FILED
Feb 15 2017, 9:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Harry Hobbs, February 15, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1609-CR-1983
v. Appeal from the Marion Superior
Court.
The Honorable Lisa F. Borges,
State of Indiana, Judge.
Appellee-Plaintiff. The Honorable Anne Flannelly,
Magistrate.
Trial Court Cause No. 49G04-9309-
CF-119274
Barteau, Senior Judge
Statement of the Case
[1] Harry Hobbs appeals the sentence the trial court imposed on remand following
the Court’s decision that he was entitled to partial relief on his motion to correct
erroneous sentence. We affirm.
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Issue
[2] Hobbs raises one issue, which we restate as: whether his sentence as corrected
on remand violates statutory limits and must be reduced.
Facts and Procedural History
[3] The facts as stated in a prior appeal are as follows:
On November 2, 1992, Hobbs committed the crimes from which
this appeal stems. On September 15, 1993, the State charged him
with Count 1, class A felony rape; Count 2, class A felony
criminal deviate conduct; Count 3, class B felony burglary; and
Count 4, class A felony criminal deviate conduct. A jury found
Hobbs guilty as charged. On July 12, 1994, the trial court
sentenced Hobbs to fifty years for Count 1, thirty years for Count
2, twenty years for Count 3, and fifty years for Count 4. The
court ordered Counts 1 and 2 to run concurrent to each other and
Counts 3 and 4 to run consecutive to each other and to Count 1,
for an aggregate sentence of 120 years. Appellant’s App. at 9, 87.
Hobbs appealed his convictions and sentence. He argued that
the evidence was insufficient to support his convictions, that his
convictions violated double jeopardy principles, and that his
sentence was manifestly unreasonable. This Court affirmed.
Hobbs v. State, No. 49A02-9410-CR-614 (Ind. Ct. App. May 25,
1995).
On March 27, 2015, Hobbs filed a motion to correct erroneous
sentence pursuant to Indiana Code Section 35-38-1-15. He
argued that his sentence violated Indiana Code Section 35-50-2-4,
as amended July 1, 1994, because the new version reduced the
presumptive sentence for a class A felony from thirty years to
twenty-five years. He also argued that his aggregate sentence
exceeded the limitation in Indiana Code Section 35-50-1-2, as
amended effective July 1, 1994, on consecutive sentences arising
from an episode of criminal conduct. The trial court found that
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Hobbs’s sentence was not facially erroneous and denied his
motion.
Hobbs v. State, No. 49A04-1505-CR-314, slip op. at 2-3 (Ind. Ct. App. Dec. 21,
2015), trans. denied (Hobbs II).
[4] Hobbs appealed the denial of his motion to correct erroneous sentence. A panel
of this Court determined that Hobbs’s fifty-year sentences violated statutory
maximums and remanded with instructions to reduce the sentences to forty-five
years each. Hobbs claimed that his aggregate sentence should be reduced to
110 years, but the Court rejected that argument, stating:
The revision of his fifty-year sentences does not require that his
120-year aggregate sentence be revised because his aggregate
sentence is not facially erroneous. Therefore, when the trial
court revises Hobbs’s fifty-year sentences to forty-five years, it
may rearrange Hobbs’s sentences to effectuate a 120-year
aggregate sentence. See Wilson v. State, 5 N.E.3d 759, 765 (Ind.
2014) (concluding that where manner of imposing multiple
sentences violated statutory authority but fifty-year aggregate
sentence was in compliance with applicable statutes, proper
remedy was to remand for trial court to arrange individual
sentences so as not to exceed fifty years).
Id. at 6. Hobbs also argued that his sentence was erroneous because his offenses
constituted a single episode of criminal conduct, and, as a result, his aggregate
sentence was subject to a statutory cap. The Court declined to address that
argument, determining it was not appropriately raised in a motion to correct
erroneous sentence.
[5] On remand, the court held a hearing. After the hearing, the court reduced
Hobbs’s fifty-year sentences to forty-five years each. In addition, the court
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imposed sentences of fifteen years each on counts two and three. Finally, the
court ordered that Hobbs would serve his sentences on all four counts
consecutively, for a total sentence of 120 years. This appeal followed.
