MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Aug 14 2019, 5:57 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Caryn Nieman-Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Elijah Abraham Krider,                                   August 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-817
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1010-FD-503
                                                         48C03-1208-FD-1470
                                                         48C03-1208-FD-1509
                                                         48C03-1402-FB-354
                                                         48C03-1507-F6-1175
                                                         48C03-1604-F6-786

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019                      Page 1 of 14
                                               Case Summary

[1]   Elijah Abraham Krider appeals the denial of his motion to correct sentence.

      We affirm in part, reverse in part, and remand.


                                                      Issue

[2]   Krider raises two issues, which we consolidate and restate as whether the trial

      court erred in denying Krider’s motion to correct sentence.


                                                      Facts

[3]   Krider’s criminal history is replete with criminal charges, guilty pleas, and

      probation violations. Accordingly, Krider has a very dense and complicated

      criminal history, which resulted in several sentences and probation revocations.

      These multiple offenses created some procedural confusion and irregularities in

      Krider’s cases. While we have identified several irregularities in the record, we

      focus only on the issues Krider raises as stated above.


[4]   On January 23, 2013, Krider was sentenced, pursuant to a guilty plea, to the

      following:


              a. In Cause No. 48C03-1208-FD-1509 (“Cause 1509”): Count I,

              operating a vehicle with alcohol concentration equivalent to at least .08

              but less than .15, a Class C misdemeanor; and Count II, operating a

              vehicle while intoxicated with a prior conviction, a Class D felony.

              Krider was sentenced to three years executed.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019   Page 2 of 14
                 b. In Cause No. 48D03-1010-FD-503 (“Cause 503”): receiving stolen

                 property, a Class D felony. Krider was sentenced to three years, with six

                 months executed at the Indiana Department of Correction (the “DOC”)

                 and thirty months suspended to probation.


                 c. In Cause No. 48C03-1208-FD-1470 (“Cause 1470”): failure to return

                 to lawful detention, a Class D felony. Krider was sentenced to three

                 years, with six months executed at the DOC and thirty months

                 suspended to probation.


      All sentences were to be served consecutively, resulting in a sentence of nine

      years, with four years executed.


[5]   On December 1, 2013, Krider was charged with Count I, burglary, a Class B

      felony, and Count II, theft, a Class D felony, in Madison County, Indiana,

      under Cause No. 48C03-1402-FB-354 (“Cause 354”). 1 On January 29, 2014,

      Krider was charged with operating a vehicle while intoxicated, a felony, 2 in

      Calhoun County, Michigan. On February 3, 2014, the probation department

      filed a notice of violation of probation under Causes 503 and 1470 against

      Krider based on the two pending charges Krider obtained while on probation.




      1
        The CCS indicates that initially, at a sentencing hearing, Krider orally requested placement in problem
      solving court programs, and the trial court granted the request. The CCS further indicated that, “[s]hould
      Defendant not be accepted into or fails to successfully complete Problem Solving Court, Defendant shall be
      returned to Sentencing Court for further proceedings.” Appellant’s App. Vol. II p. 36.
      2
          The felony level was not specified in the petition.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019                  Page 3 of 14
      A corrected notice of violation of probation was filed on February 12, 2014, to

      add additional violations.


[6]   In 2015, Krider participated in drug court and problem solving court for his

      various offenses. On February 2, 2016, a notice of termination request for

      problem solving court was filed against Krider based on several violations. The

      petition requested termination of Krider’s participation in problem solving court

      for Causes 503, 1470, and 354.


[7]   On March 14, 2016, Krider entered a plea agreement in Cause No. 48C03-

      1507-F6-1175 (“Cause 1175”) and pleaded guilty to failure to return to lawful

      detention, a Level 6 felony. Krider was sentenced to one year of home

      detention.


[8]   Also on March 14, 2016, after an evidentiary hearing on the termination from

      problem solving court where Krider admitted that he failed to comply with the

      problem solving court’s participation agreement during probation, the trial

      court entered an order finding that Krider’s participation in problem solving

      court was terminated. Accordingly, the trial court revoked his probation and

      imposed the following:


              a. In Cause 503: a three-year suspended sentence on home detention.

              This three-year home detention was to run concurrently with Causes 354

              and 1470, and consecutively to Cause 1175.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019   Page 4 of 14
                b. In Cause 1470: a three-year suspended sentence on home detention.

                This three-year home detention was to run concurrently with Causes 354

                and 503, and consecutively to Cause 1175.


