MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 12 2018, 10:27 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kenneth Robinson Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Robinson, December 12, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1052
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Diane Ross Boswell,
Appellee-Plaintiff. Judge
The Honorable Kathleen A. Sullivan,
Magistrate
Trial Court Cause Nos.
45G03-7801-CR-19
45G03-7801-CR-20
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018 Page 1 of 9
Case Summary
[1] Kenneth Robinson (“Robinson”), pro se, appeals the trial court’s denial of his
motion to correct an erroneous sentence. We affirm.
Issues
[2] Robinson raises the following two issues on appeal:
I. Whether the trial court erred when it resentenced
Robinson without Robinson’s attorney present.
II. Whether the trial court erred when it sentenced Robinson
to consecutive sentences for his two murder convictions.
Facts and Procedural History
[3] In December of 1977, the State charged Robinson with two counts of
kidnapping under Cause Number 3CR-201-1277-983/successor cause number
45G03-7712-CR-201 (“CR-201”). In January of 1978, the State also charged
Robinson with murder under Cause Number 3CR-19-178-70/successor cause
number 45G03-7801-CR-19 (“CR-19”) and with another count of murder under
Cause Number 3CR-20-178-71/successor cause number 45G03-7801-CR-20
(“CR-20”). Robinson was convicted of both counts of kidnapping under CR-
201 in September of 1978, and the trial court imposed an aggregate forty-year
sentence in that case. The Indiana Supreme Court affirmed those convictions
on direct appeal. Robinson v. State, 272 Ind. 312, 317, 397 N.E.2d 956, 959
(1979).
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[4] Separately, Robinson pled guilty to both murder charges in CR-19 and CR-20.
In October of 1978, the trial court imposed a sixty-year sentence on the CR-19
murder conviction, which it ordered served consecutively to the forty-year
sentence Robinson was already serving in CR-201, and it imposed a sixty-year
sentence on the CR-20 murder conviction, which it ordered served
consecutively to the CR-19 sentence. Robinson did not file a direct appeal of
his CR-19/CR-20 sentencing.
[5] In 1986, Robinson, by counsel, filed a post-conviction petition challenging his
sentence, which was denied. Robinson did not appeal. In 1996, Robinson, by
counsel, litigated a second post-conviction petition in CR-19 and CR-20
challenging his sentence; that petition was also denied, and Robinson did not
appeal.
[6] On November 2, 2015, Robinson, by counsel, filed a motion to correct
erroneous sentence under CR-19 and CR-20 in which he alleged that those
sentences and the sentence in CR-201 should all run concurrently. On June 14,
2016, the trial court granted, in part, the motion to correct erroneous sentence
and ordered the sentence in CR-19 to run concurrently with the forty-year
kidnapping sentence in CR-201. On July 7, 2016, the court issued an amended
abstract of judgment reflecting this change.
[7] In July of 2016, Robinson’s counsel filed a motion to withdraw in which he
noted that Robinson requested that counsel withdraw so that Robinson could
“continue with his case, proceeding pro se.” App. at 68-70. The trial court
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granted that motion. On August 4, 2016, Robinson—proceeding pro se—filed
a motion to clarify the trial court’s June 14, 2016 ruling on the motion to
correct erroneous sentence, alleging that the sentences in CR-19 and CR-20
must run concurrently. On August 15, the trial court issued an order explaining
that the court had authority to run the CR-19 and CR-20 sentences
consecutively, so that aspect of the sentence remained unchanged. The court
noted that it had corrected only the order running the CR-19 sentence
consecutively to the CR-201 sentence, as there was no statutory authority at the
time to do that.
[8] On August 15, Robinson filed, pro se, a motion to file a belated appeal of the
June 14, 2016 order. The court denied that motion on August 17. Robinson
did not appeal the denial of his motion to file a belated appeal.
[9] In October of 2016, Robinson filed, pro se, a third post-conviction petition that
was refused for filing as an unauthorized successive petition. In November of
2016, Robinson filed a “Motion for Trial Rule 60[B] Relief [f]rom Order
Summarily Denying Post Conviction Relief Petition,” which the court denied
on December 5. App. at 3, 10. On appeal, this Court affirmed the denial of the
Trial Rule 60(B) motion. Robinson v. State, No. 45A04-1612-CR-2871, 2017
WL 1533682, *2-3 (Ind. Ct. App. April 28, 2017), trans. denied.
[10] On March 12, 2018, Robinson filed, pro se, another motion to correct
erroneous sentence in which he alleged, for the first time, that Indiana law
required that he and his lawyer should have been present at the time his
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sentence was corrected. Robinson requested that the court “remand Petitioner
to the trial court with instructions to re-impose the order correcting the sentence
in the defendant’s presence in this cause.” App. at 78. The trial court held a
hearing on April 4, 2018, in Robinson’s presence, and it “affirmed” its orders
dated June 14, 2016, and August 15, 2016. Id. at 86. This appeal ensued.
Discussion and Decision
[11] Robinson challenges the trial court’s ruling on his March 12, 2018, motion to
correct erroneous sentence. We review such rulings for an abuse of discretion.
Bridges v. Veolia Water Indianapolis, LLC, 978 N.E.2d 447, 452-53 (Ind. Ct. App.
2012), trans. denied. “An abuse of discretion occurs when the trial court’s action
is against the logic and effect of the facts and circumstances before it and the
inferences that may be drawn therefrom, or is based on impermissible reasons
or considerations.” Id. (citation omitted).
Resentencing without Attorney Present
[12] Robinson filed a motion to correct erroneous sentence in which he claimed that
the trial court erred in resentencing him on June 14, 2016, and/or affirming the
sentence on April 4, 2018, without his lawyer present, in violation of Indiana
Code Section 35-38-1-15.1 We first observe that it is not at all clear that
1
That statute provides, in relevant part, that an erroneous 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.” I.C. § 35-38-1-15.
