in subsection (c), a court is not required
to use an advisory sentence.
(c) In imposing:
(1) consecutive sentences for felony convictions that are not crimes of
violence (as defined in IC 35-50-1-2(a)) arising out of an episode of
criminal conduct, in accordance with IC 35-50-1-2;
(2) an additional fixed term to an habitual offender under
section 8 of this chapter; or
(3) an additional fixed term to a repeat sexual offender
under section 14 of this chapter;
a court is required to use the appropriate advisory sentence in imposing a
consecutive sentence or an additional fixed term. However, the court is
not required to use the advisory sentence in imposing the sentence for the
underlying offense.
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(d) This section does not require a court to use an advisory
sentence in imposing consecutive sentences for felony
convictions that do not arise out of an episode of criminal
conduct.
Ind. Code § 35-50-2-1.3 (2007) (emphases added). Scott claims that subsection
1.3(c)(1) is applicable to him and that the trial court was therefore “required to
use the advisory sentence in imposing the sentence for the underlying offense.”
[8] To address Scott’s claim, however, we have to determine at least two things: (1)
whether Scott’s crimes were among the statutorily defined crimes of violence,
and (2) whether his convictions arose out of an episode of criminal conduct.
Scott argues that we can determine from the face of the sentencing order that
none of his convictions were “crimes of violence” as defined by Indiana Code
section 35-50-1-2(a) as it existed at the time of his crimes.
[9] While Scott’s first contention is arguably true, we cannot determine whether
Scott’s crimes arose out of an episode of criminal conduct without looking
outside the face of the sentencing order. The fact that Scott’s crimes were all
charged under one cause number is not dispositive of whether his crimes arose
out of an episode of criminal conduct. In determining whether multiple offenses
constitute one episode of criminal conduct, we must look to the timing of the
offenses and the simultaneous and contemporary nature, if any, of the crimes.
Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (citing Reed v. State, 856
N.E.2d 1189, 1200 (Ind. 2006)). We can obtain additional guidance on the
question by considering whether the alleged conduct was so closely related in
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time, place, and circumstance that a complete account of one charge cannot be
related without referring to the details of the other charge. Id.
[10] We cannot consider any of these factors without looking at the facts and
circumstances underlying Scott’s convictions. In other words, we cannot
conclude from the face of the sentencing order and the relevant statutory
authority that Scott’s sentence is erroneous. Accordingly, a motion to correct
erroneous sentence is not the appropriate vehicle to present Scott’s claims of
sentencing error. See Davis, 937 N.E.2d at 11; Robinson, 805 N.E.2d at 787. For
this reason, the trial court properly denied Scott’s motion to correct erroneous
sentence.
[11] Even if a motion to correct erroneous sentence were the proper vehicle for
Scott’s current claim of sentencing error, he would not prevail, for even if we
assume that his crimes were not crimes of violence and arose out of an episode
of criminal conduct, his sentence is not erroneous.
[12] Scott reads Indiana Code section 35-50-2-1.3(c)(1) to mean that the trial court
was required to impose the advisory sentence if it also chose to sentence him to
consecutive sentences. This argument was rejected by our supreme court in
Robertson v. State, 871 N.E.2d 280 (Ind. 2009). In that case, the court held that
section 35-50-2-1.3 “was not meant to impose additional restrictions on a trial
court’s ability to impose consecutive sentences.” Id. at 285-86. Instead, this
section does no more than “retain the fixed maximum sentences permissible
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under the episode [of criminal conduct] . . . provision[]” of Indiana Code
section 35-50-2-1. Id. at 285.
[13] Thus, as interpreted in Robertson, Indiana Code section 35-50-2-1.3(c) means
that when a court is imposing consecutive sentences under Indiana Code
Section 35-50-2-1, the court must “use” the advisory sentence in determining
the statutory cap placed on consecutive sentences for crimes which are not
crimes of violence and which arise out of an episode of criminal conduct.
Pursuant to Indiana Code section 35-50-2-1(c), the total of such consecutive
sentences “shall not exceed the advisory sentence for a felony which is one (1)
class of felony higher than the most serious of the felonies for which the person
has been convicted.”
[14] Here, the most serious of the felonies for which Scott was convicted was Class
B felony possession of a firearm by a serious violent felon. The class of felony
which is one class higher than this is an A felony, for which the advisory
sentence is thirty years. See Ind. Code § 35-50-2-4. Thus, the total of Scott’s
consecutive sentences could not exceed thirty years. Scott was sentenced to an
aggregate of twenty-nine years, which is one year less than the statutory limit.
Therefore, even if we were to review Scott’s claim of sentencing error on the
merits, his claim would not succeed.
Conclusion
[15] The trial court properly denied Scott’s motion to correct erroneous sentence
because his claim of sentencing error requires consideration of matters outside
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the face of the sentencing order. Furthermore, even if we considered Scott’s
claims on the merits, he would not prevail because his aggregate sentence did
not exceed the advisory sentence for the next highest class of felony.
[16] Affirmed.
Kirsch, J., and Brown, J., concur.
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