      MEMORANDUM DECISION
                                                                       May 22 2015, 9:17 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
      Rodney S. Perry, Sr.                                     Gregory F. Zoeller
      Michigan City, Indiana                                   Attorney General of Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Rodney S. Perry, Sr.,                                    May 22, 2015

      Appellant-Defendant,                                     Court of Appeals Case No. 45A04-
                                                               1409-CR-435
              v.                                               Appeal from the Lake Superior
                                                               Court
                                                               The Honorable Clarence D. Murray,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 45G02-9701-CF-2




      Bradford, Judge.



                                            Case Summary
[1]   In 1997, Appellant-Defendant Rodney Perry pled guilty to two counts of Class

      A felony voluntary manslaughter. His convictions and sentence were affirmed


      Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-435 | May 22, 2015      Page 1 of 6
      on direct appeal and again following a 2006 petition for post-conviction relief

      (“PCR”). On August 19, 2014, Perry filed a motion to correct erroneous

      sentence, which was denied by trial court. Perry appeals the trial court’s denial

      of his motion. We affirm.



                            Facts and Procedural History
[2]   The underlying facts of this case were summarized as follows in Perry’s direct

      appeal:

              On January 6, 1997, Perry broke into the house of his estranged wife,
              Marsheila Perry, after his mother-in-law, Florida Clark, refused to let
              him in. Marsheila struck Perry with a baseball bat, but Perry then took
              the bat away. When Clark attempted to make a phone call, Perry
              struck her in the head with the bat at least four times. He then struck
              Marsheila in the head with the bat at least five times. Both Clark and
              Marsheila died. Perry’s three children were present when he killed
              Clark and Marsheila.
              The State charged Perry with two counts of murder. On June 26,
              1997, Perry agreed to plead guilty to two counts of Class A felony
              voluntary manslaughter. The agreement left sentencing entirely to the
              trial court’s discretion....
              On July 24, 1997, the trial court sentenced Perry to thirty-five years for
              each voluntary manslaughter conviction, to be served consecutively for
              a total sentence of seventy years. On July 14, 2000, Perry filed a
              petition for post-conviction relief (“PCR”), which alleged, inter alia,
              that the trial court abused its discretion in sentencing him. On May 1,
              2001, the trial court granted Perry permission to withdraw his PCR
              petition without prejudice. It does not appear that Perry ever refiled a
              PCR petition. However, on February 2, 2005, Perry filed a motion to
              correct erroneous sentence, which the trial court denied on February
              25, 2005. On June 28, 2005, Perry filed a verified petition for leave to
              file a belated notice of appeal, which the trial court granted the same
              day….

      Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-435 | May 22, 2015   Page 2 of 6
      Perry v. State, 845 N.E.2d 1093, 1094-95 (Ind. Ct. App. 2006).


[3]   On direct appeal, Perry argued that the trial court abused its discretion in

      imposing a seventy-year sentence and that the sentence was inappropriate in

      light of the nature of the offenses and his character. Id. at 1096. We affirmed

      Perry’s sentence. Id. at 1097.


[4]   On October 20, 2006, Perry filed a PCR petition in which he argued that his

      trial and appellate counsel rendered ineffective assistance. Perry v. State, 904

      N.E.2d 302, 306 (Ind. Ct. App. 2009). The PCR court denied Perry’s petition

      and this court affirmed that decision on appeal. Id. at 312.


[5]   On August 19, 2014, Perry filed a motion to correct erroneous sentence,

      arguing that the trial court failed to properly consider his guilty plea to be a

      mitigating factor during sentencing. The trial court denied Perry’s motion.



                                Discussion and Decision
[6]   The basis for a motion to correct an erroneous sentence is Indiana Code section

      35-38-1-15, which reads as follows:

              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 45A04-1409-CR-435 | May 22, 2015   Page 3 of 6
[7]   In Robinson v. State, 805 N.E.2d 783 (Ind. 2004), the Indiana Supreme Court

      addressed the manner in which a motion to correct an erroneous sentence may

      be used.

              While the motion to correct sentence is available as an alternate
              remedy, we have repeatedly cautioned that it is appropriate only when
              the sentence is erroneous on its face…. [T]he motion to correct
              sentence could be used to correct errors such as illegal sentences in
              violation of express statutory authority or an erroneous interpretation
              of a penalty provision of a statute, but would not be available for
              claims raising constitutional issues or issues concerning how the trial
              court weighed factors in imposing sentence.
                                                 ***
              When claims of sentencing errors require consideration of matters
              outside the face of the sentencing judgment, they are best addressed
              promptly on direct appeal and thereafter via post-conviction relief
              proceedings where applicable. Use of the statutory motion to correct
              sentence should thus be narrowly confined to claims apparent from the
              face of the sentencing judgment, and the “facially erroneous”
              prerequisite should henceforth be strictly applied…. We therefore hold
              that 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 in light of the statutory authority. Claims that require
              consideration of the proceedings before, during, or after trial may not
              be presented by way of a motion to correct sentence.
                                                 ***
              In addition to limiting a motion to correct sentence to errors apparent
              on the face of the judgment, Indiana case law has long emphasized
              that the preferred procedure is by way of a petition for post-conviction
              relief…. As to sentencing claims not facially apparent, the motion to
              correct sentence is an improper remedy. Such claims may be raised
              only on direct appeal and, where appropriate, by post-conviction
              proceedings.


      Id. at 786-87 (citations and quotations omitted).


      Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-435 | May 22, 2015   Page 4 of 6
[8]    Perry claims that his sentence was erroneous because the trial court failed to

       consider his guilty plea as a mitigating factor. This argument fails, for one,

       because it does not raise a claim that the sentence is facially erroneous. In order

       to determine the validity of Perry’s claim, we would have to look beyond the

       sentencing order, which is not appropriate on review of a motion to correct an

       erroneous sentence. Id. For that reason, the trial court properly denied Perry’s

       motion.


[9]    Additionally, Perry’s motion must be denied based on the doctrine of res

       judicata.

               The doctrine of res judicata prevents the repetitious litigation of that
               which is essentially the same dispute. [Ben-Yisrayl v. State, 738 N.E.2d
               253, 258 (Ind. 2000)]. Res judicata mandates that when an appellate
               court decides a legal issue, both the trial court and the court on appeal
               are bound by that determination in any subsequent appeal involving
               the same case and relatively similar facts. Badger v. State, 754 N.E.2d
               930, 935 (Ind. Ct. App. 2001) (citing State v. Huffman, 643 N.E.2d 899,
               901 (Ind. 1994)).
       Saunders v. State, 794 N.E.2d 523, 527 (Ind. Ct. App. 2003).


[10]   In his direct appeal, Perry argued that “The trial court failed to identify the

       significant aggravating and mitigating circumstances and did not balance the

       aggravators and mitigators.” Perry, 845 N.E.2d at 1097 (citing Appellant’s Br.

       p. 6). Perry now makes essentially the same argument––that the sentence is

       erroneous for failure by the trial court to consider his guilty plea as a mitigating

       factor. Because this argument was raised and ruled on in Perry’s direct appeal,




       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-435 | May 22, 2015   Page 5 of 6
       we are bound by that determination and Perry is not permitted to re-litigate the

       issue.


[11]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-435 | May 22, 2015   Page 6 of 6
