MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Feb 14 2018, 6:00 am

this Memorandum Decision shall not be                                             CLERK
                                                                              Indiana Supreme Court
regarded as precedent or cited before any                                        Court of Appeals
                                                                                   and Tax Court
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
David Drummond                                           Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Drummond,                                          February 14, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1708-CR-1832
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley E. Kroh,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G03-0108-CF-161376



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018           Page 1 of 9
                                       Statement of the Case
[1]   David Drummond (“Drummond”), pro se, appeals the trial court’s order

      denying his motion to correct erroneous sentence, in which he challenged the

      trial court’s 2002 abstract of judgment that listed Drummond’s days spent in

      presentence confinement but did not expressly designate the corresponding

      credit time earned and the Indiana Department of Correction’s computations of

      his release date and amount of credit time during leap years. Because any error

      in the trial court’s 2002 abstract of judgment is deemed to have been corrected

      by the presumption set forth by the Indiana Supreme Court in Robinson v. State,

      805 N.E.2d 783 (Ind. 2004), and because a motion to correct erroneous

      sentence is limited to correcting sentencing errors apparent on the face of the

      judgment and Drummond raises issues outside of this context, we conclude that

      the trial court did not abuse its discretion by denying his motion to correct

      erroneous sentence.


[2]   We affirm.


                                                     Issue
           Whether the trial court abused its discretion by denying Drummond’s
           motion to correct erroneous sentence.

                                                     Facts
[3]   In 2002, a jury found Drummond guilty of Class A felony child molesting, and

      the trial court imposed a fifty (50) year sentence. In the abstract of judgment,

      the trial court listed that Drummond had spent 267 days in pre-sentence


      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018   Page 2 of 9
      confinement, but it did not expressly designate the corresponding credit time

      earned.


[4]   Fifteen years later, in July 2017, Drummond, pro se, filed a motion to correct

      erroneous sentence and a motion for a hearing.1 He argued that his sentence

      was erroneous because the trial court’s 2002 abstract of judgment listed

      Drummond’s days spent in pre-sentence confinement but did not expressly

      designate the corresponding credit time earned. He also alleged that the

      Indiana Department of Correction had incorrectly computed his release date

      and amount of credit time during leap years. Drummond asserted that he had

      exhausted his administrative remedies “to the best of his ability” and attached

      multiple exhibits to his motion.2 (App. Vol. 2 at 70). The trial court denied

      Drummond’s motions. Drummond now appeals.


                                                     Decision
[5]   Drummond appeals the trial court’s denial of his motion to correct erroneous

      sentence pursuant to INDIANA CODE § 35-38-1-15. We review a trial court’s



      1
       Following the imposition of Drummond’s sentence, he filed numerous pleadings, including a post-
      conviction petition and multiple motions for sentence modification. He also requested and was granted
      permission to file a successive post-conviction petition relating to educational credit. Drummond currently
      has a pending appeal from the denial of his successive post-conviction petition. See Court of Appeals Cause
      Number 17A-PC-3041.
      2
        These exhibits included letters to and various grievance forms filed with his correctional facility and the
      Indiana Department of Correction, as well as his own and the Department of Correction’s calculation of
      credit time and release date. Drummond’s calculation of credit time was computed in accordance with the
      instructions set forth in Neff v. State, 888 N.E.2d 1249 (Ind. 2008) and included a projected release date of
      March 12, 2023 or March 13, 2023. The Department of Correction’s calculation, dated May 5, 2017,
      indicates that Drummond had “JTC” or jail time credit of 267 days and a “PRD” or projected release date of
      March 18, 2023. (App. Vol. 2 at 101).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018           Page 3 of 9
      denial of a motion to correct erroneous sentence for an abuse of discretion,

      which occurs when the trial court’s decision is against the logic and effect of the

      facts and circumstances before it. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct.

      App. 2012).


