      MEMORANDUM DECISION
                                                                          Jul 20 2015, 11:09 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEY FOR APPELLEE
      Rodney S. Perry                                           Gregory F. Zoeller
      Michigan City, Indiana                                    Attorney General of Indiana
                                                                Richard C. Webster
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Rodney S. Perry,                                          July 20, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                45A04-1501-CR-31
              v.                                                Appeal from the Lake Superior
                                                                Court

      State of Indiana,                                         The Honorable Clarence D. Murray,
                                                                Judge
      Appellee-Respondent.
                                                                Trial Court Case No.
                                                                45G02-9701-CF-2




      Mathias, Judge.

[1]   Rodney Perry (“Perry”), pro se, appeals the trial court’s denial of his motion to

      correct erroneous sentence. Perry raises one issue, which we restate as whether

      the trial court abused its discretion in denying Perry’s motion to correct

      erroneous sentence. We affirm.

      Court of Appeals of Indiana | Memorandum Decision No. 45A04-1501-CR-31 | July 20, 2015      Page 1 of 6
                                     Facts and Procedural History

[2]   The underlying facts of this case were set forth in our earlier opinion in Perry’s

      direct appeal as follows:

              On January 6, 1997, Perry broke into the house of his estranged
              wife, Marsheila Perry, after his mother-in-law, Florida Clark,
              refused to let him in. Marsheila struck Perry with a baseball bat,
              but Perry then took the bat away. When Clark attempted to make
              a phone call, Perry struck her in the head with the bat at least
              four times. He then struck Marsheila in the head with the bat at
              least five times. Both Clark and Marsheila died. Perry’s three
              children were present when he killed Clark and Marsheila.
              The State charged Perry with two counts of murder. On June 26,
              1997, Perry agreed to plead guilty to two counts of Class A
              felony voluntary manslaughter. The agreement left sentencing
              entirely to the trial court’s discretion. The agreement also stated
              in part, “The defendant also understands that by pleading guilty
              he will not have the right to directly appeal the conviction(s) to
              the Indiana Court of Appeals or the Indiana Supreme Court but
              may appeal the conviction(s) directly to the trial court by filing a
              Petition for Post–Conviction Relief (PCR).” The agreement did
              not advise Perry that he could directly appeal the sentence
              imposed by the trial court.
              On July 24, 1997, the trial court sentenced Perry to thirty-five
              years for each voluntary manslaughter conviction, to be served
              consecutively for a total sentence of seventy years.

      Perry v. State, 845 N.E.2d 1093, 1094-95 (Ind. Ct. App. 2006) (internal citations

      omitted).

[3]   On direct appeal, Perry argued that the trial court abused its discretion in

      sentencing him and that his sentence was inappropriate in light of the nature of

      the offenses and the character of the offender. On April 20, 2006, our court

      Court of Appeals of Indiana | Memorandum Decision No. 45A04-1501-CR-31 | July 20, 2015   Page 2 of 6
      affirmed Perry’s sentence. See id. On October 20, 2006, Perry filed a petition for

      post-conviction relief, arguing that he received ineffective assistance of trial and

      appellate counsel. The post-conviction court denied Perry’s petition and our

      court affirmed. See Perry v. State, 904 N.E.2d 302 (Ind. Ct. App. 2009).


[4]   Perry filed a pro se motion to correct erroneous sentence on August 19, 2014,

      which the trial court denied. This court affirmed the trial court in a

      memorandum decision. See Perry v. State, No. 45A04-1409-CR-435, 2015 WL

      2448715, slip op. (Ind. Ct. App. May 22, 2015). On December 15, 2015, Perry

      filed a second pro se motion to correct erroneous sentence, which the trial court

      denied the same day.


[5]   Perry now appeals.

                                        Discussion and Decision

[6]   The issue on appeal is whether the trial court erred by denying Perry’s second

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

      motion to correct erroneous sentence for an abuse of discretion. Fry v. State, 939

      N.E.2d 687, 689 (Ind. Ct. App. 2010). An abuse of discretion occurs when the

      trial court’s decision is against the logic and effect of the facts and

      circumstances before it. Id.