      In Cause 354, the trial court imposed a three-year suspended sentence on home

      detention. This three-year home detention sentence was to run concurrently with

      the probation revocations in Causes 1470 and 503, and consecutively to Cause

      1175. 3


[9]   Krider’s March 14, 2016 sentencing orders resulted in a total of four years in

      home detention. The trial court was clear this was the intended result, stating:


                THE COURT: To [Cause 1175], one (1) year of in home
                detention. As to sanctions in [Causes 354, 1470, and 503], three
                (3) additional years of in home detention. So does that mean
                four (4) years of in home detention?


      Tr. Amend. Vol. I pp. 38-39. Then later, the court reporter clarified:


                COURT REPORTER: So the probation violations are
                concurrent and consecutive to the new charge for a total of four
                (4) years correct?


                THE COURT: Yeah.




      3
       Unlike Causes 503 and 1470, in which the trial court titled its orders, “Order on Termination of Problem
      Solving Court,” the trial court’s order on Cause 354 was titled, “Sentencing Order,” presumably due to
      Krider’s initial placement in problem solving court. Appellant’s App. Vol. II pp. 83, 86, 89.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019                  Page 5 of 14
       Id. at 39. The trial court’s written order and the CCS entries support that the

       trial court intended Causes 354, 1470, and 503 to run concurrently. Thus,

       although Causes 503 and 1470 were previously ordered to be served

       consecutively, the trial court subsequently ordered the sentences to be served

       concurrently. The State did not appeal or file a motion to correct error.


[10]   On March 31, 2016, in Causes 503, 1470, 354, and 1175, the probation

       department filed a violation of executed sentence against Krider, alleging that

       Krider removed his electronic monitoring device and left his residence on

       March 29, 2016. Krider admitted the violation. After a hearing, the trial court

       entered an order on August 29, 2016, as to Cause 503 only, revoking Krider’s

       home detention, and ordering Krider’s sentence to be served at the DOC.


[11]   On December 28, 2016, in Cause No. 48C03-1604-F6-786 (“Cause 786”),

       Krider pleaded guilty and was sentenced to Count I, escape, a Level 6 felony,

       and Count II, criminal mischief, a Class B misdemeanor. Krider was sentenced

       on Count I to the DOC for two years, and on Count II to 180 days in the

       Madison County jail to be served concurrently. The sentences were suspended

       and Krider was placed on work release for two years. On October 19, 2017, 4




       4
         The petition is dated August 19, 2017; however, we assume this is a scrivener’s error due to the allegations
       in the petition.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019                     Page 6 of 14
       the residential security supervisor of the work release center petitioned to

       terminate Krider’s work release privilege in Cause 1175. 5


[12]   At a hearing on the petition to terminate work release, the parties argued about

       whether several of Krider’s sentences were to be served consecutively or

       concurrently. The confusion seemingly stemmed from the trial court’s March

       2016 order in which the sentences in Causes 503 and 1470 were originally

       ordered to be served consecutively in January 2013 and were subsequently

       ordered to be served concurrently in March 2016. The trial court attempted to

       explain the confusion, in the following exchange with the State:


                [THE STATE]: But I think what had happened is it wasn’t a
                modification, it was a misstatement of saying concurrent not
                knowing that they were originally sentenced as consecutive.


                THE COURT: Okay. It’s possible I mis-spoke or made a
                mistake.


       Id. at 63.




       5
         The CCS entries for Causes 503, 1470, 354, and 786 are silent as to a petition to terminate work release.
       The CCS for Cause 503 is silent from August 29, 2016, when the trial court sent an abstract of judgment to
       the DOC, until October 17, 2017 when a hearing was scheduled. In other words, on Cause 503, there does
       not appear to have been a petition to terminate Krider’s work release privilege in Cause 503. Similarly, the
       CCS for Cause 1490 is silent from August 8, 2016 until October 2, 2017, when a hearing on a probation
       violation was filed. The same is true for Cause 354 where the CCS is silent from August 2016 to October
       2017. Finally, in Cause 786, the CCS is silent from December 2016 until October 2017 when the hearing was
       scheduled. Based on this information, Krider argues in his brief that he did not receive proper notice
       regarding his alleged probation violations. Krider did not raise this issue to the trial court; therefore, this
       issue is waived.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019                    Page 7 of 14
[13]   The trial court ordered the following on October 30, 2017:


                a. Cause 503: found Krider violated probation, sentenced Krider to time

                served, and closed the case.


                b. Cause 1470: terminated Krider’s work release, revoked Krider’s

                probation, 6 and ordered Krider to serve two years and three months at

                the DOC to run concurrently with Cause 354, and consecutively to

                Causes 786, 1175, and 1509. 7


                c. Cause 354: terminated Krider’s work release, revoked Krider’s

                probation, and ordered Krider to serve three years at the DOC

                concurrently with Cause 1470, and consecutively to Causes 786, 1175,

                and 1509.


                d. Cause 786: terminated Krider’s work release, revoked Krider’s

                sentence, and ordered Krider to serve two years in the DOC

                consecutively to Causes 1175, 354, 1470, and 1509.