Discussion and Decision
[6] Hobbs argues that his sentence must be reduced because his offenses constituted
a single episode of criminal conduct and, as a result, his aggregate sentence
must be reduced. The State claims Hobbs’s argument is inappropriate in an
appeal involving a motion to correct erroneous sentence. We agree with the
State.
[7] In Hobbs II, the Court remanded to the trial court to correct a specific sentencing
error that was plain on the face of the sentencing order. The trial court
corrected the error. The Court did not authorize plenary resentencing, and the
trial court did not impose plenary resentencing. As a result, the parties’
arguments in this appeal remain subject to the limits imposed by statute and our
Supreme Court on motions to correct erroneous sentence.
[8] We review a ruling on a motion to correct erroneous sentence only for an abuse
of discretion. Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct. App. 2015). We
will find an abuse of discretion if the trial court’s decision is against the logic
and effect of the facts and circumstances before it. Id.
[9] The governing statute, Indiana Code section 35-38-1-15 (1983), provides:
If the convicted person is erroneously sentenced, the mistake
does not render the sentence void. The sentence shall be
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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.
[10] As our Supreme Court has stated:
When an error related to sentencing occurs, it is in the best
interests of all concerned that it be immediately discovered and
corrected. Other than an immediate motion to correct sentence,
such errors are best presented to the trial court by the optional
motion to correct error under Indiana Trial Rule 59, or upon a
direct appeal from the final judgment of the trial court pursuant
to Indiana Appellate Rule 9(A). Thereafter, for claims not
waived for failure to raise them by direct appeal, a defendant
may seek recourse under Indiana Post-Conviction Rule 1, §
1(a)(3) by claiming ‘that the sentence exceeds the maximum
authorized by law, or is otherwise erroneous.’ As noted above,
however, we have recognized the statutory motion to correct
sentence as an alternate remedy.
Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004) (citations and footnote
omitted).
[11] Use of a statutory motion to correct sentence is “narrowly confined” to claims
apparent from the face of the sentencing judgment. Id. at 787. As to sentencing
claims not facially apparent, the motion to correct sentence is an improper
remedy. Id. A sentencing error that requires examination of matters beyond
the face of the sentencing judgment is better suited for resolution on direct
appeal or through post-conviction relief. Woodcox, 30 N.E.3d at 751.
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[12] In Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012), the defendant filed a
motion to correct erroneous sentence claiming, among other arguments, that
his aggregate sentence violated a statute because his offenses constituted an
episode of criminal conduct. The trial court denied his motion. On appeal, the
Court determined that his claim was inappropriate in the context of a motion to
correct erroneous sentence because the Court could not address the claim
without considering “whether Davis’s offenses were closely related in time,
place, and circumstance and the specific facts underlying each count.” Id. at
474.
[13] In the current case, as in Davis, we cannot resolve Hobbs’s claim without
looking past the face of the sentencing order to the evidence presented at
Hobbs’s original trial. In fact, Hobbs encourages the Court to consider the
evidence, providing citations to the transcript. Appellant’s Br. p. 13. We agree
with the Hobbs II court’s conclusion that Hobbs’s arguments related to an
episode of criminal conduct may not be raised in a motion to correct erroneous
sentence.
[14] Hobbs claims his sentence is fundamentally erroneous and, as a result, his
claims must be addressed in this appeal. The cases he cites are distinguishable.
In Lane v. State, 727 N.E.2d 454 (Ind. Ct. App. 2000), the defendant appealed
from resentencing following remand from a direct appeal. In Niece v. State, 456
N.E.2d 1081 (Ind. Ct. App. 1983), the defendant pursued a direct appeal
following the trial court’s ruling on a motion to correct error. By contrast, in
this case the trial court corrected a limited sentencing error on remand in
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relation to a motion to correct erroneous sentence. The holdings in Lane and
Niece do not compel a conclusion that the trial court or this Court is obligated to
consider all of Hobbs’s sentencing claims regardless of whether they are
appropriate for a motion to correct erroneous sentence.
Conclusion
[15] For the reasons stated above, we affirm the judgment of the trial court.
[16] Affirmed.
Riley, J., and Barnes, J., concur.
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