Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                    Oct 22 2014, 9:47 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

DAVID G. TAYLOR                                   GREGORY F. ZOELLER
Carlisle, Indiana                                 Attorney General of Indiana

                                                  LYUBOV GORE
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID G. TAYLOR,                                  )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )       No. 48A04-1405-CR-220
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Thomas Newman, Jr., Judge
                              Cause No. 48D03-8404-CF-34


                                       October 22, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

       David Taylor appeals the denial of his motion to correct erroneous sentence. We

reverse and remand.

                                             Issue

       The restated issue before us is whether the consecutive sentencing portion of

Taylor’s sentence is facially erroneous and illegal in light of the law that existed at the time

of sentencing.

                                            Facts

       On April 10, 1984, Taylor committed an armed robbery in Madison County at about

1:22 a.m. See Taylor v. State, 506 N.E.2d 468, 469 (Ind. 1987). At about 4:30 a.m. on the

same date, Taylor committed another armed robbery in Johnson County. See id.; Taylor

v. State, 496 N.E.2d 561, 563 (Ind. 1986). After the Johnson County robbery, Taylor and

his accomplice abducted two women; Taylor sexually assaulted one of the women while

his accomplice assaulted the other. See Taylor, 496 N.E.2d at 563-64. In the Johnson

County case, Taylor was convicted of armed robbery, rape, criminal deviate conduct, and

two counts of criminal confinement. See id.

       On July 26, 1984, Taylor was found guilty by a jury of one count of Class B felony

robbery and one count of Class B felony conspiracy to commit robbery in the Madison

County case. On August 21, 1984, the trial court imposed sentences of twenty years for

each conviction and ordered “that the sentences shall run consecutive to each other and to

any other sentences that the defendant may have received or may receive from any other



                                               2
county.” App. p. 1.1 Taylor appealed his convictions, arguing only that the trial court had

erred in allowing the State to introduce evidence of the Johnson County robbery. Our

supreme court affirmed.

        Taylor subsequently filed a petition for post-conviction relief.                     Among the

arguments raised, Taylor claimed appellate counsel in his direct appeal had been ineffective

for not challenging the trial court’s order that his sentences be served consecutive to “any

other sentences that the defendant may have received or may receive from any other

county.” Id. This court rejected that argument, finding appellate counsel’s performance

was not deficient because caselaw at the time of the direct appeal did not yet exist that

would have supported the consecutive sentencing argument. See Taylor v. State, No.

48A02-0008-PC-527, slip op. pp. 9-11 (Ind. Ct. App. Apr. 6, 2001) (citing Kendrick v.

State, 529 N.E.2d 1311 (Ind. 1988) and McCurry v. State, 718 N.E.2d 1201 (Ind. Ct. App.

1999), trans. denied). Our supreme court denied transfer.

        On September 20, 2012, Taylor filed a motion to correct erroneous sentence, again

attacking the consecutive sentencing language of the sentencing order. The trial court

denied the motion without conducting a hearing. Taylor now appeals.

                                                Analysis

        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
1
  The State argues that Taylor has waived his appellate arguments by not including a copy of the sentencing
order in his appendix. Taylor did include a copy of the CCS, which contains a full verbatim recitation of
the sentencing order. We deem this to be sufficient to review Taylor’s motion to correct erroneous sentence,
especially because “[a]ny party’s failure to include any item in an Appendix shall not waive any issue or
argument.” Ind. Appellate Rule 49(B).

                                                     3
              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.

Motions to correct erroneous sentence are appropriate only to address sentencing errors

that are clear from the face of the sentencing judgment in light of applicable statutory

authority. Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). “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. Additionally, a motion to correct sentence based on

clear facial error is not the equivalent of a post-conviction petition and does not require the

seeking of prior authorization necessary for a successive post-conviction relief petition in

the event a defendant already has pursued such relief. Id. at 788.

       A trial court must sentence convicted criminals within statutorily prescribed limits,

and any sentence that is contrary to, or violative of, the penalty mandated by the applicable

statute is an illegal sentence. Ben-Yisrayl v. State, 908 N.E.2d 1223, 1228 (Ind. Ct. App.

2009), trans. denied. A sentence that exceeds statutory authority constitutes fundamental

error and is subject to correction at any time. Id. We are duty bound to correct an illegal

sentence and cannot ignore such an illegality. Hull v. State, 799 N.E.2d 1178, 1181 (Ind.

Ct. App. 2003); see also Puckett v. State, 843 N.E.2d 959, 963 (Ind. Ct. App. 2006).

