MEMORANDUM DECISION                                                     FILED
                                                                   Mar 24 2016, 8:56 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                        CLERK
this Memorandum Decision shall not be                               Indiana Supreme Court
                                                                       Court of Appeals
regarded as precedent or cited before any                                and Tax Court

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
Brian Sawyer                                             Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian Sawyer,                                            March 24, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1504-CR-288
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant A. Hawkins,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G05-0510-FA-184250



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016        Page 1 of 4
                                               Case Summary
[1]   Brian Sawyer appeals the denial of his motion to correct erroneous sentence.

      We affirm.


                                                       Issue
[2]   Sawyer raises one issue, which we restate as whether the trial court properly

      denied his motion to correct erroneous sentence.


                                                       Facts
[3]   In August 2006, Sawyer pled guilty to rape and criminal deviate conduct, Class

      A felonies. In September 2006, the trial court sentenced him to fifty years on

      each count, suspended twenty years from each count, and ordered the sentences

      to run consecutively. Saywer’s aggregate sentence is one-hundred years with

      sixty years executed.1 On April 16, 2015, Sawyer filed a motion to correct

      erroneous sentence. The trial court denied that motion the same day. Sawyer

      now appeals.


                                                    Analysis
[4]   Sawyer contends his convictions violate the Indiana Constitution’s prohibition

      against double jeopardy. See Ind. Const. Art. 1, § 14. He asks us to reduce his

      Class A felony conviction for criminal deviate conduct to a Class B felony and

      “resentence him accordingly.” Appellant’s Br. p. 5.



      1
       Sawyer challenged the appropriateness of his sentence on direct appeal. We affirmed. See Sawyer v. State,
      No. 49A04-0610-CR-552 (Ind. Ct. App. July 31, 2007).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016             Page 2 of 4
[5]   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
              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.


      We “defer to the trial court’s factual finding” on a motion to correct erroneous

      sentence and “review its decision only for abuse of discretion.” Fry v. State, 939

      N.E.2d 687, 689 (Ind. Ct. App. 2010) (quotations omitted) (citation omitted).

      An abuse of discretion occurs when the trial court’s decision is against the logic

      and effect of the facts and circumstances before it. Davis v. State, 978 N.E.2d

      470, 472 (Ind. Ct. App. 2012).


[6]   Sentencing errors are best presented to the trial court in a motion to correct

      error under Indiana Trial Rule 59 or on direct appeal. Robinson v. State, 805

      N.E.2d 783, 786 (Ind. 2004). Thereafter, a defendant may seek relief for certain

      claims under the Indiana Post-Conviction Rules. Id. A motion to correct

      erroneous sentence is an alternate remedy; however, that remedy is reserved for

      correcting only those sentencing errors that are clear from the face of the

      judgment imposing the sentence in light of the statutory authority. Id. “As to

      sentencing claims not facially apparent, the motion to correct sentence is an

      improper remedy. Such claims may be raised only on direct appeal and, where

      appropriate, by post-conviction proceedings.” Id. at 787.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016   Page 3 of 4
[7]    Sawyer raises a substantive double jeopardy argument and asks us to conclude

       his convictions are the “same offense” pursuant to the “statutory elements”

       analysis detailed in Richardson v. State and to reduce his Class A felony

       conviction for criminal deviate conduct to a Class B felony. Richardson v. State,

       717 N.E.2d 32, 49 (Ind. 1999). He also asks us to resentence him accordingly.


[8]    The abstract of judgment issued on September 1, 2006, states the crimes for

       which Sawyer was convicted and the sentences imposed thereon. It provides

       neither information regarding the statutory elements of the crimes Sawyer

       challenges nor the actual evidence used to convict him. Such information is

       crucial to a Richardson analysis. Sawyer’s argument on appeal is precisely the

       sort of substantive claim that may only be raised on direct appeal or, if

       appropriate, in a petition for post-conviction relief. It cannot be evaluated by

       simply reviewing the trial court’s sentencing order. Sawyer has not established

       that the trial court abused its discretion by denying his motion.


                                                 Conclusion
[9]    The trial court did not abuse its discretion in denying Sawyer’s motion to

       correct erroneous sentence. We affirm.


[10]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-288 | March 24, 2016   Page 4 of 4