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

      to correct the sentence pursuant to INDIANA CODE § 35-38-1-15. Neff v. State,

      888 N.E.2d 1249, 1250-51 (Ind. 2008). INDIANA CODE § 35-38-1-15 provides:


              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, 805 N.E.2d at 785 (quoting Gaddie v. State, 566 N.E.2d

      535, 537 (Ind. 1991)).


[7]   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, 805 N.E.2d at 787.

      “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.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018   Page 4 of 9
      2006). “Use of the statutory motion to correct sentence should thus be

      narrowly confined to claims apparent from the face of the sentencing judgment,

      and the ‘facially erroneous’ prerequisite should henceforth be strictly applied[.]”

      Robinson, 805 N.E.2d at 787. Where, as here, a defendant was convicted and

      sentenced in Marion County, which uses an abstract of judgment rather than a

      formal judgment of conviction, any error alleged in the defendant’s motion to

      correct erroneous sentence must be apparent from the face of the abstract of

      judgment. See Neff, 888 N.E.2d at 1251 (holding that, for cases stemming from

      Marion County, “the trial court’s abstract of judgment will serve as an

      appropriate substitute for purposes of making [a motion to correct erroneous

      sentence] claim”).


[8]   Drummond argues that the trial court erred in denying his motion to correct

      erroneous sentence because: (1) the abstract of judgment entered by the trial

      court at the time of sentencing did not specifically designate the amount of

      credit time to which he was entitled for time spent incarcerated prior to

      sentencing; and (2) the Indiana Department of Correction did not apply his 267

      days of presentence credit time and incorrectly computed his release date and

      amount of credit time during leap years.3




      3
        Drummond also suggests that the trial court abused its discretion by denying his motion to have a hearing
      on his motion to correct erroneous sentence. He does not set forth any argument as to why or how the trial
      court’s denial of his hearing motion was an abuse of discretion; instead, he merely asserts that he “expected
      to have a hearing and be present at this hearing to allow him to make his argument[.]” (Drummond’s Br.
      26). Accordingly, he has waived his appellate argument regarding his hearing motion. See Griffith v. State, 59
      N.E.3d 947, 958 n.5 (Ind. 2016) (explaining that the defendant had waived his argument by failing to present
      cogent argument; Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, neither the motion to correct

      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018            Page 5 of 9
[9]    In regard to Drummond’s first argument, we note that, at the time of

       Drummond’s sentencing, INDIANA CODE § 35-38-3-2(b) required a sentencing

       judgment to include “the amount of credit, including credit time earned, for

       time spent in confinement before sentencing[.]” I.C. § 35-38-3-2(b)(4). When a

       defendant’s judgment of conviction (or abstract of judgment for Marion County

       defendants) does not set forth the presentence credit time, our Indiana Supreme

       Court has explained that the following appellate presumption applies:


               Sentencing judgments that report only days spent in pre-sentence
               confinement and fail to expressly designate credit time earned
               shall be understood by courts and by the Department of
               Correction automatically to award the number of credit time
               days equal to the number of pre-sentence confinement days. In
               the event of any pre-sentence deprivation of credit time, the trial
               court must report it in the sentencing judgment. Because the
               omission of designation of the statutory credit time entitlement is
               thus corrected by this presumption, such omission may not be
               raised as an erroneous sentence.

       Robinson, 805 N.E.2d at 792 (footnote omitted).


[10]   Here, the trial court’s abstract of judgment indicated that Drummond was

       “confined prior to sentencing” for 267 days. (App. Vol. 2 at 82). The abstract

       did not include a recitation of credit time; nor did it report any deprivation of

       credit time. As such, the trial court’s abstract of judgment is entitled to

       the Robinson presumption and any error contained therein is accordingly




       erroneous sentence statute nor caselaw requires a hearing be held on a motion to correct erroneous sentence.
       See I.C. § 35-38-1-15; Funk v. State, 714 N.E.2d 746, 752 (Ind. Ct. App. 1999), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018           Page 6 of 9
       corrected by application of this presumption. See Robinson, 805 N.E.2d at 792;

       Pettiford v. State, 808 N.E.2d 134, 136 (Ind. Ct. App. 2004). Accordingly,

       Drummond is presumed to have earned 267 days of credit time for the 267 days

       of his pretrial incarceration, and he “need not resort to our state court system in

       order for the time to be credited toward his sentence.” Young v. State, 888

       N.E.2d 1253, 1254 (Ind. 2008). The trial court, therefore, did not err in denying

       Drummond’s motion to correct erroneous sentence. See id.


