Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                    Sep 12 2013, 5:34 am
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:

STEPHEN R. HARVEY, JR.                             GREGORY F. ZOELLER
Pendleton Correctional Facility                    Attorney General of Indiana
Pendleton, Indiana
                                                   JUSTIN F. ROEBEL
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

STEPHEN R. HARVEY, JR.,                            )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 02A03-1302-CR-44
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                             Cause No. 02D04-0312-FB-243



                                       September 12, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
       Stephen R. Harvey, Jr., pled guilty to class B felony robbery, class B felony criminal

confinement, and to being a habitual offender. The trial court sentenced Harvey to twenty

years for robbery enhanced by twenty years on the habitual offender finding, and ten years

for criminal confinement. The court ordered the sentences to be served consecutively for an

aggregate sentence of fifty years.      Thereafter, Harvey filed several pro se motions

challenging the validity of his sentence, each of which was denied by the trial court. He now

appeals only the trial court’s denial of his motion for concurrent sentencing. The sole issue

presented is whether the trial court abused its discretion in denying that motion.

       Harvey’s motion for concurrent sentencing was essentially a motion to correct

erroneous sentence. We review a trial court’s ruling on a motion to correct erroneous

sentence only for an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App.

2012). “An abuse of discretion occurs where the trial court’s decision is against the logic and

effect of the facts and circumstances before it.” Id.

       Indiana Code Section 35-38-1-15 states,

       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.

“The purpose of the statute 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) (citation and internal quotation marks omitted). A motion to

correct erroneous sentence may properly be used only “to correct sentencing errors that are

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clear from the face of the judgment imposing the sentence in light of statutory authority.

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. A motion to correct erroneous

sentence is an improper remedy for any sentencing claims that are not facially apparent; such

claims may be raised only on direct appeal, and by post-conviction proceedings where

appropriate. Id.

       Harvey argues that the trial court’s imposition of consecutive sentences was

inappropriate because his convictions arose out of a single episode of criminal conduct

pursuant to Indiana Code Section 35-50-1-2. That statute provides in relevant part that the

trial court may order terms of imprisonment to be served consecutively; however, except for

crimes of violence, the total of the consecutive terms of imprisonment to which the defendant

is sentenced for felony convictions “arising out of an episode of criminal conduct shall not

exceed the advisory sentence for a felony which is one (1) class higher than the most serious

of the felonies for which the person has been convicted.” Ind. Code § 35-50-1-2(c). First,

we note that one of Harvey’s convictions was for class B felony robbery, which is

specifically delineated as a “crime of violence” pursuant to Indiana Code § 35-50-1-2(a).

Our supreme court has held that the statutory limitation on consecutive sentencing does not

apply to consecutive sentencing “among crimes of violence” or “between a crime of violence

and those that are not crimes of violence.” Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000).

Moreover, regarding whether his convictions arose out of a single episode of criminal

conduct, Harvey seeks review of the factual basis underlying his guilty plea to his offenses,


                                              3
which necessarily involves matters not apparent from the face of the trial court’s sentencing

order. Simply put, the sentencing judgment entered here is not erroneous on its face and,

consequently, Harvey has sought an improper remedy for his claim. Accordingly, the trial

court did not abuse its discretion when it denied his motion.

       Affirmed.

BARNES, J., and PYLE, J., concur.




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