MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 25 2019, 7:37 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
Tyrone L. Noble Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyrone L. Noble, April 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1662
v. Appeal from the
Lake Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Clarence D. Murray, Judge
The Honorable
Natalie Bokota, Magistrate
Trial Court Cause No.
45G02-9807-CF-127
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019 Page 1 of 8
[1] Tyrone Noble was convicted after a jury trial of felony murder and sentenced to
sixty years executed in the Department of Correction. He appeals the denial of
his motion to correct error, in which he alleged that he had been erroneously
denied 1,562 days of pretrial credit time, and argues that the trial court abused
its discretion when it denied his motion.
[2] We affirm.
Facts and Procedural History
[3] On May 31, 2001, Noble was sentenced to sixty years in the Department of
Correction for his conviction for felony murder. Suppl. Appellant’s App. Vol. 2 at
2-4. The sentencing order specifically stated that “[t]he sentence of
imprisonment shall run consecutively to the sentence imposed in U.S. District
Court, Northern District, Cause No. 2:97CR155 for the reason that it is
mandatory pursuant to I.C. 35-50-1-2-(2).” Id. at 3. The sentencing order also
stated that Noble “shall not be given any days [sic] credit toward the sentence of
imprisonment for time spent in confinement as a result of this charge for the
reason that the sentence is consecutive to the sentence imposed in . . . Cause
No. 2:97CR155 in which he has been serving time since January 2000.” Id. at
4. In the time between Noble’s sentencing on May 31, 2001, and the filing of
this appeal on June 28, 2018, Noble sought relief by both direct appeal and
through the post-conviction process. Id. at 27.
[4] On July 16, 2009, Noble filed a petition for jail time credit contending that he
was entitled to 1,061 days of pretrial credit time. Id. at 7-8. On the same date,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019 Page 2 of 8
the trial court denied Nobel’s petition for jail time credit, stating that “[t]he
sentence in this case is not erroneous on its face” and that the proper procedure
by which to raise his claim was a successive petition for post-conviction relief
under Post-Conviction Rule 1, Section 12. Id. at 15. Noble did not appeal this
order.
[5] On September 20, 2016, Noble filed a second motion for jail time credit, this
time alleging he was entitled to 1,061 days of jail time credit confinement and
2,122 days of earned credit time for the time spent in confinement before
sentencing. Id. at 16-17. On the same date, the trial court denied Noble’s
motion “for the reasons stated in this court’s order of July 16, 2009.” Id. at 20.
Noble did not appeal the trial court’s order.
[6] On April 27, 2018, Noble filed a third motion, a motion to correct erroneous
sentence, but did not specify the amount of credit time to which he alleged to be
entitled. Id. at 21-25. On May 3, 2018, the trial court again denied Noble’s
motion, reasoning that a motion to correct erroneous sentence may only be
used to attack a sentence that is erroneous on its face and that Noble’s sentence
was not erroneous on its face. Id. at 27. The trial court also stated that the
issues raised by Noble must be addressed in a petition for post-conviction relief
and that he had previously sought post-conviction relief. Id. The trial court
further noted that the proper procedure to raise any claim was a successive
petition for post-conviction relief. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019 Page 3 of 8
[7] Noble filed the motion at issue in the present appeal, a motion to correct error,
on May 24, 2018 and asserted that he had been denied 781 days of pretrial
credit time plus 781 days of “day for day” credit. Odyssey, Motion to Correct
Error.1 The trial court denied the motion on May 31, 2018. Noble now appeals.
Discussion and Decision
[8] Noble argues that the trial court abused its discretion when it denied his motion
because he contends that he was unlawfully denied credit time for the time that
he spent incarcerated prior to his conviction and sentencing for felony murder.
Although Noble entitled his motion as a motion to correct error, it is more
properly considered a motion to correct erroneous sentence. An inmate who
believes he has been erroneously sentenced may file a motion to correct the
sentence pursuant to Indiana Code section 35-38-1-15.2 Neff v. State, 888 N.E.2d
1249, 1250-51 (Ind. 2008). We review a ruling on a motion to correct
erroneous sentence only for an abuse of discretion. Hobbs v. State, 71 N.E.3d
46, 48 (Ind. Ct. App. 2017) (citing Woodcox v. State, 30 N.E.3d 748, 750 (Ind.
1
The May 24, 2018 motion to correct error and the May 31, 2018 order denying that motion, which are the
subject of this appeal, were not included in the record on appeal and have not been included in Noble’s
supplemental appendix. We were able to find these documents on Odyssey, the Indiana courts case
management system, under Cause Number 45G02-9807-CF-127. See Ind. Appellate Rule 27 (“The Record
on Appeal . . . consist[s] of the Clerk’s Record and all proceedings before the trial court . . . whether or not
transcribed or transmitted to the Court on Appeal.”). A reference to a document found in “Odyssey,” will
contain that designation.
2
Indiana Code section 35-38-1-15 states:
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.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019 Page 4 of 8
Ct. App. 2015)), trans. denied. We will find an abuse of discretion only if the
trial court’s decision is against the logic and effect of the facts and
circumstances before it. Id.