[11]   Turning to Drummond’s argument regarding the Department of Correction’s

       failure to apply his earned credit time and its computation of his release date

       and credit time for leap years, we note that our supreme court recognized that

       “[i]t is, of course, possible that a prisoner could accidentally be deprived of

       earned credit time toward his sentence” and that “[t]he presumption

       in Robinson has the effect of treating such an accident as merely an

       administrative error that can be addressed by the Department of Correction

       (DOC) easily and efficiently through its offender grievance process.” Id.

       Additionally, our supreme court held that when an offender believes the

       Department of Correction has “mistakenly failed to give an offender earned

       credit time, the offender must exhaust administrative remedies before seeking

       relief from a court.” Neff, 888 N.E.2d at 1252. “[T]o present such a claim to a

       court, a petitioner must show what the relevant DOC administrative grievance

       procedures are, and that they have been exhausted at all levels.” Young, 888

       N.E.2d at 1254 (emphasis added). “[A] petition for post[-]conviction relief is

       the proper vehicle for raising a credit-time claim after administrative remedies

       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018   Page 7 of 9
       have been exhausted.” Ellis v. State, 58 N.E.3d 938, 940 n.1 (Ind. Ct. App.

       2016) (citing Young v. State, 888 N.E.2d 1255, 1256-57 (Ind. 2008)), trans. denied.

       Indeed, “all manner of claims of sentencing errors (other than those that do not

       require consideration of matters outside the face of the sentencing judgment),

       are addressed via post-conviction relief proceedings.” Young, 888 N.E.2d at

       1256 (citing Robinson, 805 N.E.2d at 787).


[12]   Here, Drummond’s allegations of error regarding the Department of Correction

       are not appropriate for a motion to correct erroneous sentence because the

       alleged errors are not clear from the face of the abstract of judgment. See

       Robinson, 805 N.E.2d at 787. Instead, the proper vehicle for Drummond to

       raise any credit-time claim is a post-conviction proceeding in which he must

       show: (1) what the relevant DOC administrative grievance procedures are; and

       (2) that they have been exhausted at all levels. See Young, 888 N.E.2d at 1254;

       Young, 888 N.E.2d at 1256-57; Ellis, 58 N.E.3d at 940 n.1. 4


[13]   Drummond has improperly raised his claims of error in a motion to correct

       erroneous sentence. Additionally, Drummond alleged only that he believed

       that his administrative remedies had been exhausted, but he failed to set forth

       the relevant Department of Correction’s administrative grievance procedure,

       which was required to present such a claim. See Young, 888 N.E.2d at 1254.




       4
         As Drummond has already had a post-conviction proceeding, he would be required to follow the
       procedure outlined in Post-Conviction Rule 1(12) for filing a successive post-conviction petition. As noted
       above, Drummond has already filed such a successive petition in regard to his educational credit time claim.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018           Page 8 of 9
       Because Drummond has failed to show that the trial court abused its discretion

       by denying his motion to correct erroneous sentence, we affirm the trial court’s

       judgment. See, e.g., id. (explaining that “a petitioner must show what the

       relevant DOC administrative grievance procedures are[] and that they have

       been exhausted at all levels”); Young, 888 N.E.2d at 1257 (stating that if the

       defendant “hope[d] to prevail on his [credit-time] claim after he ha[d] properly

       presented it to the Court via post-conviction procedures” he would have to

       “show in the first place what the relevant DOC administrative grievance

       procedures are[] and then that he ha[d] exhausted them at all levels”).


[14]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1832| February 14, 2018   Page 9 of 9
