Appellant Pro Se Attorney for Appellee
Alphonso Washington Stephen Carter
Pendleton, Indiana Office of Attorney
General
Indianapolis, Indiana
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__
In the
Indiana Supreme Court
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No. 45S03-0403-PC-114
Alphonso Washington,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Court, No. 45G04-9708-CF-181
The Honorable Thomas P. Stefaniak, Jr., Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0308-
PC-311
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March 10, 2004
Dickson, Justice.
The defendant, Alphonso Washington, seeks transfer from the order of
the Court of Appeals granting the State's motion to dismiss the appeal
before the filing of the appellant's brief. The dismissal was based upon
the appellant's case summary which stated that the defendant was appealing
from the denial of a motion to correct sentence that was filed with
authorization after prior post-conviction proceedings. The Court of
Appeals dismissed the appeal on grounds that the defendant failed to comply
with Indiana Post-Conviction Rule 1(12), which permits the filing of such
successive petitions only upon prior authorization by the court. We grant
transfer and affirm the judgment of the trial court.
As we hold today in Robinson v. State, ___ N.E.2d ___ (Ind. 2004), a
motion to correct sentence pursuant to Indiana Code § 35-38-1-15 asserting
a claim that is susceptible to determination from the face of the
sentencing judgment is not in the nature of a post-conviction proceeding
and is not subject to the requirement for prior authorization in P-C R.
1(2). Id. at ___ (slip opin. at 5). The defendant's appeal is not subject
to dismissal on this grounds.
While the defendant's case summary identifies the appeal as
challenging the denial of his motion to correct sentence, the defendant has
not yet filed his appellant's brief, and we thus do not know whether he is
challenging the abstract of judgment or the actual sentencing judgment of
the trial court. Delaying this matter to permit further briefing is
unnecessary because the abstract of judgment is not subject to attack by a
motion to correct sentence, Robinson, ___ N.E.2d at ___ (slip opin. at
14), and the sentencing judgment here is adequate to designate pre-sentence
credit time. Upon our examination of the trial court's order of judgment,
however, we note that the trial court sentencing judgment states: "The
defendant is given credit for 140 days pretrial confinement time."
(emphasis added). While identifying confinement time, the judgment does
not separately designate the amount of credit time earned thereby. In
Robinson, we hold today that "[s]entencing judgments that report only days
spent in pre-sentence confinement and fail to expressly designate credit
time earned shall be understood by courts and by the Department of
Correction automatically to award the number of credit time days equal to
the number of pre-sentence confinement days." Id. at ___ (slip opin. at
11). Applying this presumption, the defendant's sentencing judgment
establishes that he is entitled to 140 days credit for time spent in pre-
trial confinement plus 140 days of credit time.
If the defendant wishes to contest the accuracy of the sentencing
judgment's declaration regarding the number of days in pretrial
confinement, such a claim would be outside the face of the sentencing
judgment. The motion to correct sentence may not be used to present such
a claim. Id. at ___ (slip opin. at 4).
Regardless of whether the defendant's appeal from the denial of his
motion to correct sentence seeks to challenge the abstract of judgment or
the sentencing judgment itself, the result is the same. The judgment of
the trial court is affirmed.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.