      MEMORANDUM DECISION
                                                                                           FILED
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                                       Jan 05 2018, 8:05 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                                   CLERK
                                                                                       Indiana Supreme Court
      purpose of establishing the defense of res judicata,                                Court of Appeals
                                                                                            and Tax Court
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      John Chupp                                                Curtis T. Hill, Jr.
      Pendleton, Indiana                                        Attorney General of Indiana

                                                                James B. Martin
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      John Chupp,                                              January 5, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1707-CR-1463
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Sheila A. Carlisle,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               CR82-81A




      Barteau, Senior Judge


                                       Statement of the Case
[1]   John Chupp, pro se, appeals the trial court’s denial of his motion to correct

      erroneous sentence. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018           Page 1 of 7
                                                     Issue
[2]   The sole issue Chupp presents (restated) is whether the trial court erred in

      denying his motion to correct erroneous sentence.


                               Facts and Procedural History
[3]   The underlying facts of this case, taken from our Supreme Court’s decision in

      Chupp’s direct appeal, are as follows:


              [T]he evidence showed that L.M., a 72-year-old widow, was
              awakened around 11:30 p.m. on July 10, 1982 by three men who
              crashed through her bedroom door. They demanded to know
              where her money was kept, and she told them it was downstairs.
              One of the men found her purse but it contained only thirty-one
              dollars. To force her to reveal the location of the rest of her
              money, one of the men burned her hand with [a] cigarette lighter.
              L.M. tried to explain that she had just returned from vacation
              and that [thirty-one] dollars was all she had. One of the men
              directed the other two to ransack the house. The remaining man
              raped L.M. and then one of the men sodomized her.
              The men bound and gagged L.M. and finished searching the
              house. The victim was not found until noon the following day
              when her son-in-law discovered her. An ambulance transported
              her to a hospital where a medical examination revealed that L.M.
              had suffered bruises, lacerations, blisters, and swelling. She lost
              her purse with thirty-one dollars, her lock box containing
              personal papers and silver coins, and her maroon car.


      Chupp v. State, 509 N.E.2d 835, 836 (Ind. 1987). Chupp was identified as one of

      the perpetrators. Id. at 836-37.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018   Page 2 of 7
[4]   On July 10, 1982, the State charged Chupp with Class A felony burglary, two

      counts of Class A felony rape, two counts of Class A felony criminal deviate

      conduct, Class A felony robbery, and Class B felony criminal confinement. See

      Chupp v. State, No. 49A05-1206-CR-328, slip op. at 1 (Ind. Ct. App. December

      20, 2012), trans. denied. Following a jury trial, on September 24, 1982, Chupp

      was found guilty of Class A felony burglary, Class A felony robbery, and Class

      B felony criminal confinement. Id.


[5]   Additional procedural history follows, as set forth in this Court’s opinion that

      affirmed the denial of Chupp’s first motion to correct erroneous sentence:


              The trial court sentenced Chupp to concurrent fifty-year
              sentences for each Class A felony and to twenty years for the
              Class B felony, to run consecutive to the Class A felonies, for an
              aggregate sentence of seventy years. After pursuing a direct
              appeal, Chupp’s convictions and sentences were affirmed by our
              supreme court. See [Chupp v. State, 509 N.E.2d 835, 840 (Ind.
              1987)].
              On two separate occasions, Chupp filed a petition for post-
              conviction relief, each of which was withdrawn without
              prejudice. On April 24, 2007, Chupp filed a third petition for
              post-conviction relief, asserting newly discovered evidence and
              claiming that his sentence was erroneous because the robbery and
              burglary convictions were enhanced based on the same injuries.
              The post-conviction court denied his petition. On appeal, we
              denied most of Chupp’s claims but concluded that the elevation
              of both the burglary and robbery count to Class A felonies was
              based on the same injuries and thus violated the principles of
              double jeopardy. See Chupp v. State, 933 N.E.2d 586, *5 (Ind. Ct.
              App. 2010) (unpublished opinion). We vacated Chupp’s
              conviction for robbery as a Class A felony and directed the post-
              conviction court to enter judgment on the robbery conviction as a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018   Page 3 of 7
              Class C felony and to resentence him accordingly. See id. at *10.
              On January 20, 2011, the trial court modified Chupp’s Class A
              felony robbery conviction to a Class C felony, vacated the fifty
              year sentence and imposed an eight year sentence to run
              concurrent to the fifty year sentence of the Class A burglary
              conviction, and consecutive to the twenty year sentence for the
              Class B felony criminal confinement, for an aggregate sentence of
              seventy years.
              On June 13, 2012, Chupp filed a motion to correct erroneous
              sentence, alleging that his conviction for both robbery, a Class C
              felony, and criminal confinement, a Class B felony, violated the
              double jeopardy doctrine. The trial court denied Chupp’s motion
              on the same day.


