      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                            FILED
      regarded as precedent or cited before any                                  Apr 22 2020, 10:36 am

      court except for the purpose of establishing                                     CLERK
      the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court
      estoppel, or the law of the case.


      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Marzono Shelly                                            Curtis T. Hill, Jr.
      Carlisle, Indiana                                         Attorney General of Indiana

                                                                Samuel J. Dayton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Marzono Shelly,                                           April 22, 2020
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                19A-CR-1475
              v.                                                Appeal from the LaPorte Circuit
                                                                Court
      State of Indiana,                                         The Honorable Thomas J.
      Appellee-Respondent.                                      Alevizos, Judge
                                                                Trial Court Cause No.
                                                                46C01-1201-MR-31



      Rucker, Senior Judge.


[1]   Marzono Shelly appeals pro se from the denial of his Motion To Correct

      Sentence. We affirm in part and remand.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020                      Page 1 of 10
                                     Facts and Procedural History
[2]   Arising out of the shooting death of a 73-year-old victim in his own home, after

      a trial by jury in August 2013, then 36-year-old Marzono Shelly was convicted
                                 1                                          2
      of Count I Murder a felony, Count II Felony Murder a felony, Count III
                    3
      Robbery a class A felony, and Count IV Serious Violent Felon in Possession of
                        4                                                                      5
      a Firearm a class B felony. In Count V he was adjudged a habitual offender.

      At the March 20, 2014 sentencing hearing, the trial court merged Shelly’s

      conviction for felony murder with his conviction for murder. Shelly was

      sentenced to sixty-five years for the murder conviction, thirty years for the class

      A felony robbery conviction, ten years for the class B felony violent felon in

      possession of a firearm conviction, and thirty years for the habitual offender

      adjudication. With the exception of the class B felony violent felon in

      possession of a firearm sentence—which was to be served concurrently with the

      murder sentence—the trial court ordered all sentences to be served

      consecutively, resulting in a total executed term of 125 years.


[3]   Shelly appealed raising several claims including the trial court placed him in

      double jeopardy by entering judgments of conviction for murder, felony

      murder, and class A felony robbery. This Court agreed, reversed the trial court


      1
          Ind. Code §35-42-1-1(1) (2007).
      2
          Ind. Code §35-42-1-1(2).
      3
          Ind. Code §35-42-5-1 (1984).
      4
          Ind. Code §35-47-4-5 (2006).
      5
          Ind. Code §35-50-2-8 (2005).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 2 of 10
      in part and remanded for resentencing. Specifically, the Court declared “we

      reverse and order the trial court to vacate Shel[l]y’s convictions for felony

      murder and class A felony robbery. On remand, the trial court is instructed to

      enter judgment of conviction on class C felony robbery and revise Shel[l]y’s

      sentence accordingly. We affirm the judgment of the trial court as to all other

      issues raised.” Shelly v. State, 2015 WL 1228314, slip op. *1 (Ind. Ct. App.

      March 17, 2015).


[4]   On June 7, 2016 Shelly filed a pro se petition for post-conviction relief which he

      amended November 14, 2016. In his amended pro se petition, Shelly raised

      numerous claims which this court summarized as follows: (1) whether the trial

      court abused its discretion by allowing the State to amend the habitual offender

      charge; (2) whether the conviction of possession of a firearm by a violent

      offender and the habitual offender enhancement violated double jeopardy; (3)

      whether he was prejudiced by an allegedly improper jury instruction regarding

      motive; (4) whether the trial court erred by not giving an involuntary

      manslaughter instruction to the jury; (5) whether certain jury instructions were

      ambiguous; (6) whether the trial court abused its discretion in denying a motion

      for mistrial; and (7) whether the trial court abused its discretion in denying a

      motion for judgment on the evidence. See Shelly v. State, 2018 WL 3488353

      (Ind. Ct. App. July 20, 2018).


