MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 01 2019, 8:58 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Anthony Warren Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Warren, February 1, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1070
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa Borges, Judge
Appellee-Plaintiff. Trial Court Cause No.
49G04-9808-CF-128010
Barteau, Senior Judge.
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Statement of the Case
[1] After his conviction of murder and a finding that he was an habitual offender,
Anthony Warren appeals from the trial court’s denial of his motion to correct
erroneous sentence and his motion to correct error. We affirm.
Issues
[2] Warren presents these two, restated issues for our review as follows:
I. Did the trial court abuse its discretion by denying Warren’s
motion to correct erroneous sentence?
II. Did the trial court commit reversible error by denying
Warren’s motion to correct error?
Facts and Procedural History
[3] To briefly summarize, on August 2, 1998, Warren, Lynn Coe, and Darlene
Massengill engaged in a night of heavy drinking. The next morning, Coe
discovered Massengill dead in his one-room apartment and further discovered
that his handgun was missing. An autopsy revealed Massengill’s cause of death
was a single, fatal, gunshot wound to the head. Coe called 911 reporting that
he had seen Warren shoot Massengill, but at trial recanted and testified that he
saw nothing because he had passed out in his bed from his alcohol
consumption.
[4] The same morning Massengill’s body was discovered, Warren returned to the
apartment he shared with his girlfriend Charlene Davis. Davis told law
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enforcement officers that Warren showed her a handgun, told her he knew he
was going to jail, and mentioned something about removing gunshot residue.
He removed his clothing, covered them in bleach and tossed them in a
dumpster behind the apartment building. He also told Davis that she no longer
had to worry about Massengill. Previously, Warren had tried to get Davis to
purchase a gun for him because of problems he believed Massengill and her
family were causing him.
[5] After a jury trial, Warren was convicted of murder and was adjudged an
habitual offender. The trial court sentenced Warren to sixty-five years for
murder, enhanced by an additional thirty years for the habitual offender
adjudication.
[6] On direct appeal, the Supreme Court affirmed Warren’s murder conviction, but
vacated his habitual offender adjudication, remanding the matter for further
proceedings. Warren v. State, 725 N.E.2d 828 (Ind. 2000). The trial court once
again adjudicated Warren an habitual offender and enhanced his murder
sentence by thirty years for the habitual offender adjudication. Warren’s appeal
from that decision was affirmed by the Supreme Court. Warren v. State, 769
N.E.2d 170 (Ind. 2002).
[7] In the meantime, on September 8, 2000, Warren filed a pro se petition for post-
conviction relief. After an evidentiary hearing, the post-conviction court
ordered both sides to submit proposed findings of fact and conclusions of law.
The post-conviction court entered its findings of fact and conclusions of law,
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denying Warren the relief he sought. On April 28, 2004, Warren filed a pro se
Notice of Appeal in which he acknowledged the submission was late, but
claimed he had not learned of the post-conviction court’s ruling until April 19,
2004, despite a notation on the chronological case summary indicating that
copies of the court’s order had been sent to all parties. On May 18, 2004, the
post-conviction court denied Warren’s Notice of Appeal as untimely. On June
4, 2004 Warren filed with this Court a petition for permission to file a belated
appeal. On June 17, 2004, the Court granted Warren permission to file a
belated appeal but limited the issue for consideration to the post-conviction
court’s denial of Warren’s Notice of Appeal. After considering the appeal, the
Court affirmed the post-conviction court’s denial of Warren’s Notice of Appeal.
Warren v. State, 49A04-0405-PC-283 (Ind. Ct. App. Apr. 15, 2005).
[8] Warren also filed a petition for a state writ of habeas corpus, which the trial
court dismissed, and this Court dismissed his appeal from that decision. See
Warren v. State, 49A02-1703-CR-598 (Ind. Ct. App. Oct. 30, 2017), citing
Docket of Cause No. 49A02-1001-PC-53.
[9] In January 2017, Warren filed a motion for relief from judgment and a motion
to correct error, both of which were denied by the trial court. A panel of this
Court affirmed the trial court’s decision in a memorandum decision. Warren v.
State, 49A02-1703-CR-598, *1 (Ind. Ct. App. Oct. 30, 2017).
[10] Next, on March 9, 2018, Warren filed a motion to correct erroneous sentence,
which was denied by the trial court on March 12, 2018. The trial court entered
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an order on April 10, 2018, denying Warren’s motion to correct error. He now
appeals those decisions.
Discussion and Decision
I. Motion to Correct Erroneous Sentence
[11] Warren contends that the trial court abused its discretion by denying his motion
to correct erroneous sentence. Indiana Code section 35-38-1-15 (1983) provides
as follows about such motions:
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.
[12] Our Supreme Court, in Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004), held
that the purpose of the statute was to “provide prompt, direct access to an
uncomplicated legal process for correcting the occasional erroneous or illegal
sentence.” On review of a trial court’s denial of such a motion, we defer to the
trial court’s factual findings and review it for an abuse of discretion. Felder v.
State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). We will find an abuse of
discretion only when the trial court’s decision is against the logic and effect of
the facts and circumstances before it. Id. The trial court’s legal conclusions, on
the other hand, are reviewed de novo. Id.
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[13] The Supreme Court opinion in Robinson further informs us that a motion to
correct an erroneous sentence may only be used to correct sentencing errors that
are clear on the face of the “judgment imposing sentence.” 805 N.E.2d at 787.
Any claims requiring consideration of the proceedings before, during, or after
the trial may not be presented by way of a motion to correct erroneous
sentence. Id.
[14] Here, Warren received an executed sentence of sixty-five years for his murder
conviction. The sentencing range for murder at the time he committed his
offense was a fixed term of fifty-five years with not more than ten years added
for aggravating circumstances or not more than ten years subtracted for
mitigating circumstances. See Ind. Code § 35-50-2-3 (1995). After remand,
Warren’s sentence was enhanced by thirty years due to his habitual offender
adjudication. That sentence enhancement was within the statutory parameters
under Indiana Code section 35-50-2-8 (1995). Consequently, we conclude that
Warren’s sentence was not deficient on the face of the judgment imposing
sentence. Therefore, the trial court did not abuse its discretion in denying
Warren’s motion to correct erroneous sentence.
II. Motion to Correct Error
[15] We address this separately because it appears that Warren is attempting to
revive or revisit claims he has previously presented regarding the authority of
the magistrate to sign his original abstract of judgment reflecting the sentence
imposed for murder and the enhancement for his status as an habitual offender,
under Indiana Code sections 33-4-8-8 and 33-4-7-8 (1998) (repealed by P.L. 98-
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2004, SEC. 164). His arguments regarding those claims were denied by the trial
court and that denial was affirmed in Warren v. State, 49A02-1703-CR-598, *1
(Ind. Ct. App. Oct. 30, 2017). In that opinion, as we do now, we observe that
the correct procedure to use to present this claim would be through requesting
permission to file a Successive Petition for Post-Conviction Relief with this
Court. See Ind. Post-Conviction Rule 1(12). Because the trial court correctly
identified Warren’s motion as an improper substitute for such a request for
permission to file a Successive Petition for Post-Conviction Relief, the trial
court did not err.
Conclusion
[16] Based on the foregoing, we affirm the judgment of the trial court.
[17] Affirmed.
Mathias, J., and Tavitas, J., concur.
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