      Chupp, No. 49A05-1206-CR-328, slip op. at 1-2. On December 20, 2012, this

      Court affirmed the trial court’s denial of Chupp’s motion to correct erroneous

      sentence. Id. at 3.


[6]   On August 13, 2014, Chupp filed another motion to correct erroneous sentence,

      and a memorandum in support, in which he attempted to challenge the trial

      court’s imposition of consecutive terms of imprisonment. See Chupp v. State,

      No. 49A02-1408-CR-579, slip op. at 1. (Ind. Ct. App. March 9, 2015). The

      trial court denied Chupp’s motion the same day. Id. This Court affirmed the

      trial court’s denial of the motion on March 9, 2015. Id.


[7]   On June 22, 2017, Chupp filed another motion to correct erroneous sentence,

      this time arguing that the sentencing judgment is erroneous on its face because

      it does not specify the amount of “good time” credit awarded with regard to




      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018   Page 4 of 7
       pretrial incarceration. See Appellant’s Br. p. 8. The trial court denied the

       motion on June 24, 2017. Chupp appeals.


                                      Discussion and Decision
[8]    Chupp challenges his sentence by way of a motion to correct erroneous

       sentence. We review a trial court’s decision on a motion to correct

       erroneous sentence for an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689

       (Ind. Ct. App. 2010). 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. “[A] motion to correct sentence is available only to correct sentencing

       errors clear from the face of the judgment[.]” Robinson v. State, 805 N.E.2d 783,

       794 (Ind. 2004).


[9]    Chupp claims, essentially, that the trial court failed to comply with Indiana

       Code section 35-38-3-2 (1983), which required the trial court’s sentencing

       judgment to include “the amount of credit, including credit time earned, for
                                                                      1
       time spent in confinement before sentencing.” According to Chupp, the

       commitment order failed to separately include designation of both time served

       and the amount of credit time he earned.


[10]   In Robinson, our Supreme Court held:




       1
        This language previously was codified under Indiana Code section 35-4.1-5-1 (Burns 1982 Supp.) (repealed
       by P.L. 311-1983, Sec. 49), which related to certification of a judgment of conviction and the sentence as well
       as the contents of the judgment.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018              Page 5 of 7
                Sentencing judgments that report only days spent in pre-sentence
                confinement and fail to expressly designate credit time earned
                shall be understood by courts and by the Department of
                Correction automatically to award the number of credit time
                days equal to the number of pre-sentence confinement days. . . .
                Because the omission of designation of the statutory credit time
                entitlement is thus corrected by this presumption, such omission
                may not be raised as an erroneous sentence.


       Robinson, 805 N.E.2d at 792 (footnote omitted).


[11]   Here, the trial court’s sentencing judgment, the October 22, 1982 custody of

       commitment order, indicated in relevant part that Chupp was to be given

       “credit towards service of his sentence for 100 days spent in confinement . . .

       and . . . said credit of days [was to] be considered in assessing credit for [good-
                                                                                                            2
       time] conduct, as provided by law.” Appellant’s Supp. App. Vol. 2, p. 2.

       Applying the presumption set forth in Robinson, Chupp’s commitment order

       was understood to award him one hundred days credit for time spent in pretrial

       confinement plus one hundred days of credit time. His commitment order was,

       thus, corrected. The trial court properly denied Chupp’s motion to correct

       erroneous sentence.




       2
         In their respective briefs, both parties cite to an appendix that purports to be at least thirty-one pages in
       length. However, the only appendix that has been filed in this case is Chupp’s supplemental appendix that is
       four pages in length.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018              Page 6 of 7
                                                Conclusion
[12]   For the reasons stated, we find that the trial court properly denied Chupp’s

       motion to correct erroneous sentence.


[13]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1463 | January 5, 2018   Page 7 of 7