[5]   After a hearing the post-conviction court denied the petition. On appeal this

      Court noted the claims Shelly raised were known and available on direct appeal

      but not raised at the time. We declared, “It is . . . well-settled that, because a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 3 of 10
      post-conviction relief proceeding is not a substitute for direct appeal but rather a

      process for raising issues unknown or not available at trial, an issue known and

      available but not raised on direct appeal may not be raised in post-conviction

      proceedings.” Id. at *3 (citing Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007)).

      This court thus affirmed the judgment of the post-conviction court.


[6]   Thereafter on May 13, 2019 Shelly filed pro se his Motion To Correct Sentence.

      Referring both to the sentence upon remand as well as the original sentence

      Shelly made three claims which we summarize as: (1) the trial court placed

      him in double jeopardy by entering judgments of conviction for murder and

      felony murder; (2) the trial court improperly treated the habitual offender

      adjudication as a separate offense; and (3) the trial court further erred by

      ordering the 30-year sentence be served consecutively to the other sentences

      imposed. The trial court denied the motion. This pro se appeal followed.


                                   Discussion and Decision
                                                         I.
[7]   We first observe that in addition to the claims raised in his Motion To Correct

      Sentence, on appeal Shelly raises four additional claims which we summarize

      as: (1) whether the trial court abused its discretion by allowing the State to

      amend the habitual offender charge; (2) whether the conviction of possession of

      a firearm by a violent offender and the habitual offender enhancement violated

      double jeopardy; (3) whether he was prejudiced by an allegedly improper jury




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 4 of 10
      instruction regarding motive; and (4) whether the trial court erred by not giving

      an involuntary manslaughter instruction to the jury.


[8]   Shelly did not present these claims to the trial court in his Motion To Correct

      Sentence. An issue may not be raised for the first time on appeal. These issues

      are waived. See Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2002), trans.

      denied. Further, and perhaps even more importantly, these additional claims

      were among the precise claims Shelly made in his petition for post-conviction

      relief. The post-conviction court denied the petition and this Court affirmed.

      These claims are now barred by the doctrine of law of the case and may not be

      relitigated. See State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989) (declaring

      “The doctrine of the law of the case stands for the proposition that an appellate

      court’s determination of a legal issue is binding in subsequent appeals given the

      same case and substantially the same facts, and is based upon the sound policy

      that when an issue is once litigated and decided, that should be the end of the

      matter.”) (internal citation and quotation omitted). We proceed to the issues

      properly before us.


                                                        II.
[9]   Shelly complains the trial court erred in denying his Motion To Correct

      Sentence. Our Court reviews a trial court’s ruling on a motion to correct

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

      Ct. App. 2010). We will find an abuse of discretion if “the trial court’s decision

      is against the logic and effect of the facts and circumstances before


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 5 of 10
       it.” Id. While we defer to the trial court’s factual determinations, we review

       legal conclusions de novo. Id.


[10]   A motion to correct erroneous sentence is appropriate only when the sentence is

       “erroneous on its face.” Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004)

       (internal quotation omitted). Such a motion 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, or after trial may not be

       presented by way of a motion to correct sentence. 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.


[11]   With regard to the sentence upon remand, both in his Motion To Correct

       Sentence before the trial court and in his Brief before this Court, in a rambling

       discourse, Shelly makes the same double jeopardy arguments made on direct

       appeal. Eventually however Shelly gets to the heart of his argument. He

       contends in relevant part “[a]t [the]hearing of September 8, 2015, the court

       failed to vacate the Felony Murder, Count II as was remanded to the court to

       vacate.” Appellant’s Br. p. 11.


[12]   In its sentencing order upon remand the trial court declared:


               The Court, having had this matter under advisement and
               considered the previously prepared written Pre-Sentence
               Investigation Report, now finds:
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 6 of 10
        The Court now enters a judgment of conviction against the
        Defendant, Marzono Shelly, to Count III, Robbery, as a Class C
        Felony.


        The Defendant, Marzono Shelly, who is a male person, 38 years
        of age, is guilty of Count III, Robbery, as a Class C Felony.


        The Court finds the following aggravating factors:


        1. The Defendant has an extensive criminal history including a
        specific history for manslaughter.


        2. The Defendant has recently violated the terms of his parole.


        The Court finds no mitigating factors. Therefore, the aggravating
        factors outweigh any mitigating factors.


