MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Apr 30 2020, 7:47 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Richard Dodd                                              Curtis T. Hill, Jr.
Westville, Indiana                                        Attorney General of Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Dodd,                                             April 30, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-CR-3126
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Elizabeth C.
Appellee-Respondent.                                      Hurley, Judge
                                                          Trial Court Cause No.
                                                          71D08-9712-CF-550



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020           Page 1 of 6
[1]   Richard Dodd, pro se, appeals the denial of his motion to correct erroneous

      sentence in the St. Joseph Superior Court. Dodd presents the issue of whether

      the trial court abused its discretion in denying the motion.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Dodd committed the offenses underlying this appeal in December 1997. He was

      charged and convicted of Class A felony attempted murder and Class C felony

      burglary following a jury trial. Dodd was originally sentenced to the maximum

      term of fifty years for attempted murder and the maximum term of eight years

      for burglary, to be served consecutively based on the sentencing court’s

      identification of multiple aggravating factors. On direct appeal, a panel of this

      Court upheld Dodd’s convictions and sentence. Dodd v. State, No. 71A03-9809-

      CR-394 (Ind. Ct. App. July 23, 1999), trans. denied.


[4]   A subsequent motion to correct erroneous sentence was denied by the trial

      court in 2006 and affirmed on appeal. Dodd v. State, No. 71A05-0605-PC-234

      (Ind. Ct. App. May 9, 2007). Dodd filed a successive petition for post-

      conviction relief, and at the conclusion of a post-conviction relief hearing, the

      State conceded that Dodd’s convictions were part of a single episode of criminal

      conduct for sentencing purposes under Indiana Code section 35-50-1-2.

      Accordingly, the post-conviction court determined that Dodd’s consecutive

      sentences exceeded the maximum sentence permitted by statute and remanded

      the case for resentencing.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020   Page 2 of 6
[5]   In November 2013, following a hearing, the resentencing court imposed

      consecutive sentences of fifty years for attempted murder and five years for

      burglary, the maximum sentence permitted for this episode of criminal conduct.

      Dodd appealed, alleging that the resentencing court abused its discretion by

      failing to consider mitigating factors. This Court found no abuse of discretion in

      Dodd’s resentencing and affirmed his fifty-five-year sentence in 2014. Dodd v.

      State, No. 71A03-1312-CR-475 (Ind. Ct. App. July 29, 2014).


[6]   Dodd filed a motion to correct erroneous sentence on October 19, 2018,

      alleging that his fifty-five-year sentence exceeded the maximum sentence

      permitted by statute. The trial court denied Dodd’s motion to correct erroneous

      sentence on December 12, 2018, writing in part:


              2. In this case, the Defendant does not allege that the sentence
              itself is erroneous on its face. Instead, Defendant challenges the
              sentence, arguing that the sentence violates the law because he
              interprets the law to say that the Court had to sentence him to the
              advisory sentences for his offenses.


              3. The Defendant requests relief that is not appropriate for a
              Motion to Correct Erroneous Sentence. Furthermore, the
              Defendant has litigated the issue of his sentence multiple times
              unsuccessfully. Most recently, the Indiana Court of Appeals
              found that he waived the issue in his successive Petition for Post-
              Conviction Relief, although added, via a footnote, the following:


                       Waiver notwithstanding, Dodd’s claim is without merit
                       because he has failed to meet his burden of showing that
                       [resentencing] counsel rendered deficient performance or
                       that he was prejudiced by counsel’s failure to pursue the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020   Page 3 of 6
                       issue in his resentencing appeal. See Robertson v. State, 871
                       N.E.2d 280, 285-86 (Ind. 2009) (explaining the application
                       of Indiana Code § 35-50-2-1.3(c) and revealing the lack of
                       merit in Dodd’s argument that the statute required the
                       resentencing court to impose an advisory term for each of
                       his convictions). Richard Dodd v. State of Indiana, Court of
                       Appeals case no. 71-A03-1702-PC-452, pg. 15 fn. 6.


      Appellant’s App. p. 9. Dodd now appeals.


                                     Discussion and Decision
[7]   We review the denial of a motion to correct erroneous sentence for an abuse of

      discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An abuse

      of discretion will be found only when the trial court’s decision is against the

      logic and effect of the facts and circumstances before it. Id. A defendant who

      believes that he has been erroneously sentenced may file a motion to correct an

      erroneous sentence, which are designed to provide a prompt and uncomplicated

      process to correct sentences. Neff v. State, 888 N.E.2d 1249, 1250–51 (Ind.

      2008). Indiana Code section 35-38-1-15 provides:


              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.


[8]   Motions made pursuant to Indiana Code section 35-38-1-15 may only be used

      to attack a sentence that is “erroneous on its face.” Robinson v. State, 805 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020   Page 4 of 6
       783, 786 (Ind. 2004). A sentence is defective on its face if it violates express

       statutory authority in effect at the time the sentence was pronounced. Woodcox

       v. State, 30 N.E.3d 748, 750 (Ind. Ct. App. 2015). When claims of sentencing

       errors require consideration of matters outside the face of the sentencing

       judgment, the alleged errors may only be attacked by direct appeal or, when

       appropriate, by petitions for post-conviction relief. Robinson, 805 N.E.2d at 787.

       “Claims that require consideration of the proceedings before, during, or after

       trial may not be presented by way of a motion to correct sentence.” Id.


[9]    Here, Dodd argues that the trial court abused its discretion in denying his

       motion because the resentencing court misinterpreted the applicable sentencing

       statute. Appellant’s Br. at 6. The State argues that Dodd’s motion to correct

       erroneous sentence is impermissible under Robinson because it is not a facial

       attack on the sentencing order, and thus the trial court did not abuse its

       discretion in denying his motion. We agree.


[10]   Dodd contends that his fifty-five-year sentence was contrary to the statutory

       mandate of Indiana Code section 35-50-2-1.3(c)(1), which identifies the

       circumstances under which an advisory sentence must be imposed. Dodd

       argues that, under this statute, the resentencing court was required to have

       imposed the advisory terms for each of his convictions. Dodd’s statutory

       challenge, however, involves his dispute with whether the offenses for which he

       was sentenced involved serious bodily injury or arose out of a single episode of

       criminal conduct. Appellant’s Br. at 7. Such factors cannot be evaluated

       without looking at the facts and circumstances underlying Dodd’s convictions,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020   Page 5 of 6
       which are beyond the face of the sentence itself and therefore unavailable for

       review as part of a motion to correct erroneous sentence. See Davis v. State, 937

       N.E.2d 8, 11 n.1 (Ind. Ct. App. 2010), trans. denied (no abuse of discretion

       where defendant claimed that two convictions were one episode of criminal

       conduct because such claim required “consideration of the evidence presented

       at trial and thus definitely falls outside the ‘face of the sentencing judgment.’”)

       (quoting Robinson, 805 N.E.2d at 787). Therefore, Dodd is unable to raise this

       challenge to his sentence by means of a motion to correct erroneous sentence,

       and the trial court did not abuse its discretion in denying the motion.


                                                 Conclusion
[11]   Accordingly, we hold that the trial court properly denied Dodd’s motion to

       correct erroneous sentence.


[12]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020   Page 6 of 6
