FOR PUBLICATION                                        Jun 03 2013, 8:24 am




APPELLANT PRO SE:                           ATTORNEYS FOR APPELLEE:

BRYANT E. WILSON                            GREGORY F. ZOELLER
New Castle, Indiana                         Attorney General of Indiana

                                            KATHERINE MODESITT COOPER
                                            Deputy Attorney General
                                            Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

BRYANT E. WILSON,                           )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 27A02-1212-CR-1012
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                    APPEAL FROM THE GRANT CIRCUIT COURT
                        The Honorable Mark E. Spitzer, Judge
                          Cause No. 27C01-1006-FC-160



                                   June 3, 2013


                            OPINION - FOR PUBLICATION


CRONE, Judge
                                             Case Summary

       Bryant E. Wilson appeals the denial of his motion to correct erroneous sentence.

Because his sentencing judgment is not erroneous on its face, we affirm.

                                    Facts and Procedural History

       The relevant facts are undisputed. In January 1995, the State charged Wilson with

class A felony rape, class A felony criminal deviate conduct, and class B felony robbery. In

March 1996, a jury found him guilty as charged. In April 1996, the trial court sentenced

Wilson to concurrent terms of forty-five years on each of the class A felony counts and to

twenty years on the class B felony count, with fifteen years to be served concurrent with and

five years to be served consecutive to the sentences on the class A felony counts, for an

aggregate sentence of fifty years. Wilson filed a motion to correct error, which was denied.

Wilson then pursued a direct appeal; this Court affirmed his convictions and our supreme

court denied his petition for transfer. Wilson subsequently filed a petition for post-conviction

relief and a motion for modification of sentence, both of which were denied. Wilson

appealed the denial of his post-conviction petition, which was affirmed in 1999. In

September 2012, Wilson filed a motion for modification of sentence, which was denied.1

       On November 2, 2012, Wilson filed a pro se motion to correct erroneous sentence, in

which he argued that “the trial court lacked statutory authority in holding a part of his




       1
           None of the foregoing motions, petitions, or appellate decisions were included in the record before
us.


                                                      2
sentence in abeyance.” Appellant’s App. at 10. The trial court denied the motion. This

appeal ensued.

                                       Discussion and Decision

        Wilson filed his motion to correct erroneous sentence pursuant to Indiana Code

Section 35-38-1-15, which 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) (quoting Gaddie v. State, 566 N.E.2d 535, 537 (Ind. 1991)). In

Robinson, our supreme court held that

        a motion to correct 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. 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. at 787.2 “When claims of sentencing errors require consideration of matters outside the

face of the sentencing judgment, they are best addressed promptly on direct appeal and

thereafter via post-conviction relief proceedings where applicable.” Id.



        2
          The Robinson court also said, “Because such motions to correct sentence based on clear facial error
are not in the nature of post-conviction petitions, we conclude that they may also be filed after a post-
conviction proceeding without seeking the prior authorization necessary for successive petitions for post-
conviction relief under Indiana Post–Conviction Rule 1(12).” 805 N.E.2d at 788.

                                                     3
        On appeal, Wilson renews his argument that “the trial court lacked statutory authority

in holding a part of his executed sentence in abeyance.” Appellant’s Br. at 7. We take this to

mean that the trial court allegedly lacked statutory authority to impose partially consecutive

sentences. Wilson cites no statute that expressly prohibits partially consecutive sentences,

and in fact there is currently a difference of opinion on this Court regarding whether such

sentences are permissible.3 Compare Hull v. State, 799 N.E.2d 1178, 1182 and n.1 (Ind. Ct.

App. 2003) (disapproving of partially consecutive sentences for two counts of murder), with

Merida v. State, 977 N.E.2d 406, 409-10 (Ind. Ct. App. 2012) (disagreeing with Hull’s

rationale and noting that Ind. Code § 35-50-1-2 “does not specifically prohibit partially

consecutive sentences such as the one imposed in Hull.”) (Crone, J., dissenting), trans.

granted (2013). We note that Hull was decided more than seven years after Wilson was

sentenced in 1996, and thus there was no legal authority in 1996 that expressly disapproved

of partially consecutive sentences.4 Simply put, Wilson’s sentencing judgment is not




        3
           The dissent says that “[t]he statute relevant to consecutive and concurrent sentences provides that the
court shall determine whether terms of imprisonment shall be served concurrently or consecutively, but does
not provide a path for implementing partially consecutive sentences.” Indiana Code Section 35-50-1-2 does
not specifically require that consecutive sentences be served seriatim, or one after another, and thus it could be
said to authorize partially consecutive sentences. The trial court in Hull apparently believed this to be the case,
and we do not find this belief unreasonable. We hope that our supreme court will put the matter to rest in due
course.
        4
            Wilson states, “For clarity and purposes of this appeal, appellant does not contest the trial court’s
authority to run a sentence concurrent or consecutive per se, but whether, the trial court exceeded its authority
to sentence Appellant who committed a Class B felony beyond six (6) to twenty (20) years pursuant to I.C. 35-
50-2-5.” Appellant’s Br. at 6 n.1. Contrary to Wilson’s assertion, the trial court did not sentence him to more
than twenty years for the class B felony; it merely imposed partially consecutive sentences. Wilson also asserts
“that the trial court lacked statutory authority to suspend a sentence that has been executed.” Appellant’s Br. at
9. The State correctly observes that “no part of [Wilson’s] sentence was suspended by the trial court; he
received a fully-executed fifty-year sentence.” Appellee’s Br. at 7 n.3.