       A trial court generally cannot order consecutive sentences in the absence of express

statutory authority to do so. Lee v. State, 816 N.E.2d 35, 37 (Ind. 2004). At the time

Taylor committed these offenses, the discretionary consecutive sentencing statute, Indiana

Code Section 35-50-1-2(a), stated, “Except as provided in subsection (b) of this section,

                                              4
the court shall determine whether terms of imprisonment shall be served concurrently or

consecutively.” This language only allowed trial courts to impose consecutive sentences

in cases where a trial court was meting out two or more terms of imprisonment

contemporaneously. Lee, 816 N.E.2d at 37 (citing Kendrick v. State, 529 N.E.2d 1311,

1312 (Ind. 1988). In other words, as interpreted by Kendrick and like cases, it was well-

settled that a trial court generally could not order a sentence to be served consecutive to

another sentence entered by another court. Davidson v. State, 763 N.E.2d 441, 445 (Ind.

2002), cert. denied; see also Seay v. State, 550 N.E.2d 1284, 1289 (Ind. 1990); Frazier v.

State, 512 N.E.2d 215, 217 (Ind. Ct. App. 1987) (holding trial court lacked authority under

Indiana Code Section 35-50-1-2(a) to order sentence to be served consecutive to sentence

yet to be imposed in a different case in which defendant had pled guilty but not yet been

sentenced), trans. denied.

       The sole exception to this rule was found in subsection (b) of Indiana Code Section

35-50-1-2 as it existed in 1984, which mandated the imposition of consecutive sentences

“[i]f a person commits a crime: (1) after having been arrested for another crime; and (2)

before the date he is discharged from probation, parole, or a term of imprisonment imposed

for that other crime,” regardless of whether the trial court was contemporaneously

imposing sentence for both crimes. However, our supreme court required a trial court

imposing consecutive sentences to expressly indicate in the sentencing order whether the

mandatory provision, subsection (b), or the discretionary provision, subsection (a), applied

in order for a consecutive sentencing order to be appropriate. Bartruff v. State, 553 N.E.2d

485, 487-88 (Ind. 1990). In 1994, Indiana Code Section 35-50-1-2 was amended to

                                             5
effectively overrule the Kendrick line of cases by including language allowing the

discretionary imposition of consecutive sentences “even if the sentences are not imposed

at the same time.” I.C. § 35-50-1-2(c).

       Taylor argues that Indiana Code Section 35-50-1-2, as it existed at the time of his

conviction and sentencing and as interpreted by Kendrick and similar cases, made the trial

court’s sentencing order facially erroneous.     The State makes several arguments in

response, most of which do not address the merits of Taylor’s claim. First, the State argues

that Taylor has waived his claim regarding the illegality of the sentence by not challenging

it in his direct appeal or in his post-conviction petition. We directly rejected an argument

such as this in Watkins v. State, 588 N.E.2d 1342 (Ind. Ct. App. 1992). In that case, a

defendant failed on direct appeal to challenge his 1983 sentence as illegally imposing

consecutive sentences in violation of Kendrick. Upon later filing of a motion to correct

erroneous sentence, we held the defendant was entitled to correction of the sentence

because it was facially erroneous in violation of express statutory authority, despite his

failure to challenge it on direct appeal. Watkins, 588 N.E.2d at 1344-45. We noted our

duty to correct facially erroneous sentences and also stated, “[t]he length of time

intervening between an original erroneous sentence and the correction thereof does not

affect the power of the courts to correct the sentencing error.” Id. at 1344. Per Watkins’s

clear holding, Taylor has not waived his facial challenge to his sentence by failing to

challenge it earlier. We also note that the only situation under which our supreme court

has found that a defendant may waive objection to an illegal sentence is where a defendant

pleads guilty under an agreement that expressly specifies imposition of an illegal sentence;

                                             6
there has been no other situation in which our supreme court has found waiver of a

challenge to an illegal sentence. See Crider v. State, 984 N.E.2d 618, 625 (Ind. 2013).

       The State makes a second argument that we rejected in Watkins. Specifically, the

State notes that the earliest case Taylor cites, Frazier, was not decided until three years

after Taylor was sentenced and, therefore, Taylor cannot rely upon it in challenging his

sentence. In Watkins, the State made a similar argument, namely, that the defendant could

not retroactively rely upon the 1988 Kendrick opinion in challenging his sentence imposed

in 1983. We disagreed, holding that Kendrick did not create a “new rule” whose retroactive

application was barred in cases that had become final before the rule was announced. Id.

at 1345. Rather, we noted that Kendrick simply interpreted the consecutive sentencing

statute as it existed at the time of the defendant’s sentencing and that there did not exist

any contrary authority at the time, nor in fact was there any authority that would have

authorized the trial court’s consecutive sentencing order. Id. Thus, pursuant to Watkins,

cases such as Frazier and Kendrick are binding upon our interpretation of the legality of

Taylor’s sentence, despite their having been decided after that sentence was imposed. See

id.

