FILED
Jul 26 2016, 8:32 am
MEMORANDUM DECISION
CLERK
Indiana Supreme Court
Court of Appeals
Pursuant to Ind. Appellate Rule 65(D), this and Tax Court
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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Herbert Cox III Gregory F. Zoeller
Westville, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Herbert Cox III, July 26, 2016
Appellant-Defendant, Court of Appeals Case No.
64A03-1509-CR-1505
v.
Appeal from the Porter Superior
Court
State of Indiana,
The Honorable Roger V.
Appellee-Plaintiff. Bradford, Judge
Trial Court Cause No.
64D01-1208-FC-8140
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Herbert Cox (Cox), appeals the trial court’s denial of his
motion to correct erroneous sentence.
[2] We affirm.
ISSUE
[3] Cox raises one issue on appeal, which we restate as: Whether the trial court
improperly denied his motion to correct erroneous sentence.
FACTS AND PROCEDURAL HISTORY
[4] On August 4, 2012, at approximately 4:15 p.m., Cox was driving a black 1997
Chevy Silverado on Old Porter Road in Porter County, Indiana, when an
officer initiated a traffic stop. The officer had observed Cox’s car travelling at
48 mph in a 30 mph posted zone. When the officer ran Cox’s driver’s license
through the Bureau of Motor Vehicles’ database, it reflected that Cox had been
adjudged an Habitual Traffic Violator (HTV) with a lifetime suspension
beginning from August 22, 1996.
[5] On August 9, 2012, the State filed an Information, charging Cox with operating
a motor vehicle while suspended as an HTV, a Class C felony. On June 16,
2014, Cox pled guilty to that offense, and, in exchange, the State agreed to
dismiss another HTV, a Class C felony in a different cause number. In
addition, the plea agreement capped the executed portion of Cox’s sentence at
five years. In the sentencing order dated September 22, 2014, the trial court
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sentenced Cox to four years in the Department of Correction (DOC) pursuant
to the terms of the plea agreement, and it ordered that Cox’s sentence be served
consecutively to his existing sentence in Lake County.
[6] On July 6, 2015, Cox, pro se, filed a motion to correct erroneous sentence
claiming that on February 19, 2013, he was sentenced to seven years for an
HTV offense in Lake County. According to Cox, the imposition of the instant
four-year sentence consecutive to his existing HTV offense in Lake County led
to an illegal sentence. On July 9, 2015, the trial court denied Cox’s motion.
Following the trial court’s denial of his motion, Cox filed a motion to correct
error on August 11, 2015. On August 13, 2015, the trial court denied Cox’s
motion.
[7] Cox now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Cox claimed that the trial court imposed an illegal consecutive sentence. We
review a ruling on a motion to correct erroneous sentence for an abuse of
discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012). A motion
to correct erroneous sentence may only be used to correct sentencing errors that
are apparent from the face of the sentencing order. Robinson v. State, 805
N.E.2d 783, 787 (Ind. 2004). As a result, claims that require consideration of
the proceedings before, during, or after trial do not warrant relief. Id.
[9] Indiana Code Section 35-50-1-2 grants the trial court discretion to impose
consecutive sentences in certain circumstances. But Indiana Code Section 35-
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50-2-8, which authorizes the imposition of enhanced sentences for habitual
offenders, is “silent on the question of whether courts have the authority to
require habitual offender sentences to run consecutively[.]” Starks v. State, 523
N.E.2d 735, 737 (Ind. 1988). In Starks, our supreme court construed the
consecutive sentencing statute and the habitual offender statute to hold that trial
courts are not authorized to order habitual offender sentences to be served
consecutively. Id. To remedy the erroneous “stacking” of habitual offender
sentences, the court ordered the two habitual offender sentences to be served
concurrently. Id.
[10] Relying on Starks, Cox argues that the only remedy for his erroneous sentence is
to order that his instant sentence is illegal or, in the alternative, order his
sentences to run concurrently. In the present case, the trial court sentenced Cox
to an executed sentence of four years in the DOC for his HTV offense. Also,
the trial court ordered that sentence to run consecutively to his existing sentence
in Lake County. Despite Cox’s claim, the State argues that Cox has simply not
provided an adequate record to determine whether he received an illegal
consecutive sentence. Specifically, the State argues that Cox has not provided
any documents from Lake County showing what charge or charges he faced
there, and whether he received an habitual offender sentence.
[11] A party waives an issue where the party fails to provide adequate citation to
authority and portions of the record. Smith v. State, 822 N.E.2d 193, 202-03
(Ind. Ct. App. 2005), trans. denied; see also Ind. Appellate Rule
46(A)(8) (requiring that contentions in appellant’s brief be supported by cogent
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reasoning and citations to authorities, statutes, and the appendix or parts of the
record on appeal). We agree with the State that Cox has waived this claim by
failing to provide an adequate record to assist in deciding his appeal.
[12] Waiver notwithstanding, Cox’s claim is not one that may be addressed through
a motion to correct erroneous sentence because it requires this court to look
beyond the face of the sentencing judgment. Specifically, it requires a review of
records from Lake County to determine whether Cox received a habitual
offender sentence in that case. Therefore, a motion to correct erroneous
sentence is an improper vehicle for Cox’s claim. Accordingly, the trial court
did not abuse its discretion in denying Cox’s motion.
CONCLUSION
[13] Based on the foregoing, we affirm the trial court’s denial of Cox’s motion to
correct erroneous sentence.
[14] Affirmed.
[15] Kirsch, J. and Pyle, J. concur
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