                                                        4
erroneous on its face, and therefore the trial court did not err in denying his motion to correct

erroneous sentence. Consequently, we affirm.

       Affirmed.

FRIEDLANDER, J., concurs.

ROBB, C.J., dissents with opinion.




                                               5
                             IN THE
                   COURT OF APPEALS OF INDIANA

BRYANT E. WILSON,                          )
                                           )
       Appellant-Defendant,                )
                                           )
         vs.                               )       No. 27A02-1212-CR-1012
                                           )
STATE OF INDIANA,                          )
                                           )
       Appellee-Plaintiff.                 )



ROBB, Chief Judge, dissenting

       Because I believe that courts are limited to imposing sentences that are authorized by

statute, rather than only being limited to sentences that are not prohibited by statute, I

respectfully dissent.

       I recognize that if this subject were more settled, we would not have the split within

our court to which the majority refers regarding the availability of partially consecutive

sentences. Nevertheless, I believe that sentencing is a creature of the legislature and that we

are limited to sentences that have been expressly permitted by the legislature. See Cooper v.

State, 831 N.E.2d 1247, 1252 (Ind. Ct. App. 2005) (“The trial court’s sentencing authority is

only that which is conferred by the legislature.”), trans. denied. The statute relevant to

consecutive and concurrent sentences provides that the court shall determine whether terms

of imprisonment shall be served concurrently or consecutively, but does not provide a path

for implementing partially consecutive sentences. In relevant part, the statute reads:

                                               6
       Except as provided in subsection (d) or (e), the court shall determine whether
       terms of imprisonment shall be served concurrently or consecutively. The court
       may consider the:
              (1) aggravating circumstances in IC 35-38-1-7.1(a); and
              (2) mitigating circumstances in IC 35-38-1-7.1(b);
       in making a determination under this subsection. The court may order terms of
       imprisonment to be served consecutively even if the sentences are not imposed
       at the same time. However, except for crimes of violence, the total of the
       consecutive terms of imprisonment, exclusive of terms of imprisonment under
       IC 35-50-2-8 and IC 35-50-2-10, 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 of felony
       higher than the most serious of the felonies for which the person has been
       convicted.

Ind. Code § 35-50-1-2(c).

       A reading of our case law shows that both this court and our supreme court regularly

use the phrase “authorized by statute” when discussing sentencing and our standard of review

for sentences. See, e.g., Bish v. State, 421 N.E.2d 608, 620 (Ind. 1981) (“Thus, if the

sentences imposed were authorized by statute, if those sentences are not manifestly

unreasonable, and if the record discloses the trial court’s finding of aggravating and/or

mitigating circumstances, this Court will not revise or strike down the sentences in

question.”) (emphasis added). We rarely, if ever, use the phrase “not prohibited by statute.”

While such phrasing may become rote, and the distinction between a sentence that is

authorized by statute and one that is simply not prohibited is immaterial in many cases, I

believe the difference is important—especially here, where a sentence is in that grey area that

is neither expressly allowed nor expressly prohibited under our sentencing statutes.

       The case law of other jurisdictions lends support to my belief that we are limited to

sentences that are expressly permitted by statute. See, e.g., Scanio v. United States, 37 F.3d

                                              7
858, 863 (2d Cir. 1994) (“The courts have generally frowned upon permitting even the courts

themselves to modify a prisoner’s sentence unless expressly authorized by statute.”); Glaze v.

State, 385 S.W.3d 203, 209 (Ark. 2011) (“Because sentencing is entirely a matter of statute,

the circuit court only has the authority to impose a particular sentence when it complies with

the applicable statute.”); Winkler v. State, 2012 Ark. App. 704, 13-14 (2012) (“A sentence is

void or illegal when the trial court lacks authority to impose it. Because sentencing is

entirely a matter of statute, the circuit court has the authority to impose a particular sentence

only when it complies with the applicable statute.”) (citation omitted); People v. Oshana, 965

N.E.2d 1174, 1192 (Ill. App. Ct. 2012) (“However, a trial court may only impose a sentence

that is authorized, and any unauthorized aspect of a sentence is void and may be attacked at

any time.”), appeal denied, 968 N.E.2d 1070 (Ill. 2012); City of Bozeman v. Cantu, 296 P.3d

461, 466 (Mont. 2013) (“It is well established that a court does not have the power to impose

a sentence unless authorized by a specific grant of statutory authority. A sentencing

condition is illegal if the sentencing court lacked statutory authority to impose it, if the

condition falls outside the parameters set by the applicable sentencing statutes, or if the court

did not adhere to the affirmative mandates of the applicable sentencing statutes.”) (citations

and quotation marks omitted); State v. Rapchack, 265 P.3d 1289, 1291 (N.M. Ct. App. 2011)

(“A trial court’s power to sentence is derived exclusively from statute.”) (citation omitted),

cert. denied, 289 P.3d 1253 (N.M. 2011). Additionally, the United States Supreme Court has

referenced the fact that a legislature’s failure to prohibit a particular sentence does not equate

to that legislature’s approval of the sentence. Graham v. Florida, 560 U.S. 48 (2010) (noting


                                                8
that the fact that many jurisdictions do not expressly prohibit the sentencing practice at issue

is not dispositive because it does not necessarily follow that the legislatures in those

jurisdictions have deliberately concluded that such sentences would be appropriate).

       Because the sentence in question was not explicitly permitted by statute, I believe it

was therefore erroneous. For that reason, I would reverse the trial court’s denial of Wilson’s

motion to correct erroneous sentence.




                                               9
