      MEMORANDUM DECISION                                                    FILED
      Pursuant to Ind. Appellate Rule 65(D), this                       Jan 30 2017, 8:53 am

      Memorandum Decision shall not be regarded as                           CLERK
      precedent or cited before any court except for the                 Indiana Supreme Court
                                                                            Court of Appeals
      purpose of establishing the defense of res judicata,                    and Tax Court

      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Elliott Tyson                                            Curtis T. Hill, Jr.
      Pendleton, Indiana                                       Attorney General of Indiana
                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Elliott Tyson,                                           January 30, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1602-CR-280
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Peggy Ryan Hart,
      State of Indiana,                                        Master Commissioner.
      Appellee-Plaintiff.                                      Cause No. 49G21-9905-FC-81336




      Friedlander, Senior Judge

[1]   Elliott Tyson appeals the denial of his motion to correct erroneous sentence.

      We affirm.


[2]   Tyson was convicted of four felonies related to dealing in controlled substances.

      In addition, he was found to be an habitual offender. On appeal, the Indiana

      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-280 | January 30, 2017     Page 1 of 7
      Supreme Court reversed two of his felony convictions on double jeopardy

      grounds and remanded for resentencing. See Tyson v. State, 766 N.E.2d 715

      (Ind. 2002). On remand, the trial court sentenced Tyson to eighty years.


[3]   Next, Tyson filed a petition for post-conviction relief. The post-conviction

      court summarily denied his petition, and a panel of this Court affirmed the post-

      conviction court’s judgment. See Tyson v. State, 868 N.E.2d 855 (Ind. Ct. App.

      2007), trans. denied.


[4]   Tyson has also filed four motions for permission to file a successive petition for

      post-conviction relief, and this Court denied the motions. See Tyson v. State,

      Cause No. 49A02-0809-SP-840 (Ind. Ct. App. October 10, 2008); Tyson v. State,

      Cause No. 49A02-1001-SP-31 (Ind. Ct. App. February 2, 2010); Tyson v. State,

      Cause No. 49A02-1201-SP-48 (Ind. Ct. App. February 24, 2012); Tyson v. State,

      Cause No. 49A05-1210-SP-504 (Ind. Ct. App. November 2, 2012).


[5]   The current case began when Tyson filed a motion to correct erroneous

      sentence. He submitted the transcript from his original trial in support of his

      motion. The court denied the motion, and this appeal followed.


[6]   Tyson argues the trial court should have granted his motion to correct

      erroneous sentence because his sentence was the result of an inappropriate

      double enhancement. The State responds that Tyson’s motion does not comply

      with the standards that govern motions to correct erroneous sentence, and, as a

      result, dismissal of this appeal or affirmance of the trial court’s ruling is

      appropriate.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-280 | January 30, 2017   Page 2 of 7
[7]    We review a trial court’s ruling on a motion to correct erroneous sentence for

       an abuse of discretion. Woodcox v. State, 30 N.E.3d 748 (Ind. Ct. App. 2015).

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

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

       470 (Ind. Ct. App. 2012).


[8]    The statute that governs motions to correct erroneous sentences provides, in

       relevant part:

               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.
       Ind. Code § 35-38-1-15 (1983).


[9]    It is in the best interests of all parties that sentencing errors be immediately

       discovered and corrected. Robinson v. State, 805 N.E.2d 783 (Ind. 2004). In

       general, such errors are most appropriately presented in a motion to correct

       error or in a direct appeal from the sentencing judgment. Id. In addition, a

       defendant may raise certain sentencing errors in post-conviction proceedings.

       See id. (citing Ind. Post-Conviction Rule 1, § (1)(a)(3)).


[10]   A defendant may file a motion to correct erroneous sentence under Indiana

       Code section 35-38-1-15 as an alternative, narrower remedy. The Indiana

       Supreme Court has clearly stated, “a motion to correct erroneous sentence may

       only be used to correct sentencing errors that are clear from the face of the
       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-280 | January 30, 2017   Page 3 of 7
       judgment imposing the sentence in light of the statutory authority.” Robinson,

       805 N.E.2d at 787. Stated slightly differently, a court considering a motion to

       correct erroneous sentence may consider “only the face of the judgment and the

       applicable statutory authority without reference to other matters in or extrinsic

       to the record.” Id. at 787-88. 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. at 787. Such claims must be raised

       on direct appeal or post-conviction proceedings. Id.


[11]   In Fulkrod v. State, 855 N.E.2d 1064 (Ind. Ct. App. 2006), Fulkrod filed a

       motion to correct erroneous sentence, claiming the trial court erroneously

       enhanced his sentence based on aggravating factors that were not determined

       by a jury. He did not prevail and appealed. A panel of this Court concluded

       Fulkrod could not present his claim by way of a motion to correct erroneous

       sentence because the court would be required to look beyond the face of the

       judgment to the sentencing record.


