MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       Oct 30 2015, 10:18 am
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
Carl Johnson                                             Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Carl Johnson,                                            October 30, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1505-PC-477
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge.
                                                         Trial Court Cause No.
                                                         49G06-9705-CF-72833



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1505-PC-477 | October 30, 2015     Page 1 of 8
[1]   Carl Johnson appeals the trial court’s denial of his motion to correct erroneous

      sentence. Johnson raises one issue which we revise and restate as whether the

      trial court erred in denying his motion. We affirm.1


                                           Facts and Procedural History

[2]   On July 24, 1998, the trial court sentenced Johnson to one year each for two

      counts of resisting law enforcement as class A misdemeanors and four years for

      carrying a handgun without a license as a class C felony. The court ordered

      that the sentences be served concurrently and that Johnson serve at least a

      portion of his sentence on work release.2


[3]   On June 30, 2000, the court modified Johnson’s sentence as to placement only

      due to a violation of work release, ordered that he serve the balance of his

      sentence at the Department of Correction, and noted that the number of days

      confined prior to sentencing was 222 days. According to an Offender

      Evaluation and Progress Report for Community Transition Program dated July

      17, 2001, Johnson began serving his sentence on the underlying cause in July

      2000 after his completion of a sentence in another cause.




      1
       The Appellant’s Appendix is not chronologically paginated. Ind. Appellate Rule 51(C) provides that “[a]ll
      pages of the Appendix shall be numbered at the bottom consecutively . . . .” The Appellant’s Appendix does
      not contain a complete chronological case summary. See Ind. Appellate Rule 50(B) (providing that the
      Appellant’s Appendix shall contain “the Clerk’s Record, including the chronological case summary . . . .”).
      2
          The record does not contain a copy of the court’s July 24, 1998 sentencing order or abstract of judgment.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-PC-477 | October 30, 2015               Page 2 of 8
[4]   In a document dated February 16, 2015 titled Offender Grievance, Johnson

      argued:


                 I was sentenced in July 1998 to 4 years by Marion County Court
                 6. Due to a change in my placement from work release to the
                 Dept. of Corrections, Court 6 modified my sentence (which
                 states on the abstract of Judgment) that it’s for “placement
                 ONLY.” Well, the D.O.C. modified my sentence illegally. The
                 Court 6 resentenced me on 6-30-00 with 222 days credit, which
                 made my earliest release date 11-20-01. D.O.C. changed it to be
                 modified as (“Date of Sentence 7-15-00).” This new D.S. made
                 my out-date (15) days late releasing me on 12/5/01.”


      Appellant’s Appendix at 14.


[5]   At some point, Johnson filed a motion regarding his sentence. 3 On March 13,

      2015, the court denied the motion. Specifically, the court’s order states:

                 The Court has reviewed [Johnson’s] Motion to Correct
                 Erroneous Sentence, which in reality is a Motion for Jail Time
                 Credit. The Court hereby DENIES the motion and notes:


                 1. The Court correctly noted the actual number of days
                    [Johnson] served incarcerated prior to sentencing in its
                    sentencing abstract. The Department of Correction is
                    obligated to give the defendant two-for-one credit time unless
                    the court specifically directs otherwise in the sentencing
                    abstract. Neff v. State[,] 888 N.E[.]2d 1249 (Ind. 2008)[;]
                    Robinson v. State, 805 N.E.2d 783 (Ind. 2004).




      3
          The record does not contain a copy of the motion.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-PC-477 | October 30, 2015   Page 3 of 8
              2. If the Department of Correction has fulfilled its obligation,
                 [Johnson] has already received the credit time he seeks from
                 the court with this motion.


      Appellant’s Brief at 8. On March 31, 2015, Johnson filed a motion to correct

      error. On May 15, 2015, he filed a notice of appeal.


                                                   Discussion

[6]   The issue is whether the trial court erred in denying Johnson’s motion to correct

      erroneous sentence. Johnson argues that the trial court owes him fifteen days

      of jail credit time. He asserts that his illegal sentence is not moot even though

      he has served it because a trial court under another cause number used his

      convictions to enhance a sentence under Indiana’s habitual offender statute. He

      concludes that he should have served only 508 days but served 523 days.


[7]   The State argues Johnson’s claim would require this court to look beyond the

      original abstract of judgment, which Johnson did not include in his appendix,

      and beyond the abstract of judgment of any sentence modification to determine

      whether the Department of Correction was correct to start Johnson’s modified

      sentence on July 15, 2000, instead of June 30, 2000. The State also points out

      that Johnson completed his sentence more than a decade ago, and that, to the

      extent Johnson has been sentenced as an habitual offender in a subsequent case




      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-PC-477 | October 30, 2015   Page 4 of 8
       based upon one of the convictions in this case, the finding of a sentencing error

       does not invalidate the conviction.4


[8]    We review a trial court’s decision on a motion to correct erroneous sentence

       only 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.


[9]    An inmate who believes he has been erroneously sentenced may file a motion

       to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888

       N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 35-38-1-15 provides:


               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.


