MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Feb 11 2019, 9:58 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY PRO SE ATTORNEYS FOR APPELLEE
Charles Peete Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles N. Peete, February 11, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2025
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Stephen R.
Appellee-Plaintiff. Bowers, Judge
Trial Court Cause No.
20D02-1610-F4-51
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2025 | February 11, 2019 Page 1 of 4
Case Summary
[1] Charles Peete appeals the trial court’s denial of his motion to correct erroneous
sentence. We affirm.
Issue
[2] Peete raises one issue, which we restate as whether the trial court properly
denied his motion to correct erroneous sentence.
Facts
[3] In October 2016, the State charged Peete with burglary, a Level 4 felony, and
alleged that Peete was a habitual offender. In support of the habitual offender
allegation, the State relied on a 2013 conviction for fraud, a Class D felony, and
a 2002 conviction for burglary, a Class C felony. A jury found Peete guilty of
burglary, and he admitted to being a habitual offender. The trial court
sentenced Peete to twelve years for burglary enhanced by fifteen years for his
status as a habitual offender. On direct appeal, Peete challenged his sentence,
and we affirmed. See Peete v. State, No. 20A03-1704-CR-807, slip op. at 1 (Ind.
Ct. App. Sept. 6, 2017).
[4] On July 20, 2018, Peete filed a motion to correct erroneous sentence
challenging the appropriateness of the prior felonies used to support his habitual
offender status. The trial court denied Peete’s motion. Peete now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2025 | February 11, 2019 Page 2 of 4
Analysis
[5] Peete challenges the trial court’s denial of his motion to correct erroneous
sentence. We review rulings on motions to correct erroneous sentence for an
abuse of discretion, which occurs when a decision is against the logic and effect
of the facts and circumstances before the trial court. Davis v. State, 978 N.E.2d
470, 472 (Ind. Ct. App. 2012). An inmate who believes he or she has been
erroneously sentenced may file a motion to correct sentence under Indiana
Code Section 35-38-1-15. Neff v. State, 888 N.E.2d 1249, 1250-51 (Ind. 2008).
Such motions may only be used to attack a sentence that is “erroneous on its
face.” Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004). Alleged sentencing
errors that require consideration of matters outside the face of the sentencing
judgment can only be attacked via direct appeal or, when appropriate, petitions
for postconviction relief, and not via motions to correct erroneous sentence. Id.
at 787. “Claims that require consideration of the proceedings before, during, or
after trial may not be presented by way of a motion to correct sentence.” Id.
[6] On appeal, Peete argues that, under Indiana Code Section 35-50-2-8(b), he
could not be a habitual offender because one of his prior felony convictions was
a Class D felony.1 The State argues that Peete’s motion to correct erroneous
1
Indiana Code Section 35-50-2-8(b) provides:
A person convicted of murder or of a Level 1 through Level 4 felony is a habitual offender if the
state proves beyond a reasonable doubt that:
(1) the person has been convicted of two (2) prior unrelated felonies; and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2025 | February 11, 2019 Page 3 of 4
sentence was not a facial attack upon his sentencing order and, thus, was not
permitted by Robinson. We agree. Resolution of the motion would require
delving into matters outside the face of the sentencing order, in particular, the
propriety of the prior felonies used to support his habitual offender status. We
conclude that a motion to correct erroneous sentence was not the proper vehicle
for Peete’s arguments regarding his habitual offender status. See Murfitt v. State,
812 N.E.2d 809, 811 (Ind. Ct. App. 2004) (holding Robinson barred defendant’s
motion to correct erroneous sentence that challenged the amount of time
defendant had spent in confinement prior to sentencing). If Peete desires to
raise this issue, he must do so through a petition for post-conviction relief. See
Robinson, 805 N.E.2d at 787.
Conclusion
[7] The trial court properly denied Peete’s motion to correct erroneous sentence.
We affirm.
[8] Affirmed.
Baker, J., and May, J., concur.
(2) at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony.
(emphasis added).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2025 | February 11, 2019 Page 4 of 4