[12]   Similarly, in Godby v. State, 976 N.E.2d 1235 (Ind. Ct. App. 2012), Godby

       claimed via a motion to correct erroneous sentence that the trial court should

       not have cited the evidence introduced at trial as an aggravating factor. On

       appeal from the denial of the motion, a panel of this Court affirmed, concluding

       the Court could not address Godby’s claim without examining documents

       beyond the sentencing order.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-280 | January 30, 2017   Page 4 of 7
[13]   By contrast, in Wilson v. State, 5 N.E.3d 759 (Ind. 2014), Wilson argued his

       sentence violated the governing statutes because the trial court ordered him to

       serve the sentence for one of his offenses partially concurrently and partially

       consecutively with another sentence. The Indiana Supreme Court addressed

       Wilson’s claim because it was a question of law.


[14]   In the current case, Tyson initially asserts he is raising only “questions of law.”

       Appellant’s Br. p. 15. He claims, in substance, that his aggregate sentence is

       erroneous because the trial court inappropriately enhanced the sentence for one

       of his offenses due to his criminal history and then also considered his criminal

       history in sentencing him for the habitual offender determination. Addressing

       this claim would require consideration of materials other than the sentencing

       order, such as the evidence presented at trial and sentencing, to determine

       whether the aggravating and mitigating sentencing factors are valid. Tyson

       effectively concedes this point by asking the Court to take judicial notice of the

       transcript from the habitual offender and sentencing phases of his trial. He has

       included those documents in his appellate filings and repeatedly cites to them in

       his briefs.


[15]   We agree with the State that Tyson is asking this Court to consider matters

       beyond the face of the sentencing order. As a result, the circumstances of this

       case more closely resemble those in Fulkrod and Godby than the circumstances

       in Wilson, and, pursuant to the holding in Robinson, Tyson’s claim is not

       appropriately raised in a motion to correct erroneous sentence.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-280 | January 30, 2017   Page 5 of 7
[16]   Tyson argues the trial court and this Court may consider evidence beyond the

       face of the sentencing order, but the cases he cites in support of his argument

       are distinguishable. In Neff v. State, 888 N.E.2d 1249 (Ind. 2008), Neff sought to

       challenge the calculation of his credit time but conceded on transfer that the

       Department of Correction’s calculation was correct. As a result, it was not

       necessary for the Indiana Supreme Court to address the claim he raised in his

       motion to correct erroneous sentence. By contrast, Tyson’s claim of sentencing

       error would require the Court to review the record to consider the factors that

       were involved in sentencing.


[17]   In Hardley v. State, 905 N.E.2d 399, 403 (Ind. 2009), another case cited by

       Tyson, the Indiana Supreme Court held that the State of Indiana may “present

       claims of illegal sentence on appeal when the issue is a pure question of law that

       does not require resort to any evidence outside the appellate record.” Further,

       the State is not limited to challenging “facially erroneous sentences” but may

       raise any appropriate claim. Id. at 404. The Court distinguished the

       circumstances of Hardley from the circumstances in Robinson, noting that a

       “restrictive interpretation” of Indiana Code section § 35-38-1-15, as applied to

       the defendant in Robinson, is appropriate because defendants may also present

       sentencing claims by direct appeal or through post-conviction relief. Id. at 402.

       Thus, the holding in Hardley may not reasonably be read as changing the

       holding in Robinson that a defendant filing a motion to correct erroneous

       sentence may present only claims that can be resolved by considering the

       sentencing order and no other portions of the record.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-280 | January 30, 2017   Page 6 of 7
[18]   Finally, Tyson argues the Indiana Supreme Court’s holding in Robinson was

       “abrogated” by the Indiana Supreme Court’s amendment of Indiana Evidence

       Rule 201, which governs judicial notice. Appellant’s Br. p. 51. In 2009, the

       Indiana Supreme Court amended Rule 201 to allow courts to take judicial

       notice of court records. In re Paternity of P.R., 940 N.E.2d 346 (Ind. Ct. App.

       2010). Tyson claims Rule 201 now allows, if not requires, trial and appellate

       courts to consider extrinsic evidence when addressing a motion to correct

       erroneous sentence.


[19]   Rule 201 is a rule of general applicability in all proceedings, civil and criminal,

       in Indiana’s courts. Ind. Evid. Rule 101(b). There is no indication that the

       Indiana Supreme Court intended for its amendment of Rule 201 to overrule its

       specific interpretation of Indiana Code section 35-38-1-15 as set forth in

       Robinson. Further, the holding in Robinson applies to defendants, not to courts.

       A defendant filing a motion to correct erroneous sentence remains barred from

       raising claims that go beyond the face of the sentencing order, regardless of the

       scope of a court’s discretion to take judicial notice of facts and law.


[20]   The trial court did not abuse its discretion in denying Tyson’s motion to correct

       erroneous sentence. We decline Tyson’s request to take judicial notice of the

       transcripts from his original trial. For the foregoing reasons, we affirm the

       judgment of the trial court.


[21]   Judgment affirmed.


       Baker, J., and Riley, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-280 | January 30, 2017   Page 7 of 7