       6
        In Causes 1470, 354, and 786, the trial court’s order indicates that it was revoking Krider’s sentence;
       however, we assume the trial court meant probation.
       7
        As we will discuss further below, the trial court’s inclusion of Cause 1509 appears to be error because
       Krider completed his sentence on Cause 1509 in 2015.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019                     Page 8 of 14
                e. Cause 1175: the trial court sentenced Krider to one year executed at

                the DOC to run consecutively to Causes 354, 786, 1470, and 1509. 8


       The trial court also entered another abstract of judgment for the already-served

       sentence in Cause 1509. 9 Krider filed a “Motion to Correct Sentence” on

       November 13, 2017. Id. at 124. The trial court denied Krider’s motion on

       March 16, 2018. Krider now appeals.


                                                       Analysis

[14]   Krider appeals from the denial of his motion to correct sentence. We are

       unclear whether Krider intended to file this petition under Indiana Code

       Section 35-38-1-15 or Indiana Trial Rule 59. 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). 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). We also review rulings on motions to correct

       error under Indiana Trial Rule 59 for an abuse of discretion. Weida v. Kegarise,

       849 N.E.2d 1147, 1154 (Ind. 2006).




       8
        We assume the trial court also entered an order as to Cause 1175; however, that was not provided in
       Appellant’s Appendix.
       9
         As we discuss below, the State agrees that the abstract of judgment in Cause 1509 was incorrectly re-entered
       in October 2017.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019                   Page 9 of 14
[15]   At the outset, we note that so many errors in this case appeared to be driven by

       the trial court’s treatment of Krider’s sentences as one aggregate sentence,

       instead of treating each cause number and corresponding sentence as its own

       separate cause. This approach caused significant issues in Krider’s case and a

       lack of clarity for the parties and this Court.


                                                   A. Cause 1509

[16]   As the State indicates in its brief, it appears Krider completed his sentence in

       Cause 1509; however, the trial court entered an abstract of judgment on

       October 30, 2017, which indicated that Krider still needed to complete his

       three-year executed sentence in Cause 1509. The State concedes that we should

       remand the matter to the trial court “to rescind its October 30, 2017 abstract of

       judgment issued in FD-1509 so that the DOC can correct the matter in its

       offender information system and recalculate Krider’s projected release date.”

       Appellee’s Br. p. 24. We reverse and remand for the trial court to rescind its

       abstract of judgment in Cause 1509 and take appropriate action to close Cause

       1509, based on the State’s concession that Krider has already completed his

       sentence in this cause.


                                            B. Consecutive Sentences

[17]   Krider argues that his sentences on the other causes were also incorrect.

       Specifically, Krider contends “that since he was sentenced to 3 years concurrent

       on cases 503, 354 and 1470 on March 14, 2016, and the Court had previously

       revoked the sentence on 503 on August 28, 2016, that the cases ending 354 and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019   Page 10 of 14
       1470 should have also been closed out with time served.” Appellant’s Br. p. 19.

       Therefore, Krider believes he should “only be facing sanctions on [the] case[s]

       ending [in] 1175 and 786 with an aggregate sentence of 3 years, less credit

       time,” because, to do otherwise would be the trial court changing Krider’s

       sentences from concurrent—which the trial court ordered in 2016—back to

       consecutive. Id.


[18]   The State acknowledges that the confusion “in Krider’s sentence calculation

       arose at the March 14, 2016 revocation hearing when the trial court improperly

       altered Krider’s original sentences from consecutive to concurrent.” Appellee’s

       Br. p. 22. The State’s argument, in our view, is essentially that this mistake by

       the trial court in 2016 is immaterial because the trial court was without the

       authority to make the error it committed. See id. (“The trial court, though, was

       without the legal authority to alter the terms of Krider’s original sentences in

       [Causes 503 and 1470] to change his consecutive sentences to concurrent

       sentences after he was revoked from probation.”).