[7]   An inmate who believes he has been erroneously sentenced may file a motion

      to correct the sentence pursuant to Indiana Code section 35-48-1-15, which

      provides:



      Court of Appeals of Indiana | Memorandum Decision No. 45A04-1501-CR-31 | July 20, 2015   Page 3 of 6
              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.

[8]   A statutory motion to correct erroneous sentence 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. Robinson v. State, 805 N.E.2d 783,

      787 (Ind. 2004). “Such claims may be resolved by considering only the face of

      the judgment and the applicable statutory authority without reference to other

      matters in or extrinsic to the record.” Fulkrod v. State, 855 N.E.2d 1064, 1066

      (Ind. Ct. App. 2006). If a claim requires consideration of the proceedings

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

      correct sentence. Id. Such claims are best addressed on direct appeal or by way

      of a petition for post-conviction relief. Robinson, 805 N.E.2d at 787.


[9]   Here, Perry claims that the trial court committed fundamental error in denying

      his petition to correct erroneous sentence. He argues that his petition presents

      “undisputable evidence of proof on the face of the record, that Defendant’s

      criminal history which consists entirely of offenses unrelated to the present

      offenses as aggravating circumstance before sentencing was in fact abuse of

      discretion” and that the trial court erred in “fail[ing] to examine petition to see

      whether that appellant raised a new fundamental error issue.” Appellant’s Br. at

      8. He also claims that the trial court erred when it listed as aggravating factors


      Court of Appeals of Indiana | Memorandum Decision No. 45A04-1501-CR-31 | July 20, 2015   Page 4 of 6
       during sentencing that each killing was a separate incident, involving separate

       decisions to kill each victim, and that the killings occurred in the presence of

       children. He further contends that the trial court erred in failing to consider his

       proffered mitigating factors in sentencing.1

[10]   Perry received consecutive thirty-five year sentences for each of his two Class A

       felony voluntary manslaughter convictions, for an aggregate sentence of seventy

       years. These sentences fall within range for Class A felonies prescribed by the

       sentencing statute in effect at the time Perry committed his crimes. See Ind.

       Code § 35-50-2-4 (“A person who commits a Class A felony (for a crime

       committed before July 1, 2014) shall be imprisoned for a fixed term of between

       twenty (20) and fifty (50) years, with the advisory sentence being thirty (30)

       years.”).


[11]   Perry’s arguments fall outside the parameters of Indiana Code section 35-38-1-

       15 because he asks us to look beyond the face of the sentencing order and the

       applicable statutory authority.2 To consider Perry’s claims, we would need to

       review the sentencing hearing transcript, the plea agreement, and the

       presentence investigation report. This would be beyond the scope of appropriate

       review of a denied motion to correct erroneous sentence. See Fulkrod, 855


       1
         Perry also argues that the trial court erred in denying his motion to correct erroneous sentence without first
       giving the State thirty days to respond. We disagree. The trial court acted within its discretion when it denied
       Perry’s petition without giving the State thirty days to respond, after it determined that Perry’s petition was
       meritless on its face.
       2
         Perry repeatedly argues that his sentence is erroneous “on the face of the record,” but the correct standard
       requires that a sentence be erroneous on the face of the judgment, or sentencing order. See Fulkrod, 855
       N.E.2d at 1066.

       Court of Appeals of Indiana | Memorandum Decision No. 45A04-1501-CR-31 | July 20, 2015                Page 5 of 6
       N.E.2d at 1066 (“Such claims may be resolved by considering only the face of

       the judgment and the applicable statutory authority without reference to other

       matters in or extrinsic to the record.”). See also Robinson, 805 N.E.2d at 786

       (motion to correct erroneous sentence is not available for claims concerning

       how the trial court weighed factors in imposing sentence). Furthermore, the

       issues Perry raises have already been resolved in his direct appeal, post-

       conviction proceeding, and post-conviction appeal, and Perry may not re-

       litigate these issues.

[12]   Because the motion to correct erroneous sentence was not the appropriate

       means to challenge his sentence, we conclude that the trial court properly

       denied Perry’s motion to correct erroneous sentence.

[13]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 45A04-1501-CR-31 | July 20, 2015   Page 6 of 6
