MEMORANDUM DECISION
                                                                 Sep 15 2015, 8:37 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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Clifford M. Davenport                                     Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana

                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

John F. Philpott,                                        September 15, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1412-CR-884
        v.                                               Appeal from the Madison County
                                                         Circuit Court;
                                                         The Honorable Thomas Newman,
State of Indiana,                                        Jr., Judge;
Appellee-Plaintiff.                                      48D03-9505-CF-161




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1412-CR-884 | September 15, 2015   Page 1 of 5
[1]   John F. Philpott appeals the denial of his motion to correct erroneous sentence.

      We affirm.


                                      Facts and Procedural History 1
[2]   On July 6, 1996, Philpott was convicted of one count of Murder 2 and three

      counts of Class A felony attempted murder. 3 On September 23, the trial court

      sentenced Philpott to fifty years for each count of Class A felony attempted

      murder, to be served concurrent with one another but consecutive to a fifty-year

      sentence for murder. Philpott filed a direct appeal, and we affirmed.


[3]   Starting on November 17, 2004, and continuing until the motion to correct

      erroneous sentence now before us, Philpott has filed, pro se, three motions to

      correct erroneous sentence, a petition for post-conviction relief, a request to file

      a successive petition for post-conviction relief, and two petitions for

      modification of sentence. All were denied. He attempted to appeal two of




      1
        Philpott tendered a brief with over thirty pages of facts and procedural history, detailing each step of
      Philpott’s trial court process from the moment he was arrested in 1995. That hindered our review. We
      remind counsel of Indiana Appellate Rules 46(A)(5) and 46(A)(6), which state, in relevant part:
                 (5) Statement of Case. This statement shall briefly describe the nature of the case, the
                 course of the proceedings relevant to the issues presented for review, and the dispositions
                 of these issues . . .
                 (6) Statement of Facts. This statement shall describe the facts relevant to the issues
                 presented for review but need not repeat what is in the statement of the case.
      (Italics in original, bold added for emphasis).
      2
          Ind. Code § 35-42-1-1 (1993).
      3
          Ind. Code § 35-42-1-1 (1993) (murder); Ind. Code § 35-41-5-1 (1977) (attempt).


      Court of Appeals of Indiana | Memorandum Decision 48A02-1412-CR-884 | September 15, 2015                 Page 2 of 5
      those decisions, but the appeals were dismissed because Philpott did not file an

      appellant’s brief in one and a case summary in the other.


[4]   On October 22, 2014, Philpott filed, pro se, his fourth motion to correct

      erroneous sentence. On November 24, the trial court conducted a hearing,

      during which Philpott and the trial court had this exchange:

              THE COURT:            Okay. Have you asked the State Public Defender
              to represent you on this?
              DEFENDANT:                No. I can ask one.
              THE COURT:         You want to go ahead and present it on your
              own, Mr. Philpott?
              DEFENDANT:            (indiscernible) . . . you know I kind of would
              rather have a public defender help me out.
              THE COURT:                Okay.
      (Tr. at 4-5.) The trial court then discussed the motion and concluded it would

      be best addressed as a successive petition for post-conviction relief. The trial

      court then stated, “So there fore [sic] it has to have [sic] a Post Conviction

      Relief. So I would. [sic] If I were you I would ask the State Public Defender to

      assist you on this, Mr. Philpott. Okay and try to get a subsequent Post

      Conviction Petition before the Appeals Court.” (Id. at 8-9.) The trial court

      then denied Philpott’s motion. In its order, the trial court appointed a public

      defender to “perfect timely appeal.” (App. at 27.)


                                     Discussion and Decision
[5]   Our standard of review is well-settled:




      Court of Appeals of Indiana | Memorandum Decision 48A02-1412-CR-884 | September 15, 2015   Page 3 of 5
              [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
              erroneous sentence.
      Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Claims that require

      consideration of the proceedings are best addressed on direct appeal or as part

      of a petition for post-conviction relief, if applicable. Id.


      When reviewing a decision on a Motion to Correct Erroneous Sentence, we

      “defer to the trial court’s factual findings and review such decision for an abuse

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

      abuse of discretion occurs when the trial court’s decision is against the logic and

      effect of the facts and circumstances before it. Id. The trial court’s legal

      conclusions are reviewed de novo. Id.


[6]   In his pro se motion to correct erroneous sentence, Philpott argued:

              The sentence is inappropriate in light of the nature of the offense and
              the character of the offender. The trial court erred by considering
              improper aggravating circumstances as a basis for both imposing
              consecutive sentences and enhancing the defendant’s sentence. Also,
              the trial court did not explain why the aggravating circumstances
              warranted consecutive sentences as opposed to enhanced concurrent
              sentences. The trial court fell short of the requirement that it explain
              its reasons for selecting the sentence imposed.
      (App. at 472.) Philpott’s argument concerns information presented at his

      sentencing hearing, and thus requires consideration of the “proceedings before,

      during, or after trial,” which is not permitted by way of a motion to correct


      Court of Appeals of Indiana | Memorandum Decision 48A02-1412-CR-884 | September 15, 2015   Page 4 of 5
      erroneous sentence. See Robinson, 805 N.E.2d at 787. Therefore, the trial court

      did not abuse its discretion when it denied Philpott’s motion to correct

      erroneous sentence because he did not allege an error that was “clear from the

      face of the judgment imposing the sentence in light of the statutory authority.”

      Id. Accordingly, we affirm. 4


[7]   Affirmed.


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




      4
       Philpott also argues the trial court denied him his right to counsel under the Sixth Amendment of the
      United States Constitution because it did not appoint him counsel when he requested it during the hearing.
      However, prior to his conversation regarding possible counsel with the trial court, he argued his sentence
      should be corrected so that it was not consecutive, which, in addition to his argument regarding aggravating
      and mitigating circumstances in relation to his sentence, is also not a permissible argument by way of a
      motion to correct erroneous sentence. Therefore, the outcome would not have been different even if Philpott
      had been appointed counsel and any error the trial court committed in not appointing Philpott counsel was
      harmless. See Dolezal v. Goode, 433 N.E.2d 828, 835 (Ind. Ct. App. 1982) (trial court error was harmless
      because it did not affect the final outcome of the case).

      Court of Appeals of Indiana | Memorandum Decision 48A02-1412-CR-884 | September 15, 2015         Page 5 of 5