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Robinson was permitted to raise this issue through a motion to correct sentence.
Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004) (holding 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; claims that require consideration of
matters outside the proceedings may not be raised through such a motion).
However, even assuming—without deciding—that his motion was permissible,
Robinson waived appeal of the issue of resentencing without a lawyer by failing
to raise contemporaneous objections.
[13] It is well-settled that a defendant must object to an alleged error in order to
preserve the issue for appeal. E.g., Wilder v. State, 91 N.E.3d 1016, 1022 (Ind.
Ct. App. 2018) (citing Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)).
Failure to object results in waiver. Id.
The purpose of the contemporaneous objection requirement is to
give the trial court a chance to avoid or correct the harmful error,
thereby securing a fair and proper verdict. Clark v. State, 6
N.E.3d 992, 998 (Ind. Ct. App. 2014). “[A] trial court cannot be
found to have erred as to an issue or argument that it never had
an opportunity to consider.” Washington, 808 N.E.2d at 625.
Id.
[14] At the time of the June 2016 resentencing, Robinson did not object to the
resentencing without his lawyer present, nor did he appeal the June 14 order.
Rather, he raised the issue for the first time in his March 12, 2018, pro se
motion to correct erroneous sentence. However, when the court held a hearing
on April 4, 2018, to affirm the June 14, 2016, sentence, Robinson—who
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appeared at the hearing and represented himself pro se2—did not object that his
lawyer was not present at the hearing, and he did not argue that the hearing was
illegal because his lawyer was not present. Therefore, Robinson has waived the
claim on review. Id.
[15] Waiver notwithstanding, Robinson acted as his own counsel at the April 4,
2018, hearing; therefore, “his counsel” was present at that hearing. I.C. § 35-
38-1-15. A defendant has federal and state constitutional rights to waive
counsel and represent himself. U.S. CONST. amend. VI; IND. CONST. art. 1, §
13. However, a defendant who does so “accepts the burdens and hazards
incident to his position; moreover, a defendant who represents himself will be
held to the rules of trial procedure, will be treated like an attorney, and will be
responsible for making objections and following procedural and evidentiary
rules.” Jefferson v. State, 891 N.E.2d 77, 86-87 (Ind. Ct. App. 2008) (citations
omitted), trans. denied. In July of 2016, Robinson’s counsel withdrew at
Robinson’s request specifically so that Robinson could represent himself, and
Robinson does not dispute that fact on appeal.3 Since Robinson appeared on
his own behalf at the April 4, 2018, hearing, he was represented at that hearing
as required by statute. See Jefferson, 891 N.E.2d at 86-87; see also Dack v. State,
2
We note that “we hold pro se litigants … to the same performance standard as practicing attorneys.” Lee v.
State, 91 N.E.3d 978, 990 (Ind. Ct. App. 2017), trans. denied.
3
Robinson does point out that he asked for a continuance at the April 4, 2018, hearing so that he could
obtain counsel, and the court in effect denied that request by noting that counsel was unnecessary. However,
he does not appeal the denial of his request for a continuance.
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457 N.E.2d 600, 602 (Ind. Ct. App. 1983) (citing Sidener v. State, 446 N.E.2d
965, 966 (Ind. 1983)) (“It is well-settled in Indiana that a defendant who
chooses to proceed pro se will not be given special consideration and cannot
later complain of his lack of the assistance of counsel.”).4 The trial court did
not abuse its discretion when it denied Robinson’s motion to correct erroneous
sentence.
Waiver of Appeal of Consecutive Murder Sentences
[16] The second issue Robinson raises on appeal is whether the trial court erred in
ordering the sentences for his two murder convictions to run consecutively.
However, Robinson also waived this claim by failing to raise it below. In his
March 12, 2018, motion to correct erroneous sentence—the denial of which is
the subject of this appeal—Robinson alleged that his sentence was erroneous
only because it was issued on June 14, 2016, without him or his lawyer being
present as required by statute. App. at 75-84. And the only relief Robinson
requested was that the court “remand Petitioner to the trial court with
instructions to re-impose the order correcting the sentence in the defendant’s
presence in this cause.” Id. at 78, 83. Because Robinson failed to challenge the
order that his murder sentences run consecutively in his motion below, he has
4
We note that Robinson contends for the first time in his reply brief that he was not given notice of the April
4, 2018, hearing as required by statute. Appellant’s Reply Br. at 4. However, to the extent he raises that
issue, it is waived because it was raised for the first time in his reply brief. Monroe Guar. Ins. Co. v. Magwerks
Corp., 829 N.E.2d 968, 977 (Ind. 2005) (citation omitted) (“The law is well settled that grounds for error may
only be framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they are
waived.”).
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waived that issue on appeal. Washington, 808 N.E.2d at 625; Wilder, 91 N.E.3d
at 1022.5
Conclusion
[17] Robinson did not object to the absence of a lawyer at either his June 2016
resentencing or his April 2018 hearing; therefore, he has waived his claim that
his sentence violated state law because it was imposed without his lawyer
present. Waiver notwithstanding, he acted as his own counsel at the April 2018
hearing affirming his June 2016 sentence and therefore was represented as
required by statute. I.C. § 35-38-1-15. And, finally, Robinson waived his claim
that his murder sentences should not run consecutively by failing to raise that
claim in his March 12, 2018, motion to correct erroneous sentence.
[18] Affirmed.
Bradford, J., concurs.
Brown, J., concurs in result.
5
Because we decide this issue is waived, we do not address the State’s contentions regarding the doctrine of
res judicata.
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