MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Apr 18 2016, 8:47 am
this Memorandum Decision shall not be
                                                                           CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kevin L. Govan                                           Gregory F. Zoeller
Westville, Indiana                                       Attorney General

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin L. Govan,                                          April 18, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1510-CR-1618
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-0411-FB-196



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1618| April 18, 2016           Page 1 of 6
                                          Case Summary
[1]   Kevin Govan filed a motion under Indiana Trial Rule 60(A), asking the trial

      court to correct an alleged clerical mistake in a 2005 judgment of conviction

      against him. The trial court denied the motion. Because the requested

      “correction” would be meaningless, we affirm.



                            Facts and Procedural History
[2]   In November 2004, the State charged Govan with several crimes, including two

      counts of Class B felony criminal confinement (Counts 1 and 2). The State also

      alleged that Govan had used a firearm in the commission of those two offenses

      and that he was therefore subject to sentencing enhancements under Indiana

      Code section 35-50-2-11. At the time, that statute allowed a court to add five

      years to a sentence for Class B felony criminal confinement if the court found

      that the defendant “used a firearm in the commission of the offense[.]” Ind.

      Code Ann. § 35-50-2-11 (West 2004).

[3]   In April 2005, while Govan was awaiting trial, the General Assembly amended

      Section 35-50-2-11 to provide that if the defendant was convicted of Class B

      felony criminal confinement in a jury trial, the “used a firearm” finding must be

      made by the jury, not the court. Pub. L. 71-2005, § 13.

[4]   Govan’s jury trial was held a month later. The jury found Govan guilty of both

      counts of Class B felony criminal confinement. The trial court did not

      reconvene the jury for a finding on the State’s “used a firearm” allegations.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1618| April 18, 2016   Page 2 of 6
      Instead, in accordance with the version of Section 35-50-2-11 that was in effect

      at the time of Govan’s offenses, the court itself made the finding and added five

      years to each of Govan’s criminal-confinement sentences. The court issued a

      Judgment of Conviction that provided, in part, “Court finds defendant

      committed offenses in Count 1 and 2 while using a firearm in violation of

      [Indiana Code section] 35-50-2-11.” Appellant’s App. p. 151.

[5]   Govan later filed a motion to correct erroneous sentence under Indiana Code

      section 35-38-1-15. The trial court denied the motion. Govan appealed to this

      Court, arguing, in part, that the trial court “wrongly sentenced him to

      additional fixed terms of imprisonment of five years on each of counts I and II,

      under Indiana Code section 35-50-2-11.” Govan v. State, No. 02A03-1302-CR-

      60, Slip Op. at 4-5 (Ind. Ct. App. July 3, 2013). We affirmed, explaining that

      whether the firearm enhancement was properly applied is “not something that

      is apparent on the face of the judgment of conviction” and therefore is not an

      issue that can be addressed by way of a motion to correct erroneous sentence.

      Id. at 5. In an accompanying footnote, we wrote:


              To the extent that Govan argues that the judgment of conviction
              indicates that the judge, rather than a jury, found that the
              elements of the statute were met, Govan appears to read too
              much into the judgment of conviction. The judgment of
              conviction notes that the “Court finds defendant committed
              offenses . . . in violation of IC 35-50-2-11.” Brief of Appellant at
              11. However, a reference to the “court” here does not imply that
              the judge improperly played a role reserved for the jury.
              Relevantly, we note that the boilerplate wording of the fill-in-the-
              blank judgment of conviction form used here states that the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1618| April 18, 2016   Page 3 of 6
              defendant was found guilty following a jury trial, and then goes
              on to state that the court considered the evidence and found
              defendant guilty. There is no facially apparent error in the
              judgment of conviction here.


      Id. at 5 n.3 (emphasis in original).


[6]   Apparently prompted by that footnote, Govan then filed a motion under

      Indiana Trial Rule 60(A) asking the trial court to “correct” the judgment to

      specifically state that the jury had not made the firearm finding. The trial court

      denied Govan’s motion, and Govan now appeals.



                                 Discussion and Decision
[7]   Govan contends that the trial court should have granted his motion for an

      amended judgment under Rule 60(A), which provides, in part,


              Clerical mistakes. Of its own initiative or on the motion of any
              party and after such notice, if any, as the court orders, clerical
              mistakes in judgments, orders or other parts of the record and
              errors therein arising from oversight or omission may be
              corrected by the trial court at any time before the Notice of
              Completion of Clerk’s Record is filed under Appellate Rule 8.


      We review a trial court’s decision on a Rule 60 motion for an abuse of

      discretion. Elliott v. Dyck O’Neal, Inc., 46 N.E.3d 448, 456 (Ind. Ct. App. 2015),

      trans. denied.


[8]   To resolve this appeal, we need not decide whether the judgment contains a

      “clerical mistake.” Govan’s briefing to the trial court and on appeal makes

      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1618| April 18, 2016   Page 4 of 6
      clear that his reason for filing the Rule 60 motion is that he believes that if the

      judgment more clearly stated that the jury did not make the firearm finding, he

      could file a successful motion to correct erroneous sentence, on the ground that

      the firearm enhancement can only be based on a jury finding. See Appellant’s

      Br. p. 13-14; Appellant’s Reply Br. p. 3-6; Appellant’s App. p. 146. But even if

      the judgment were to be amended as Govan requests, he could not prevail on a

      motion to correct erroneous sentence. Such a motion may properly be used

      only “to correct sentencing errors that are clear from the face of the judgment

      imposing the sentence in light of the 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.” Robinson v. State, 805

      N.E.2d 783, 787 (Ind. 2004). A motion to correct 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.


[9]   Here, Govan’s motion to correct erroneous sentence would necessarily be based

      on one or both of two alternative arguments: (1) that the 2005 amendment to

      Section 35-50-2-11 should have been applied even though the crimes were

      committed in 2004 or (2) that even if the amended statute did not apply, the

      pre-amendment version of the statute, which allowed a judge to find a fact that

      justified a sentence enhancement, was unconstitutional under the United States

      Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and

      Blakely v. Washington, 542 U.S. 296 (2004) (decided several months before


      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1618| April 18, 2016   Page 5 of 6
       Govan committed his offenses). See Appellant’s Reply Br. p. 3-6. While we

       know that the legislature was responding to Blakely when it amended Section

       35-50-2-11 in 2005, see Robertson v. State, 871 N.E.2d 280, 282-83 (Ind. 2007),

       we express no opinion on the merits of these two issues. We simply hold that

       they are not appropriate subjects for a motion to correct erroneous sentence.

       See, e.g., Fulkrod v. State, 855 N.E.2d 1064, 1067 (Ind. Ct. App. 2006) (holding

       that “a Blakely claim is not the type of claim which may be brought through a

       motion to correct erroneous sentence”). Neither alleged “error” is apparent

       from the face of the judgment. See Robinson, 805 N.E.2d at 787. Each

       argument would require a court to engage in substantive legal analysis.

[10]   Because the erroneous-sentence motion Govan envisions would be futile, and

       because Govan’s only reason for requesting a “correction” of the judgment is to

       set himself up for that erroneous-sentence motion, we cannot say that the trial

       court abused its discretion by declining to amend the judgment under Rule

       60(A).

[11]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1618| April 18, 2016   Page 6 of 6
