MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jan 30 2017, 10:13 am
Memorandum Decision shall not be regarded as
CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Terry R. Twitty Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry R. Twitty, January 30, 2017
Appellant-Defendant, Court of Appeals Case No.
32A01-1605-CR-1113
v. Appeal from the Hendricks Superior
Court.
The Honorable Karen M. Love,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 32D03-0212-FA-8
Friedlander, Senior Judge
[1] Terry R. Twitty appeals the denial of his motion to correct erroneous sentence.
We affirm.
[2] Twitty was convicted of five counts of child molesting, three as Class A felonies
and two as Class C felonies, and was sentenced to 108 years. He appealed,
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challenging: (1) the trial court’s treatment of one of the State’s witnesses; (2)
the admission of certain testimony into evidence; and (3) the appropriateness of
his sentence. A panel of this Court affirmed in a Memorandum Decision.
Twitty v. State, Cause No. 32A01-0402-CR-55 (Ind. Ct. App. July 30, 2004).
[3] Next, Twitty filed a petition for post-conviction relief, claiming ineffective
assistance of trial and appellate counsel. The post-conviction court granted
partial relief to Twitty, reducing his sentence to eighty-four years. He appealed,
and the State of Indiana cross-appealed. In a Memorandum Decision, a panel
of this Court reversed the post-conviction court’s sentence reduction, directed
the court to reinstate the 108-year sentence, and rejected Twitty’s claims. Twitty
v. State, Cause No. 32A01-1001-PC-19 (Ind. Ct. App. Sept. 29, 2010), trans.
denied.
[4] Twitty subsequently filed with the trial court two motions for sentence
modification. The trial court denied both motions. Twitty appealed the second
denial, and a panel of this Court affirmed the trial court’s decision in a
Memorandum Decision. Twitty v. State, Cause No. 32A04-1410-CR-472 (Ind.
Ct. App. April 27, 2015).
[5] The current case began when Twitty filed a motion to correct erroneous
sentence. The trial court held a hearing, after which it denied Twitty’s motion,
and this appeal followed.
[6] Twitty raises one issue, which we restate as: whether the trial court abused its
discretion in denying Twitty’s motion to correct erroneous sentence. Twitty
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claims the court should have granted his motion because his sentence is
fundamentally erroneous. The State responds that Twitty is not permitted to
raise his claims through a motion to correct erroneous sentence.
[7] We review a trial court’s ruling on a motion to correct erroneous sentence for
an abuse of discretion. Davis v. State, 978 N.E.2d 470 (Ind. Ct. App. 2012). 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.
[8] The statute that governs motions to correct erroneous sentences provides, in
relevant part:
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.
Ind. Code § 35-38-1-15 (1983).
[9] It is in the best interests of all parties that sentencing errors be immediately
discovered and corrected. Robinson v. State, 805 N.E.2d 783 (Ind. 2004). In
general, such errors are most appropriately presented in a motion to correct
error or in a direct appeal from the sentencing judgment. Id. In addition, a
defendant may raise certain sentencing errors in post-conviction proceedings.
See id. (citing Ind. Post-Conviction Rule 1, § (1)(a)(3)).
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[10] A defendant may file a motion to correct erroneous sentence under Indiana
Code section 35-38-1-15 as a narrower remedy. The Indiana Supreme Court
has explained that, when addressing a motion to correct erroneous sentence, a
court may consider “only the face of the judgment and the applicable statutory
authority without reference to other matters in or extrinsic to the record.”
Robinson, 805 N.E.2d at 787-88. Claims that require consideration of the
proceedings before, during or after trial may not be presented by way of a
motion to correct erroneous sentence. Id. at 787. “The narrow confines of this
procedure are to be strictly applied.” Fulkrod v. State, 855 N.E.2d 1064, 1066
(Ind. Ct. App. 2006).
[11] Twitty presented two arguments in his motion to correct erroneous sentence:
(1) his sentence violated the holding in Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because the trial court identified
aggravating factors that had not been found by a jury; and (2) two of his
convictions violated his federal and state constitutional protections against
double jeopardy because the charges were identical and involved the same
evidence. These claims cannot be addressed without looking beyond the face of
the sentencing order to the evidence and arguments presented during the trial
and the sentencing hearing. Twitty effectively conceded it is necessary to look
at additional evidence because he tendered to the trial court exhibits in support
of his motion to correct erroneous sentence, including excerpts from the
charging information and excerpts from jury instructions. He is raising claims
that cannot be considered in the context of a motion to correct erroneous
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sentence. See Robinson, 805 N.E.2d 783 (noting that in an earlier case, the
Indiana Supreme Court had failed to rigorously apply the “erroneous on its
face” standard in considering a double jeopardy claim raised in a motion to
correct erroneous sentence); Fulkrod, 855 N.E.2d 1064 (refusing to consider
appellant’s Blakely claim in a motion to correct erroneous sentence because the
Court would be required to consider matters beyond the face of the sentencing
order).
[12] Twitty cites Lane v. State, 727 N.E.2d 454 (Ind. Ct. App. 2000), in support of his
argument that the Court must consider his claims, but that case is procedurally
distinguishable. Lane involved an appeal after resentencing, not a motion to
correct erroneous sentence, and does not contradict our Supreme Court’s
holding in Robinson. The trial court did not abuse its discretion in denying
Twitty’s motion to correct erroneous sentence. The State argues that Twitty’s
claims are barred by res judicata, or, in the alternative, are waived because they
could have been raised in post-conviction proceedings. We do not need to
address the State’s arguments.
[13] For the foregoing reasons, we affirm the judgment of the trial court.
[14] Judgment affirmed.
Baker, J., and Mathias, J., concur.
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