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).
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018   Page 2 of 9
[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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018   Page 3 of 9
       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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018   Page 4 of 9
       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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018                     Page 5 of 9
       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
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018   Page 6 of 9
       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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018                Page 7 of 9
       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.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018                     Page 8 of 9
       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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1052 | December 12, 2018                  Page 9 of 9
