MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 10 2017, 10:00 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Chris M. Teagle Curtis T. Hill, Jr.
Muncie, Indiana Attorney General
Zaki M. Ali Matthew B. MacKenzie
Anderson, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Micheau, April 10, 2017
Appellant-Defendant, Court of Appeals Case No.
38A02-1606-PC-1356
v. Appeal from the Jay Circuit Court
The Honorable Patrick R. Miller,
State of Indiana, Special Judge
Appellee-Plaintiff Trial Court Cause No.
38C01-0911-PC-05
Crone, Judge.
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Case Summary
[1] Robert Micheau appeals the remedy chosen by the trial court when it granted
his motion to correct erroneous sentence. Concluding that the trial court erred
in granting Micheau’s motion to correct erroneous sentence in the first place,
we vacate the trial court’s judgment in its entirety and remand with instructions
to reinstate his convictions and sentences as they previously stood.
Facts and Procedural History
[2] Following a jury trial, Micheau was convicted of count 1, class B felony dealing
in methamphetamine, count 2, class D felony possession of methamphetamine,
count 3, class D felony dealing in a sawed-off shotgun, count 4, class A
misdemeanor possession of marijuana, count 5, class C felony possession of
chemical reagents or precursors with intent to manufacture a controlled
substance, and count 6, class A felony attempted dealing in methamphetamine.
The trial court sentenced Micheau to eighteen years for count 1, enhanced by
ten years due to the possession of the sawed-off shotgun, three years for count
2, three years for count 3, one year for count 4, six years for count 5, and forty
years for count 6, enhanced by ten years due to the possession of the sawed-off
shotgun. The trial court ordered that the sentences be served concurrently for an
aggregate sentence of fifty years.
[3] Micheau appealed, and another panel of this Court affirmed his convictions and
sentences for counts 1, 3, 4 and 6, and vacated his convictions and sentences for
counts 2 and 5 on double jeopardy grounds. See Micheau v. State, 893 N.E.2d
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1053, 1067 (Ind. Ct. App. 2008), trans. denied (2009). Micheau filed a petition
for postconviction relief in November 2009. The postconviction court denied
relief in part and granted relief in part in November 2012. Specifically, the
postconviction court modified Micheau’s conviction on count 6 to a class B
felony, vacated the sentence enhancement, and resentenced him to twenty years
on that count, to be served concurrently with the remaining sentences on counts
1, 3, and 4, for an aggregate sentence of twenty-eight years.
[4] In June 2015, Micheau sought permission to file a successive petition for
postconviction relief which was denied by this Court. Thereafter, in October
2015, Micheau filed a motion to correct erroneous sentence arguing that his
conviction for count 3, class D felony dealing in a sawed-off shotgun, and his
ten-year sentence enhancement on count 1 for possessing the same sawed-off
shotgun, violated double jeopardy principles. The trial court denied the
motion. Micheau filed a motion to correct error and, following a hearing, the
trial court granted the motion to correct erroneous sentence and vacated
Micheau’s conviction and three-year sentence for count 3.
[5] Thereafter, Micheau filed a second motion to correct error challenging the trial
court’s chosen remedy on his motion to correct erroneous sentence.
Specifically, he asserted a new claim that he was entitled to a bifurcated trial on
the sentence enhancement for count 1 pursuant to Indiana Code Section 35-50-
2-13, and that because he did not receive a separate trial, he was entitled to have
the ten-year enhancement vacated rather than having his conviction and three-
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year sentence for count 3 vacated. The trial court subsequently denied the
motion. This appeal ensued.
Discussion and Decision
[6] Micheau appeals the trial court’s ruling on his motion to correct erroneous
sentence. Our supreme court has held that
a motion to correct 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. Claims
that require consideration of the proceedings before, during, or
after a trial may not be presented by way of a motion to correct
sentence.
Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Indeed, the court has
“repeatedly cautioned” that a motion to correct erroneous sentence is an
available remedy only when a sentence is erroneous on its face, and such
motion must be “narrowly confined” and “strictly applied” to claims apparent
from the face of the sentencing judgment. Id. at 787-88. “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.
[7] Here, in his motion to correct erroneous sentence, Micheau argued that his
conviction for count 3 and his sentence enhancement on count 1 violated
double jeopardy principles. Such a claim is clearly beyond the purview of a
motion to correct erroneous sentence, as it requires consideration of matters
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outside the face of the sentencing judgment. In short, a double jeopardy claim
does not meet the “erroneous on its face” standard. See id. at 787. Because
Micheau’s claim was improperly raised by a motion to correct erroneous
sentence, it was error for the trial court to consider the merits of his double
jeopardy claim and to grant the motion to correct erroneous sentence on that
basis. Accordingly, we vacate the trial court’s judgment in its entirety and
remand with instructions to reinstate Micheau’s convictions and sentences as
they previously stood.
[8] Vacated and remanded.
Baker, J., and Barnes, J., concur.
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