MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         Nov 14 2017, 10:51 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 L. Fippen                                       Curtis T. Hill, Jr.
Michigan City, Indiana                                  Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Richard L. Fippen,                                      November 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        35A02-1702-CR-451
        v.                                              Appeal from the Huntington
                                                        Circuit Court
State of Indiana,                                       The Honorable Thomas M. Hakes,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        35C01-0802-FC-13



Vaidik, Chief Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 35A02-1702-CR-451 | November 14, 2017          Page 1 of 5
[1]   Richard L. Fippen appeals the denial of his motion to correct erroneous

      sentence. We affirm.



                            Facts and Procedural History
[2]   In February 2008, the State, under Cause No. 35C01-0802-FC-13 (“FC-13”),

      charged Fippen with Count I: Class C felony burglary, Count II: Class C felony

      operating a motor vehicle after lifetime suspension, and being a habitual

      offender. Thereafter, Fippen and the State entered into a plea agreement

      whereby Fippen would plead guilty to Count I and admit being a habitual

      offender and the State would dismiss Count II. According to the agreement,

      sentencing for Count I was “open . . . to the court” and there was “a cap of four

      (4) years on any initially executed sentence that might be imposed on the

      Habitual Offender Enhancement.” Appellant’s App. Vol. II p. 24. In addition,

      the parties would argue to the court whether Fippen’s sentence in this case

      would run concurrent or consecutive to the sentence that he would receive in

      Cause No. 35C01-0802-FC-12 (“FC-12”) (Class C felony receiving stolen auto

      parts).


[3]   In June 2008, the trial court sentenced Fippen to seven years for Count I, with

      two years suspended to probation. The court then enhanced that sentence by

      eight years for being a habitual offender, with four of those years suspended to

      probation. Finally, the court ordered Fippen’s sentence in this case to be served

      consecutive to his two-year sentence in FC-12.



      Court of Appeals of Indiana | Memorandum Decision 35A02-1702-CR-451 | November 14, 2017   Page 2 of 5
[4]   In February 2017, Fippen, pro se, filed a motion pursuant to Indiana Code

      section 35-38-1-15 claiming that his sentence in FC-13 was erroneous and

      asking the court to correct it. Fippen, pro se, now appeals the denial of that

      motion.



                                Discussion and Decision
[5]   Fippen contends that the trial court erred in denying his motion to correct

      erroneous sentence. An inmate who believes that he has been erroneously

      sentenced may file a motion to correct his sentence pursuant to Indiana Code

      section 35-38-1-15:


              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.


      See Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008). The purpose of Section 35-

      38-1-15 “is to provide prompt, direct access to an uncomplicated legal process

      for correcting the occasional erroneous or illegal sentence.” Robinson v.

      State, 805 N.E.2d 783, 785 (Ind. 2004). Accordingly, 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.

      Id. at 787. Claims that require consideration of the proceedings before, during,


      Court of Appeals of Indiana | Memorandum Decision 35A02-1702-CR-451 | November 14, 2017   Page 3 of 5
      or after trial may not be presented by way of a motion to correct sentence. Id.

      Instead, sentencing errors that are not facially apparent must be addressed

      promptly on direct appeal and thereafter on post-conviction review. Id.


[6]   Fippen does not argue that his burglary sentence is erroneous. Rather, he

      argues that his habitual-offender enhancement—eight years with four

      suspended to probation—is erroneous for two main reasons. First, he questions

      whether the prior convictions relied upon by the State validly establish that he is

      a habitual offender. This, however, is not a challenge to Fippen’s habitual-

      offender sentence but rather an argument that he is not a habitual offender at

      all. Accordingly, it is not a proper subject for a motion to correct erroneous

      sentence.


[7]   Second, Fippen argues that his habitual-offender enhancement is erroneous

      because it includes suspended time. Fippen cites Howard v. State, 873 N.E.2d

      685, 690 (Ind. Ct. App. 2007), where we held that “where a criminal defendant

      receives an enhanced sentence under the habitual offender statute, such

      sentence may not be suspended.” For that proposition, we relied on Reffett v.

      State, 844 N.E.2d 1072, 1074 (Ind. Ct. App. 2006), which in turn relied on State

      v. Williams, 430 N.E.2d 756 (Ind. 1982). Williams held that a habitual-offender

      enhancement could not be suspended according to the 1979 version of Indiana

      Code section 35-50-2-2, which provided: “The court may suspend any part of a

      sentence for a felony unless: (1) The person has a prior unrelated felony

      conviction.” Id. at 758. But as recognized by this Court in Bauer v. State, 875

      N.E.2d 744 (Ind. Ct. App. 2007), trans. denied, Section 35-50-2-2 underwent

      Court of Appeals of Indiana | Memorandum Decision 35A02-1702-CR-451 | November 14, 2017   Page 4 of 5
      numerous revisions after Williams was decided in 1982, and in 2007 it no longer

      contained the language used by the Williams Court to reach its holding.1

      Accordingly, the Bauer Court concluded that habitual-offender enhancements

      could be suspended.2 Id. at 748. In light of this clarification, Fippen has failed

      to establish that the trial court erred, under the statutes in effect in 2008, by

      including suspended time in his habitual-offender enhancement. We therefore

      affirm the trial court’s denial of his motion to correct erroneous sentence.


[8]   Affirmed.


      Mathias, J., and Crone, J., concur.




      1
       Section 35-50-2-2 was repealed effective July 1, 2014. Much of that statute was then recodified under
      Indiana Code section 35-50-2-2.2.
      2
       Several years after Bauer was decided and Fippen committed the offense in this case, the legislature
      amended the habitual-offender statute, Indiana Code section 35-50-2-8, to provide that habitual-offender
      enhancements are “nonsuspendible.” See P.L. 158-2013, § 661; see also Ind. Code Ann. § 35-50-2-8(i) (West
      Supp. 2016).

      Court of Appeals of Indiana | Memorandum Decision 35A02-1702-CR-451 | November 14, 2017          Page 5 of 5