[9] Here, Noble’s claim is barred by the doctrine of res judicata. “Res judicata is a
legal doctrine intended ‘to prevent repetitious litigation of disputes that are
essentially the same, by holding a prior final judgment binding against both the
original parties and their privies.’” Montgomery v. State, 58 N.E.3d 279, 280
(Ind. Ct. App. 2016) (quoting Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d
988, 993 (Ind. 2014)). It applies where there has been a final adjudication on
the merits of the same issue between the same parties. Id. This is the fourth
time that Noble has litigated a petition requesting credit for time he spent
incarcerated pretrial for his felony murder conviction. In the present appeal, he
is appealing the May 31, 2018 denial of his May 24, 2018 motion to correct
erroneous sentence. Previously, he has filed petitions on July 16, 2009,
September 20, 2016, and April 27, 2018, seeking the same relief as in his current
motion. All of his prior petitions were denied, and he failed to appeal any of
those denials. Therefore, because Noble has previously filed the exact same
claims as he raised in his May 24, 2018 motion, and because these claims have
already been decided, his claims are barred by the res judicata doctrine. See
Love v. State, 22 N.E.3d 663, 664-65 (Ind. Ct. App. 2014) (finding defendant’s
claims barred by res judicate where defendant’s claims had previously been
decided), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019 Page 5 of 8
[10] As stated earlier, Noble’s motion is properly considered as a motion to correct
erroneous sentence under Indiana Code section 35-38-1-15. Our Supreme
Court has held that a motion to correct erroneous sentence under that section
“may only be filed to address a sentence that is ‘erroneous on its face.’” Neff,
888 N.E.2d at 1251 (quoting Robinson v. State, 805 N.E.2d 783, 786 (Ind.
2004)). A motion to correct an erroneous sentence may only arise out of
information contained on the formal judgment of conviction. Id. A motion to
correct erroneous 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, and claims that require consideration of the proceedings
before, during, or after trial may not be presented by way of a motion to correct
erroneous sentence. Robinson, 805 N.E.2d at 787. Sentencing errors that are
not facially apparent must be raised on direct appeal or post-conviction relief.
Neff, 888 N.E.2d at 1251.
[11] In the present case, the trial court’s sentencing order specifically stated that
Noble was not to be “given any days [sic] credit toward the sentence of
imprisonment for time spent in confinement as a result of this charge for the
reason that the sentence is consecutive to the sentence imposed in U.S. District
Court, Northern District, Cause No. 2:97CR155 in which he has been serving
time since January 2000.” Suppl. Appellant’s App. Vol. 2 at 4. At the time of
sentencing, Noble had been serving a sentence under that federal cause number
since January 2000, which was prior to his May 31, 2001, sentencing date in the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019 Page 6 of 8
present case, and, therefore, resulted in mandatory consecutive sentences under
Indiana Code section 35-50-1-2. Id. at 3-4.
[12] In his motion to correct erroneous sentence, Noble attached documentation
from the Lake County Sheriff to support his contention that he was improperly
denied credit for time spent incarcerated prior to sentencing. Odyssey, Motion to
Correct Error. Noble’s request that we examine this documentation from the
Lake County Sheriff, which is separate from his sentencing order, in our review
as to whether the trial court erred in denying his motion demonstrates that this
is not a claim that is facially apparent. Therefore, his claim “may be raised only
on direct appeal and, where appropriate, by post-conviction proceedings.” See
Robinson, 805 N.E.2d at 787. In its previous denials of Noble’s motions, the
trial court had informed him that he must file a successive petition for post-
conviction relief in order to address the issue raised. Suppl. Appellant’s App. Vol.
2 at 15, 20, 27. We conclude that the trial court did not abuse its discretion in
denying Noble’s motion to correct erroneous sentence.
[13] However, even if this issue was proper for a motion to correct erroneous
sentence, Noble would not be entitled to relief. Noble contends that he is
entitled to credit for time he was incarcerated prior to his conviction and
sentencing for felony murder in the present case. However, he has already
received credit for this time because he had already been sentenced for, and was
serving time for, his conviction under Cause No. 2:97CR155 in the district
court. Credit is to be applied for time spent in confinement that is the result of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019 Page 7 of 8
the charge for which the defendant is being sentenced. Stephens v. State, 735
N.E.2d 278, 285 (Ind. Ct. App. 2000), trans. denied.
[14] Here, the trial court specifically declined to apply pretrial credit time to Noble’s
sentence because it was consecutive to his federal conviction and sentence,
under which he had been serving time prior to the trial and sentencing in this
case. Suppl. Appellant’s App. Vol. 2 at 3-4. Thus, the time Noble spent
incarcerated awaiting trial on his felony murder charge was time he was serving
his federal sentence, and he received credit for that time against the federal
sentence. To award credit for this time against the sentence in the present case
rather than against the aggregate of the consecutive sentences would result in
more credit to which Noble was entitled and would effectively enable him to
serve part of the consecutive sentences concurrently. Therefore, the trial court
did not abuse its discretion in refusing to award Noble pretrial credit time and
in denying his motion to correct erroneous sentence.
[15] Affirmed.
Vaidik, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019 Page 8 of 8
Tyrone L. Noble v. State of Indiana (mem. dec.)
Combined Opinion