[10]   In Robinson v. State, the Indiana Supreme Court noted that a motion to correct

       erroneous sentence is available only when the sentence is “erroneous on its




       4
          The State also argues in its brief filed on July 28, 2015, that we should dismiss this appeal because
       Johnson’s notice of appeal was filed sixty-three days after the trial court’s denial of his motion to correct
       erroneous sentence. Subsequent to the filing of the State’s brief, Johnson filed a Verified Motion to Accept
       Appeal as Timely in which he argued that he filed a motion to correct error on March 31, 2015, and for the
       first time attached a portion of the chronological case summary supporting the assertion. Given that Johnson
       filed a timely motion to correct error and timely appealed from the deemed denial of his motion, we do not
       dismiss the appeal.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-PC-477 | October 30, 2015            Page 5 of 8
       face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court

       emphasized that “a motion to correct an erroneous sentence may only arise out

       of information contained on the formal judgment of conviction . . . .” Neff, 888

       N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A motion to correct

       erroneous 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. Robinson, 805 N.E.2d at 787. 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. Id. Sentencing claims that are not

       facially apparent “may be raised only on direct appeal and, where appropriate,

       by post-conviction proceedings.” Id. “Use of the statutory motion to correct

       sentence should thus be narrowly confined to claims apparent from the face of

       the sentencing judgment, and the ‘facially erroneous’ prerequisite should . . . be

       strictly applied . . . .” Id.


[11]   As noted, the record does not contain a copy of the court’s July 24, 1998

       sentencing order or abstract of judgment. Nonetheless, we can say that

       resolution of the issue presented by Johnson necessarily requires consideration

       of factors outside of the face of the judgment. Johnson bases his argument on a

       number of documents other than the judgment. Specifically, he cites to a

       document indicating when he allegedly escaped and another document

       indicating when he was arrested. He also asserts that “[h]e should have been

       given 237 days credit time, or at least there should have been some form of

       correction by the trial court based on Exhibits (Page 3 of Exhibit H), which


       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-PC-477 | October 30, 2015   Page 6 of 8
clearly shown.” Appellant’s Brief at 3. To the extent that Johnson cites to page

three of Exhibit H, we observe that the record does not contain an exhibits

folder and the Appellant’s Appendix contains a document titled Exhibit H

which appears to be a sentencing printout and is listed in the table of contents of

the Appendix as “D.O.C. Sentence DataBase Info,” but the document consists

of only one page. Appellant’s Appendix at i. To address Johnson’s claim

would require a consideration of proceedings before, during, or after his

sentencing. Thus, his argument is not properly presented by way of a motion to

correct erroneous sentence.5 We cannot say that the trial court abused its

discretion by denying his motion.6 See Jackson v. State, 806 N.E.2d 773, 774

(Ind. 2004) (holding that the trial court properly denied the defendant’s motion

to correct erroneous sentence and noting that a motion to correct erroneous

sentence is available only to correct sentencing errors clear from the face of the

judgment); Bauer v. State, 875 N.E.2d 744, 746 (Ind. Ct. App. 2007) (noting that

the defendant’s claims required consideration of matters in the record outside




5
  We also observe that Johnson concedes that his sentence has been completed. We note that the Indiana
Supreme Court has held that “[o]nce ‘sentence has been served, the issue of the validity of the sentence is
rendered moot.’” Lee v. State, 816 N.E.2d 35, 40, n.2 (Ind. 2004) (quoting Irwin v. State, 744 N.E.2d 565, 568
(Ind. Ct. App. 2001) (quotation omitted)).
6
  As noted, sentencing claims that are not facially apparent “may be raised only on direct appeal and, where
appropriate, by post-conviction proceedings.” Robinson, 805 N.E.2d at 787. We observe that the portion of
the chronological case summary attached to Johnson’s Verified Motion to Accept Appeal as Timely indicates
that he filed a Verified Motion for Continuance of Post-Conviction Evidentiary Hearing on April 16, 2015,
and that the trial court granted the motion and scheduled a hearing on a petition for post-conviction relief for
November 12, 2015. We cannot say that any petition for post-conviction relief impacts this case as Johnson
does not include any such petition in this appeal, his notice of appeal indicates that the order being appealed
is the order denying his motion to correct erroneous sentence, and his brief states that the issue is whether the
trial court “abused its authority ruling against [his] ‘Motion to Correct Erroneous Sentence/Motion to
Correct Errors.” Appellant’s Brief at 1.

Court of Appeals of Indiana | Memorandum Decision 49A05-1505-PC-477 | October 30, 2015               Page 7 of 8
       the face of the judgment and accordingly they are not the types of claims that

       are properly presented in a motion to correct erroneous sentence), trans. denied.


                                                   Conclusion

[12]   For the foregoing reasons, we affirm the denial of Johnson’s motion to correct

       erroneous sentence.


[13]   Affirmed.


       Altice, J., concurs.

       Riley, J., concurs in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-PC-477 | October 30, 2015   Page 8 of 8