       Next, the State argues that Taylor’s challenge to his sentence is barred by res

judicata, because he challenged the consecutive sentencing order in his post-conviction

relief petition under the guise of ineffective assistance of appellate counsel. As the State

correctly notes, the doctrine of res judicata generally prevents the repetitious litigation of

essentially the same dispute, and cannot be avoided merely by using different language to

phrase an issue and define an alleged error. Ben-Yisrayl v. State, 738 N.E.2d 253, 258

                                              7
(Ind. 2000), cert. denied. Again, however, there is authority, directly contrary to the State’s

argument, holding res judicata insufficient by itself to justify denying a motion to correct

erroneous sentence, because of the fundamentally erroneous nature of a trial court’s

imposition of a sentence outside of statutory authority. See Parrett v. State, 800 N.E.2d

620, 623 (Ind. Ct. App. 2003); Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000).

We also reiterate that our supreme court has deemed that the filing of a motion to correct

erroneous sentence following denial of a post-conviction relief petition does not require

the seeking of prior appellate court authorization necessary for successive post-conviction

relief petitions. Robinson, 805 N.E.2d at 788. In reaching this holding, our supreme court

overruled cases from this court to the contrary, which had relied on the interest of finality

in requiring defendants to obtain permission to file a successive post-conviction relief. See,

e.g., Waters v. State, 703 N.E.2d 688, 689 (Ind. Ct. App. 1998), trans. denied. The

Robinson holding would seem to undermine relying upon res judicata as a basis for denying

a motion to correct erroneous sentence.

       Finally, we observe that, in filing his post-conviction relief petition, Taylor was

required to frame his challenge to his sentence as one of ineffective assistance of counsel;

he was not permitted to bring a freestanding claim of error in his sentencing at that time,

even if it was fundamental error. See Bailey v. State, 472 N.E.2d 1260, 1263 (Ind. 1985).

And, in rejecting Taylor’s ineffective assistance claim, we clearly relied upon the sufficient

performance prong, noting that Kendrick had not yet been decided when Taylor’s direct

appeal took place and refusing to fault counsel for failing to anticipate that case’s holding.

See Taylor, No. 48A02-0008-PC-527, slip op. pp. 9-11. We did not issue any opinion on

                                              8
whether Taylor would have been prejudiced if counsel’s performance had been deficient;

in other words, we did not hold that Taylor would not have been successful on direct appeal

if he had challenged his consecutive sentences or otherwise opine upon the legality of the

sentence. Now, Taylor has brought his claim of facial sentencing error through the proper

vehicle for such claims: a motion to correct erroneous sentence. We will address the merits

of that motion.

       The trial court’s sentencing order required that the sentences Taylor received in

Madison County “shall run consecutive . . . to any other sentences that the defendant may

have received or may receive from any other county.” App. p. 1. The State contends that

this language is not facially erroneous because, at least in part, it might only have required

the sentence to be served consecutive to another sentence that Taylor already was serving

when he committed the Madison County offenses; if such was the case, the mandatory

consecutive sentencing provision in effect at the time would apply. See Haggard v. State,

445 N.E.2d 969, 973 (Ind. 1983). Indeed, the sentencing order refers to Taylor having been

“on parole at the time of the commission of the offenses . . . .” Id.2 However, for a

consecutive sentencing order to be valid under the version of the statute in effect at the

time, our supreme court required sentencing orders or the record to be clear as to whether

a trial court was relying upon discretionary or mandatory consecutive sentencing authority.

Bartruff, 553 N.E.2d at 487-88. There is no such clarity here. Furthermore, even if there




2
  Taylor’s motion to correct erroneous sentence states that he was on parole from Kentucky when he
committed the 1984 offenses.


                                                9
could have been a basis for mandatory consecutive sentencing with respect to a pre-existing

sentence, there simply is no possible justification, under Kendrick and like cases, for the

trial court’s order that the Madison County sentence be served consecutive to any sentence

Taylor “may receive from any other county.” App. p. 1.3

        We, therefore, find the trial court’s sentencing order to be facially erroneous and in

need of correction. If the trial court wishes to retain consecutive sentencing in some form,

it must more clearly state whether Taylor’s sentence in Madison County is required to be

served consecutive to another pre-existing sentence of probation, parole, or imprisonment

that he was serving when he committed the Madison County offenses, in accordance with

the mandatory consecutive sentencing statute as it existed in 1984. The requirement that

the Madison County sentence be served consecutive to any sentence that did not yet exist

and that might be imposed by another court is illegal, has no possible cure, and must be

completely excised.

                                             Conclusion

        Taylor’s motion to correct erroneous sentence is not barred by waiver or res judicata.

The trial court’s consecutive sentencing order is facially erroneous, under the statute in

existence at the time of Taylor’s sentencing, and must be corrected. We reverse and

remand for correction of the sentencing order in accordance with this opinion.




3
  It is clear, in reading the 1986 opinions in Taylor’s direct appeals, that there could not be mandatory
consecutive sentencing with respect to the Madison County and Johnson County offenses; Taylor was not
arrested for the first offenses in Madison County before committing the Johnson County offenses. See
Thompson v. State, 634 N.E.2d 775, 777 (Ind. Ct. App. 1994).


                                                   10
Reversed and remanded.

BRADFORD, J., and BROWN, J., concur.




                                       11
