Pursuant to Ind. Appellate Rule 65(D),                                           Sep 24 2013, 5:39 am
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.


APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:

SHAWN L. RIGSBY                                    GREGORY F. ZOELLER
Pendleton, Indiana                                 Attorney General of Indiana

                                                   IAN McLEAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SHAWN RIGSBY,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 02A03-1304-CR-120
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable John F. Surbeck Jr., Judge
                              Cause No. 02D04-9804-CF-200



                                       September 24, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       In January of 1998, Appellant-Defendant Shawn Rigsby was convicted of a felony

offense and determined to be a habitual offender. In April of 1999, Rigsby was convicted of

Class B felony burglary, and again determined to be a habitual offender. His sentence

relating to the 1999 conviction, including the habitual offender sentence enhancement, was

ordered to be run consecutively to his sentence for the 1998 conviction and habitual offender

sentence enhancement. Rigsby subsequently filed a motion to correct erroneous sentence,

arguing that it was error to order that his habitual offender enhancements run consecutively.

       On January 29, 2013, the trial court issued an order amending Rigsby’s 1999 habitual

offender enhancement so as to produce the same effect as if it had been ordered to run

concurrently to the 1998 habitual offender enhancement. Concluding that, despite the trial

court’s modification, the sentencing order still orders the 1999 habitual offender

enhancement to run consecutively to the 1998 habitual offender enhancement, we reverse and

remand to the trial court with instructions to sentence Rigsby in accordance with this

memorandum decision.

                       FACTS AND PROCEDURAL HISTORY

       On January 8, 1998, under cause number 02D04-9801-DF-29 (“Cause No. DF-29”),

Rigsby was charged with a felony and alleged to be a habitual offender. Rigsby was

subsequently convicted of the felony charge and determined to be a habitual offender. The

trial court sentenced Rigsby to a term of two years for his felony conviction and enhanced his

sentence by a term of three years as a result of his status as a habitual offender.

                                              2
        On April 7, 1998, under cause number 02D04-9804-CF-200 (“Cause No. CF-200”),

the State charged Rigsby with Class B felony burglary. On July 17, 1998, the State amended

the charging information to include an allegation that Rigsby was a habitual offender. On

April 16, 1999, Rigsby was found guilty of Class B felony burglary.1 Rigsby was again

determined to be a habitual offender.

        On April 30, 1999, the trial court sentenced Rigsby to a term of fifteen years for his

Class B felony burglary conviction. The trial court also enhanced Rigsby’s sentence by a

term of thirty years as a result of his status as a habitual offender. The trial court ordered that

Rigsby’s sentence in Cause No. CF-200 run consecutively to the sentences imposed in Cause

No. DF-29 and an additional unrelated criminal case.

        On January 7, 2013, Rigsby filed a motion to correct erroneous sentence. In this

motion, Rigsby alleged that the trial court erroneously ordered his habitual offender

enhancement in Cause No. CF-200 to run consecutively to his habitual offender enhancement

in Cause No. DF-29. The State responded, noting that pursuant to the Indiana Supreme

Court’s opinion in Breaston v. State, 907 N.E.2d 992 (Ind. 2009), it was error to order that

Rigsby’s two habitual offender enhancements be served consecutively.

        On January 29, 2013, the trial court acknowledged that it was error to order that

Rigsby’s two habitual offender enhancements run consecutively, and determined that Rigsby

was “therefore entitled to [a] modification of his sentence … so as to produce the same effect


        1
          Rigsby’s conviction was affirmed on appeal in Rigsby v. State, 02A04-9909-CR-419 (Ind. Ct. App.
April 25, 2000).

                                                   3
as if the two enhancements … had been ordered to run concurrently.” Appellant’s App. p.

13. The trial court reduced the second enhancement by three years, the length of the first

enhancement. This appeal follows.

                             DISCUSSION AND DECISION

       On appeal, Rigsby contends that the trial court abused its discretion in modifying his

sentence because the January 29, 2013 order did not correct the erroneous prior order that

Rigsby’s habitual offender enhancement in Cause No. CF-200 be run consecutively to his

habitual offender enhancement in Cause No. DF-29. Upon appeal, we review a trial court’s

decision to modify 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.

“However, the trial court’s legal conclusions are reviewed under a de novo standard of

review.” Id.

       “Indiana Code § 35-50-2-8, the habitual offender statute, provides that a person is a

habitual offender if the jury or the court finds that the person ‘has accumulated two (2) prior

unrelated felony convictions.’” Breaston v. State, 907 N.E.2d 992, 993 (Ind. 2009).

However, “[u]nder Indiana law, a trial court cannot order consecutive habitual offender

sentences.” Id. at 994. This holds true whether the enhanced sentences are imposed in a

single proceeding or in separate proceedings. Id. at 995.

       Here, in ruling on Rigsby’s motion to correct erroneous sentence, the trial court

acknowledged that it was error to order Rigsby’s habitual offender enhancement in Cause

                                              4
No. CF-200 to run consecutively to his habitual offender enhancement in Cause No. DF-29.

As such, the trial court determined that Rigsby was “entitled to [a] modification of his

sentence … so as to produce the same effect as if the two enhancements … had been ordered

to run concurrently.”    Appellant’s App. p. 13.      The trial court reduced the second

enhancement by three years, the length of the first enhancement.

       While we agree that, in effect, the trial court’s order put Rigsby in the same position

he would have been in had the enhancements been ordered to run concurrently, the trial

court’s order did not correct the complained-of error in the original sentencing order, which

ordered Rigsby’s second habitual offender enhancement to run consecutively to the first. As

such, we reverse and remand to the trial court with instructions to re-impose the original

thirty-year term of the habitual offender enhancement from Cause No. CF-200, to order that

that enhancement be served concurrently to the habitual offender enhancement from Cause

No. DF-29, and to enter a sentencing order which sentences Rigsby in accordance with this

direction. No hearing is required.

       The judgment of the trial court is reversed and the matter remanded with instructions.

BAILEY, J., and MAY, J., concur.




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