MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Apr 25 2019, 7:37 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Tyrone L. Noble                                           Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana
                                                          Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyrone L. Noble,                                          April 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1662
        v.                                                Appeal from the
                                                          Lake Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Clarence D. Murray, Judge
                                                          The Honorable
                                                          Natalie Bokota, Magistrate
                                                          Trial Court Cause No.
                                                          45G02-9807-CF-127



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019                    Page 1 of 8
[1]   Tyrone Noble was convicted after a jury trial of felony murder and sentenced to

      sixty years executed in the Department of Correction. He appeals the denial of

      his motion to correct error, in which he alleged that he had been erroneously

      denied 1,562 days of pretrial credit time, and argues that the trial court abused

      its discretion when it denied his motion.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On May 31, 2001, Noble was sentenced to sixty years in the Department of

      Correction for his conviction for felony murder. Suppl. Appellant’s App. Vol. 2 at

      2-4. The sentencing order specifically stated that “[t]he sentence of

      imprisonment shall run consecutively to the sentence imposed in U.S. District

      Court, Northern District, Cause No. 2:97CR155 for the reason that it is

      mandatory pursuant to I.C. 35-50-1-2-(2).” Id. at 3. The sentencing order also

      stated that Noble “shall not be given any days [sic] credit toward the sentence of

      imprisonment for time spent in confinement as a result of this charge for the

      reason that the sentence is consecutive to the sentence imposed in . . . Cause

      No. 2:97CR155 in which he has been serving time since January 2000.” Id. at

      4. In the time between Noble’s sentencing on May 31, 2001, and the filing of

      this appeal on June 28, 2018, Noble sought relief by both direct appeal and

      through the post-conviction process. Id. at 27.


[4]   On July 16, 2009, Noble filed a petition for jail time credit contending that he

      was entitled to 1,061 days of pretrial credit time. Id. at 7-8. On the same date,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019   Page 2 of 8
      the trial court denied Nobel’s petition for jail time credit, stating that “[t]he

      sentence in this case is not erroneous on its face” and that the proper procedure

      by which to raise his claim was a successive petition for post-conviction relief

      under Post-Conviction Rule 1, Section 12. Id. at 15. Noble did not appeal this

      order.


[5]   On September 20, 2016, Noble filed a second motion for jail time credit, this

      time alleging he was entitled to 1,061 days of jail time credit confinement and

      2,122 days of earned credit time for the time spent in confinement before

      sentencing. Id. at 16-17. On the same date, the trial court denied Noble’s

      motion “for the reasons stated in this court’s order of July 16, 2009.” Id. at 20.

      Noble did not appeal the trial court’s order.


[6]   On April 27, 2018, Noble filed a third motion, a motion to correct erroneous

      sentence, but did not specify the amount of credit time to which he alleged to be

      entitled. Id. at 21-25. On May 3, 2018, the trial court again denied Noble’s

      motion, reasoning that a motion to correct erroneous sentence may only be

      used to attack a sentence that is erroneous on its face and that Noble’s sentence

      was not erroneous on its face. Id. at 27. The trial court also stated that the

      issues raised by Noble must be addressed in a petition for post-conviction relief

      and that he had previously sought post-conviction relief. Id. The trial court

      further noted that the proper procedure to raise any claim was a successive

      petition for post-conviction relief. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019   Page 3 of 8
[7]   Noble filed the motion at issue in the present appeal, a motion to correct error,

      on May 24, 2018 and asserted that he had been denied 781 days of pretrial

      credit time plus 781 days of “day for day” credit. Odyssey, Motion to Correct

      Error.1 The trial court denied the motion on May 31, 2018. Noble now appeals.


                                         Discussion and Decision
[8]   Noble argues that the trial court abused its discretion when it denied his motion

      because he contends that he was unlawfully denied credit time for the time that

      he spent incarcerated prior to his conviction and sentencing for felony murder.

      Although Noble entitled his motion as a motion to correct error, it is more

      properly considered a motion to correct erroneous sentence. An inmate who

      believes he has been erroneously sentenced may file a motion to correct the

      sentence pursuant to Indiana Code section 35-38-1-15.2 Neff v. State, 888 N.E.2d

      1249, 1250-51 (Ind. 2008). We review a ruling on a motion to correct

      erroneous sentence only for an abuse of discretion. Hobbs v. State, 71 N.E.3d

      46, 48 (Ind. Ct. App. 2017) (citing Woodcox v. State, 30 N.E.3d 748, 750 (Ind.



      1
        The May 24, 2018 motion to correct error and the May 31, 2018 order denying that motion, which are the
      subject of this appeal, were not included in the record on appeal and have not been included in Noble’s
      supplemental appendix. We were able to find these documents on Odyssey, the Indiana courts case
      management system, under Cause Number 45G02-9807-CF-127. See Ind. Appellate Rule 27 (“The Record
      on Appeal . . . consist[s] of the Clerk’s Record and all proceedings before the trial court . . . whether or not
      transcribed or transmitted to the Court on Appeal.”). A reference to a document found in “Odyssey,” will
      contain that designation.
      2
          Indiana Code section 35-38-1-15 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.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019                        Page 4 of 8
      Ct. App. 2015)), trans. denied. We will find an abuse of discretion only if the

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

      circumstances before it. Id.


