FILED
MEMORANDUM DECISION
Jun 30 2016, 8:39 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
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 ATTORNEYS FOR APPELLEE
Artie Thomas Gregory F. Zoeller
Carlisle, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Artie Thomas, June 30, 2016
Appellant-Defendant, Court of Appeals Case No.
18A02-1512-CR-2303
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Linda Ralu Wolfe,
Appellee-Plaintiff Judge
Trial Court Cause No.
18D01-9911-CF-90
Mathias, Judge.
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[1] Artie Thomas (“Thomas”), pro se, appeals the trial court’s denial of his motion
to correct erroneous sentence. Thomas argues that the trial court abused its
discretion in denying his motion to correct erroneous sentence.
[2] We affirm.
Facts and Procedural History
[3] The underlying facts of this case were set forth in our supreme court’s earlier
opinion in Thomas’s direct appeal as follows:
The facts most favorable to the judgment indicate the following.
On the night of October 30, 1999, a local chapter of Kappa Alpha
Psi Fraternity held a fundraiser at a local YWCA. After the
fundraiser, there was a party at the house of a few of the
fraternity members (“Kappa house”). Defendant and seven or
eight of his friends went to the Kappa house, but were turned
away at the door. They were told that the party was full and it
was only for Kappa members. Defendant and his friends
exchanged words with the Kappas and finally left the party.
Upon leaving, Defendant said, “we'll be back and you better have
the police here.”
As the group left the party they split up into separate groups.
Defendant said he was “going to the hood to get his [gun].” (R.
at 929.) One of Defendant’s friends, Terrence Manley, said, “I
ain’t go to do nothing but go down the street.” (R. at 929.)
Another member of the group, Tyrone Mason, took Louis
Abrams to get Abrams’s gun.
The group met up again in the parking lot of a store near the
Kappa house. Defendant, Michael Bruno, Abrams, and Manley
had guns. The group parked their cars on a dark residential street
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so as not to be seen. They walked toward the back of the Kappa
house. At some point, someone said, “let’s do this shit,” and
Defendant, Manley, Bruno, and Abrams began shooting into the
house. Four people were shot. One victim, Julian Brown, died
and three other women were injured.
The State charged Defendant with three counts of criminal
recklessness resulting in serious bodily injury, a class C felony,
Conspiracy to Commit Murder, a class A felony, and Murder.
The jury found Defendant guilty on all counts. The trial court
sentenced Defendant to consecutive sentences of eight years for
each criminal recklessness count and sixty years for the murder.
The court imposed the sentence for conspiracy to commit murder
concurrent to the other counts for a total sentence of 84 years of
incarceration.
Thomas v. State, 774 N.E.2d 33, 34 (Ind. 2002).
[4] On direct appeal, Thomas argued that the trial court abused its discretion in
responding to a jury question. On August 27, 2002, our supreme court affirmed
Thomas’s sentence. Thomas then filed a pro se motion to correct erroneous
sentence on October 15, 2015, which the trial court denied on November 25,
2015. Thomas now appeals.
Discussion and Decision
[5] We review a trial court’s decision on a motion to correct erroneous sentence for
an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010).
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.
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[6] An inmate who believes he has been erroneously sentenced may file a motion
to correct the sentence under Indiana Code section 35-38-1-15:
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.
[7] A statutory motion to correct erroneous 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. Robinson v. State, 805 N.E.2d 783,
787 (Ind. 2004). “Such claims may be resolved by considering only the face of
the judgment and the applicable statutory authority without reference to other
matters in or extrinsic to the record.” Fulkrod v. State, 855 N.E.2d 1064, 1066
(Ind. Ct. App. 2006). If a claim requires consideration of the proceedings
before, during, or after trial, it may not be presented by way of a motion to
correct sentence. Id. Such claims are best addressed on direct appeal or by way
of petition for post-conviction relief. Robinson, 805 N.E.2d at 787.
[8] Here, Thomas claims that the trial court erred by denying his motion to correct
erroneous sentence. He argues that the trial court abused its statutory authority
by ordering him to serve an aggregate twenty-four-year sentence, which
included eight years for each Class C felony criminal recklessness conviction to
be served consecutively.
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[9] A trial court has the discretion to impose sentences consecutively if aggravating
circumstances warrant. See Ind. Code § 25-38-1-7.1. Thomas was sentenced
under Indiana Code section 35-50-1-2(c) (2) (1997) which provides:
Except for statutory crimes of violence, “the total of the
consecutive terms of imprisonment. . . to which the defendant is
sentenced for felony convictions arising out of an episode of
criminal conduct 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.”
Indiana Code section 35-50-1-2(a) specifically provides the offenses
considered to be crimes of violence and criminal recklessness is not
designated as such.
[10] To address Thomas’s claims, we must determine: (1) whether Thomas’s crimes
were among the statutorily defined crimes of violence, and (2) whether his
convictions arose out of an episode of criminal conduct. Thomas contends that
because criminal recklessness was not included as a “crime of violence” under
Indiana Code section 35-50-1-2(a) as it existed at the time his crimes were
committed that the maximum sentence that the trial court should have ordered
him to serve is ten years, the presumptive sentence for a Class B felony.
[11] While we agree with Thomas’s contention that criminal recklessness did not
constitute a crime of violence under Indiana Code section 35-50-1-2(a) at the
time his crimes were committed, we cannot determine whether Thomas’s
crimes arose out of an episode of criminal conduct without looking outside the
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face of the sentencing order. Although Thomas was charged for all crimes
under the same cause number, this 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)). Courts also consider whether the alleged
conduct was so closely related in time, place, and circumstance that a complete
account of one charge cannot be related without referring to the details of the
other charge. Id.
[12] We cannot consider any of these factors without looking at the facts and
circumstances supporting Thomas’s convictions. Said differently, we cannot
conclude from the face of the sentencing order and the relevant statutory
authority that Thomas’s sentence is erroneous. A motion to correct erroneous
sentence is not the appropriate means to present Thomas’s claims of sentencing
error. See Robinson, 805 N.E.2d at 787. Therefore, the trial court properly denied
Thomas’s motion to correct erroneous sentence.
[13] Thomas alternatively argues that even if our court determines that his aggregate
twenty-four-year consecutive sentence for three criminal recklessness
convictions was not facially erroneous, we should look to his companion case,
Bruno v. State, 774 N.E.2d 880, 883-84 (Ind. 2002) for guidance. In Bruno,
Thomas’s co-defendant’s sentence was revised on appeal from an aggregate
eighteen-year consecutive sentence for three Class C criminal recklessness
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felonies to a presumptive Class B felony ten-year sentence under Indiana Code
section 35-50-1-2. Although Bruno’s situation may seem identical to Thomas’s
situation, it differs because Bruno appropriately raised the sentencing issue on
direct appeal. Further, by considering Thomas’s alternative argument, we
would again be required to look at more than the face of the sentencing order,
which we cannot do in reviewing the trial court’s denial of a motion to correct
erroneous sentence.
[14] We conclude that the trial court did not abuse is discretion in denying
Thomas’s motion to correct erroneous sentence because his claim of sentencing
error requires consideration of matters beyond the face of the sentencing order.
[15] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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