MEMORANDUM DECISION FILED
Mar 24 2016, 8:56 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Brian Sawyer Gregory F. Zoeller
Carlisle, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Sawyer, March 24, 2016
Appellant-Defendant, Court of Appeals Cause No.
49A02-1504-CR-288
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant A. Hawkins,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G05-0510-FA-184250
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016 Page 1 of 4
Case Summary
[1] Brian Sawyer appeals the denial of his motion to correct erroneous sentence.
We affirm.
Issue
[2] Sawyer raises one issue, which we restate as whether the trial court properly
denied his motion to correct erroneous sentence.
Facts
[3] In August 2006, Sawyer pled guilty to rape and criminal deviate conduct, Class
A felonies. In September 2006, the trial court sentenced him to fifty years on
each count, suspended twenty years from each count, and ordered the sentences
to run consecutively. Saywer’s aggregate sentence is one-hundred years with
sixty years executed.1 On April 16, 2015, Sawyer filed a motion to correct
erroneous sentence. The trial court denied that motion the same day. Sawyer
now appeals.
Analysis
[4] Sawyer contends his convictions violate the Indiana Constitution’s prohibition
against double jeopardy. See Ind. Const. Art. 1, § 14. He asks us to reduce his
Class A felony conviction for criminal deviate conduct to a Class B felony and
“resentence him accordingly.” Appellant’s Br. p. 5.
1
Sawyer challenged the appropriateness of his sentence on direct appeal. We affirmed. See Sawyer v. State,
No. 49A04-0610-CR-552 (Ind. Ct. App. July 31, 2007).
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[5] Indiana Code Section 35-38-1-15 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.
We “defer to the trial court’s factual finding” on a motion to correct erroneous
sentence and “review its decision only for abuse of discretion.” Fry v. State, 939
N.E.2d 687, 689 (Ind. Ct. App. 2010) (quotations omitted) (citation omitted).
An abuse of discretion occurs when the trial court’s decision is against the logic
and effect of the facts and circumstances before it. Davis v. State, 978 N.E.2d
470, 472 (Ind. Ct. App. 2012).
[6] Sentencing errors are best presented to the trial court in a motion to correct
error under Indiana Trial Rule 59 or on direct appeal. Robinson v. State, 805
N.E.2d 783, 786 (Ind. 2004). Thereafter, a defendant may seek relief for certain
claims under the Indiana Post-Conviction Rules. Id. A motion to correct
erroneous sentence is an alternate remedy; however, that remedy is reserved for
correcting only those sentencing errors that are clear from the face of the
judgment imposing the sentence in light of the statutory authority. Id. “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 787.
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[7] Sawyer raises a substantive double jeopardy argument and asks us to conclude
his convictions are the “same offense” pursuant to the “statutory elements”
analysis detailed in Richardson v. State and to reduce his Class A felony
conviction for criminal deviate conduct to a Class B felony. Richardson v. State,
717 N.E.2d 32, 49 (Ind. 1999). He also asks us to resentence him accordingly.
[8] The abstract of judgment issued on September 1, 2006, states the crimes for
which Sawyer was convicted and the sentences imposed thereon. It provides
neither information regarding the statutory elements of the crimes Sawyer
challenges nor the actual evidence used to convict him. Such information is
crucial to a Richardson analysis. Sawyer’s argument on appeal is precisely the
sort of substantive claim that may only be raised on direct appeal or, if
appropriate, in a petition for post-conviction relief. It cannot be evaluated by
simply reviewing the trial court’s sentencing order. Sawyer has not established
that the trial court abused its discretion by denying his motion.
Conclusion
[9] The trial court did not abuse its discretion in denying Sawyer’s motion to
correct erroneous sentence. We affirm.
[10] Affirmed.
Robb, J., and Altice, J., concur.
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