[9]   Here, Noble’s claim is barred by the doctrine of res judicata. “Res judicata is a

      legal doctrine intended ‘to prevent repetitious litigation of disputes that are

      essentially the same, by holding a prior final judgment binding against both the

      original parties and their privies.’” Montgomery v. State, 58 N.E.3d 279, 280

      (Ind. Ct. App. 2016) (quoting Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d

      988, 993 (Ind. 2014)). It applies where there has been a final adjudication on

      the merits of the same issue between the same parties. Id. This is the fourth

      time that Noble has litigated a petition requesting credit for time he spent

      incarcerated pretrial for his felony murder conviction. In the present appeal, he

      is appealing the May 31, 2018 denial of his May 24, 2018 motion to correct

      erroneous sentence. Previously, he has filed petitions on July 16, 2009,

      September 20, 2016, and April 27, 2018, seeking the same relief as in his current

      motion. All of his prior petitions were denied, and he failed to appeal any of

      those denials. Therefore, because Noble has previously filed the exact same

      claims as he raised in his May 24, 2018 motion, and because these claims have

      already been decided, his claims are barred by the res judicata doctrine. See

      Love v. State, 22 N.E.3d 663, 664-65 (Ind. Ct. App. 2014) (finding defendant’s

      claims barred by res judicate where defendant’s claims had previously been

      decided), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019   Page 5 of 8
[10]   As stated earlier, Noble’s motion is properly considered as a motion to correct

       erroneous sentence under Indiana Code section 35-38-1-15. Our Supreme

       Court has held that a motion to correct erroneous sentence under that section

       “may only be filed to address a sentence that is ‘erroneous on its face.’” Neff,

       888 N.E.2d at 1251 (quoting Robinson v. State, 805 N.E.2d 783, 786 (Ind.

       2004)). A motion to correct an erroneous sentence may only arise out of

       information contained on the formal judgment of conviction. Id. A 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, and 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. Robinson, 805 N.E.2d at 787. Sentencing errors that are

       not facially apparent must be raised on direct appeal or post-conviction relief.

       Neff, 888 N.E.2d at 1251.


[11]   In the present case, the trial court’s sentencing order specifically stated that

       Noble was not to be “given any days [sic] credit toward the sentence of

       imprisonment for time spent in confinement as a result of this charge for the

       reason that the sentence is consecutive to the sentence imposed in U.S. District

       Court, Northern District, Cause No. 2:97CR155 in which he has been serving

       time since January 2000.” Suppl. Appellant’s App. Vol. 2 at 4. At the time of

       sentencing, Noble had been serving a sentence under that federal cause number

       since January 2000, which was prior to his May 31, 2001, sentencing date in the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019   Page 6 of 8
       present case, and, therefore, resulted in mandatory consecutive sentences under

       Indiana Code section 35-50-1-2. Id. at 3-4.


[12]   In his motion to correct erroneous sentence, Noble attached documentation

       from the Lake County Sheriff to support his contention that he was improperly

       denied credit for time spent incarcerated prior to sentencing. Odyssey, Motion to

       Correct Error. Noble’s request that we examine this documentation from the

       Lake County Sheriff, which is separate from his sentencing order, in our review

       as to whether the trial court erred in denying his motion demonstrates that this

       is not a claim that is facially apparent. Therefore, his claim “may be raised only

       on direct appeal and, where appropriate, by post-conviction proceedings.” See

       Robinson, 805 N.E.2d at 787. In its previous denials of Noble’s motions, the

       trial court had informed him that he must file a successive petition for post-

       conviction relief in order to address the issue raised. Suppl. Appellant’s App. Vol.

       2 at 15, 20, 27. We conclude that the trial court did not abuse its discretion in

       denying Noble’s motion to correct erroneous sentence.


[13]   However, even if this issue was proper for a motion to correct erroneous

       sentence, Noble would not be entitled to relief. Noble contends that he is

       entitled to credit for time he was incarcerated prior to his conviction and

       sentencing for felony murder in the present case. However, he has already

       received credit for this time because he had already been sentenced for, and was

       serving time for, his conviction under Cause No. 2:97CR155 in the district

       court. Credit is to be applied for time spent in confinement that is the result of



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019   Page 7 of 8
       the charge for which the defendant is being sentenced. Stephens v. State, 735

       N.E.2d 278, 285 (Ind. Ct. App. 2000), trans. denied.


[14]   Here, the trial court specifically declined to apply pretrial credit time to Noble’s

       sentence because it was consecutive to his federal conviction and sentence,

       under which he had been serving time prior to the trial and sentencing in this

       case. Suppl. Appellant’s App. Vol. 2 at 3-4. Thus, the time Noble spent

       incarcerated awaiting trial on his felony murder charge was time he was serving

       his federal sentence, and he received credit for that time against the federal

       sentence. To award credit for this time against the sentence in the present case

       rather than against the aggregate of the consecutive sentences would result in

       more credit to which Noble was entitled and would effectively enable him to

       serve part of the consecutive sentences concurrently. Therefore, the trial court

       did not abuse its discretion in refusing to award Noble pretrial credit time and

       in denying his motion to correct erroneous sentence.


[15]    Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1662 | April 25, 2019   Page 8 of 8