[19]   Pursuant to Indiana Code Section 35-38-2-3(h),


               If the court finds that the person has violated a condition at any
               time before the termination of the period, and the petition to
               revoke is filed within the probationary period, the court may
               impose one (1) or more of the following sanctions:


                        (1) Continue the person on probation, with or without
                            modifying or enlarging the conditions.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019   Page 11 of 14
                 (2) Extend the person’s probationary period for not more
                     than one (1) year beyond the original probationary
                     period.


                 (3) Order execution of all or part of the sentence that was
                     suspended at the time of initial sentencing.


Moreover, the trial court has authority to terminate Krider’s participation in the

problem solving court, and the trial court’s March 2016 sentencing orders in

Causes 503 and 1470 were titled, “Order on Termination of Problem Solving

Court.” 10 Appellant’s App. Vol. II pp. 83, 86. Pursuant to Indiana Code

Section 33-23-16-14.5(e):


        Except as provided in sections 14 and 15 of this chapter, if the
        problem solving court judge or hearing officer finds that an
        individual participating in a problem solving court program has
        violated a condition of the program, the problem solving court
        judge or hearing officer may:


                 (1) Continue the individual’s participation in the problem
                     solving court program with or without modifying or
                     expanding the individual’s conditions for participating
                     in the problem solving court program; or


                 (2) Terminate the individual’s participation in the problem
                     solving court program.




10
 As mentioned above, the trial court’s March 2016 order on Cause 354 was a “sentencing order.”
Appellant’s App. Vol. II p. 89.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019             Page 12 of 14
[20]   Based on the statutory limitations above, we agree with the State that the trial

       court erred in 2016 when the trial court changed Krider’s previously ordered

       consecutive sentences in Causes 503 and 1470 to concurrent sentences. See

       Jones v. State, 885 N.E.2d 1286, 1289 (Ind. 2008) (“[t]he action taken by a trial

       court in a probation revocation proceeding is not a sentencing.”) (internal

       quotations omitted); see also Wilkerson v. State, 918 N.E.2d 458, 463 (Ind. Ct.

       App. 2009) (noting that, “Ind. Code § 35-38-2-3(g) permits judges to sentence

       offenders using any one of or any combination of the enumerated options”

       (citations omitted)). The trial court deviated from the options enumerated in

       the probation revocation statute in its March 2016 orders. Moreover, the trial

       court also likely imposed an illegal sentence in 2016 because Krider appeared to

       have committed Cause 354 while on probation in Causes 1470 and 503. See

       Hill v. State, 28 N.E.3d 248, 351 (Ind. Ct. App. 2015) (“A sentence which is

       contrary to, or violative of, the penalty mandated by the applicable statute is an

       illegal sentence”) (quotations omitted). Accordingly, the trial court’s 2016

       order, indicating that these sentences should run concurrently instead of

       consecutively, contravenes Indiana Code Section 35-50-1-2(e), which requires

       that if a person commits a new offense while on probation “the terms of

       imprisonment for the crimes shall be served consecutively, regardless of the

       order in which the crimes are tried and the sentences are imposed.”


[21]   Accordingly, we are constrained to conclude that the trial court had the

       authority to correct the 2016 sentence, which was contrary to statute and

       therefore illegal. See Hill, 28 N.E.3d at 351 (“It is the duty of appellate courts to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019   Page 13 of 14
       bring illegal sentences into compliance”) (quotations omitted). We note that

       the State never appealed the order or filed a motion to correct error; however,

       the law indicates that the trial court is responsible for correcting an illegal

       sentence. See Lockhart v. State, 671 N.E.2d 893 (Ind. Ct. App. 1996) (“When the

       sentence imposed by the trial court is found to be improper, it is the general if

       not unanimous rule that the trial court has the power to vacate the illegal

       sentence and impose a proper one.”).


[22]   For this reason, we conclude that the trial court had the authority to correct its

       sentence, despite the passing of time. 11


                                                     Conclusion

[23]   The trial court did not abuse its discretion in denying Krider’s motion to correct

       sentence regarding the consecutive sentencing; however, we reverse and

       remand for the trial court to amend its abstract of judgment in Cause 1509 to

       reflect that Krider has served that sentence. We affirm in part, and reverse in

       part, and remand.


[24]   Affirmed in part, reversed in part, and remanded.


       Crone, J., and Bradford, J., concur.




       11
         Krider also argues that he did not receive proper notice regarding his alleged probation violations;
       however, because Krider did not raise this issue below, we deem it to be waived.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-817 | August 14, 2019                   Page 14 of 14