        IT IS ORDERED, ADJUDGED AND DECREED by the Court
        that the Defendant, Marzono Shelly, shall be committed to the
        custody of the Indiana Department of Correction for a period of
        six (6) years.


        THE COURT FURTHER FINDS that zero (0) days of the
        sentence of imprisonment shall be suspended.


        The new sentence imposed under Count III, Robbery, is
        consecutive to the other counts which have been undisturbed by
        the Court of Appeal’s decision.


        The Defendant is remanded back into the custody of the Sheriff
        upon the execution of the judgment of this Court.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 7 of 10
       Appellant’s Am. App. Vol II, pp. 31-32. No reference was made to that portion

       of the Court of Appeals’ remand order directing the trial court to vacate Shelly’s

       conviction for felony murder. However, that fact is not dispositive.


[13]   In denying Shelly’s Motion To Correct Sentence the trial court declared in

       relevant part:


               Petitioner, MARZONO SHELLY, pro se, files his Motion to
               Correct Sentence. The Court, being duly advised, now orders as
               follows:


               1. Petitioner asserts that the merged convictions for murder and
               felony murder by this Court violated double jeopardy.


               2. Petitioner raised this same issue on direct appeal to the Court
               of Appeals of Indiana. Per their July 20, 2018 decision, this Court
               was ordered to “vacate the felony murder conviction and remanded the
               case to enter a judgement for robbery, as a class C felony.” This Court
               adhered to the decision and revised his sentence accordingly.


       Id. at 27 (emphasis added). We take the trial court’s declaration at face value.

       Although the sentencing order on remand is silent on the question of whether

       the trial court vacated the felony murder conviction, it is possible the trial court

       issued—and was referring to—a separate order addressing this point. In

       essence to resolve this claim would require examining evidence outside the four

       corners of the sentencing order. A motion to correct erroneous sentence is

       appropriate only when the sentence is “erroneous on its face.” Robinson, 805

       N.E.2d at 786. Claims that require consideration of the proceedings before,

       during, or after trial may not be presented by way of a motion to correct

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 8 of 10
       sentence. Id. Here, the error of which Shelly complains is not clear from the

       face of the sentencing order. On this issue we affirm the trial court.


                                                        III.
[14]   As to the original sentencing order Shelly next contends the trial court

       improperly treated the habitual offender adjudication as a separate offense and

       further erred by ordering the 30-year sentence be served consecutively to the

       other sentences imposed.


[15]   The record shows that in its original sentencing order the trial court made

       several representations concerning the habitual offender finding. In relevant

       part the court declared:


               [J]udgment of conviction is entered on Count V. Defendant is
               found to be an habitual offender.


               Defendant’s sentence is enhanced by a period of thirty (30) years
               executed in the Department of Correction as an habitual offender
               under Count V. By law, the habitual offender term of thirty (30) years
               is served consecutively to the other sentences imposed.


       Appellant’s Am. App. Vol II, pp. 40, 41 (emphases added).


[16]   Habitual offender is a status that results in an enhanced sentence. It is not a

       separate crime and does not result in a consecutive sentence. Greer v. State, 680

       N.E.2d 526, 527 (Ind. 1997). In the event of simultaneous multiple felony

       convictions and a finding of habitual offender status, trial courts must impose

       the resulting penalty enhancement upon only one of the convictions and must

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 9 of 10
       specify the conviction to be so enhanced. Id. This specific application or

       “attachment” of the enhancement is necessary to avoid potential double

       jeopardy and Eighth Amendment problems. Jackson v. State, 105 N.E.3d 1081,

       1086 (Ind. 2018).


[17]   In this case the trial court treated the habitual offender status as a separate

       conviction with a separate sentence. This was error clear from the face of the

       judgment. Thus, we remand with instructions to amend the sentencing order to

       show Shelly’s habitual offender finding is attached to only one of the

       convictions and enhance the sentence for that conviction accordingly.


                                                 Conclusion
[18]   The Judgment of the trial court is affirmed in part. This cause is remanded.


       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1475 | April 22, 2020   Page 10 of 10
