Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                     Dec 20 2012, 9:28 am
court except for the purpose of
establishing the defense of res judicata,                            CLERK
                                                                   of the supreme court,
collateral estoppel, or the law of the case.                       court of appeals and
                                                                          tax court




APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

JOHN CHUPP                                      GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                ANDREW FALK
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                                IN THE
                     COURT OF APPEALS OF INDIANA

JOHN CHUPP,                                     )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A05-1206-CR-328
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Sheila A. Carlisle, Judge
                            Cause No. CR82-81A (82002401)


                                    December 20, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, John Chupp (Chupp), appeals the trial court’s denial of his

motion to correct erroneous sentence.

       We affirm.

                                         ISSUE

       Chupp raises one issue on appeal which we restate as: Whether the trial court

properly denied his motion to correct erroneous sentence.

                       FACTS AND PROCEDURAL HISTORY

       For the recitation of the facts we rely on our supreme court’s opinion in Chupp’s

direct appeal:

       At trial the evidence showed that L.M., a 72-year-old widow, was
       awakened around 11:30 p.m. on July 10, 1982 by three men who crashed
       through her bedroom door. They demanded to know where her money was
       kept, and she told them it was downstairs. One of the men found her purse
       but it contained only thirty-one dollars. To force her to reveal the location
       of the rest of her money, one of the men burned her hand with a cigarette
       lighter. L.M. tried to explain that she had just returned from vacation and
       that thirty-one dollars was all she had. One of the men directed the other
       two to ransack the house. The remaining man raped L.M. and then one of
       the men sodomized her.

     The men bound and gagged L.M. and finished searching the house. The
     victim was not found until noon the following day when her son-in-law
     discovered her. An ambulance transported her to a hospital where a
     medical examination revealed that L.M. had suffered bruises, lacerations,
     blisters, and swelling. She lost her purse with thirty-one dollars, her lock
     box containing personal papers and silver coins, and her maroon car.
Chupp v. State, 509 N.E.2d 835, 836 (Ind. 1987). Chupp was identified as one of

the perpetrators. Id. On July 10, 1982, the State charged Chupp with burglary, a

Class A felony; two Counts of rape, Class A felonies; two Counts of criminal


                                            2
deviate conduct, Class A felonies; robbery, a Class A felony; and criminal

confinement, a Class B felony. At the conclusion of Chupp’s jury trial, he was

found guilty of burglary, a Class A felony; robbery, a Class A felony; and criminal

confinement, a Class B felony. The trial court sentenced Chupp to concurrent

fifty-year sentences for each Class A felony and to twenty years for the Class B

felony, to run consecutive to the Class A felonies, for an aggregate sentence of

seventy years. After pursuing a direct appeal, Chupp’s convictions and sentences

were affirmed by our supreme court. See id.

       On two separate occasions, Chupp filed a petition for post-conviction relief,

each of which was withdrawn without prejudice. On April 24, 2007, Chupp filed

a third petition for post-conviction relief, asserting newly discovered evidence and

claiming that his sentence was erroneous because the robbery and burglary

convictions were enhanced based on the same injuries. The post-conviction court

denied his petition. On appeal, we denied most of Chupp’s claims but concluded

that the elevation of both the burglary and robbery count to Class A felonies was

based on the same injuries and thus violated the principles of double jeopardy.

See Chupp v. State, 933 N.E.2d 586,*5 (Ind. Ct. App. 2010) (unpublished

opinion). We vacated Chupp’s conviction for robbery as a Class A felony and

directed the post-conviction court to enter judgment on the robbery conviction as a

Class C felony and to resentence him accordingly. See id. at *10. On January 20,

2011, the trial court modified Chupp’s Class A felony robbery conviction to a

Class C felony, vacated the fifty year sentence and imposed an eight year sentence


                                            3
to run concurrent to the fifty year sentence of the Class A felony burglary

conviction, and consecutive to the twenty year sentence for the Class B felony

criminal confinement, for an aggregate sentence of seventy years.

      On June 13, 2012, Chupp filed a motion to correct erroneous sentence,

alleging that his conviction for both robbery, a Class C felony, and criminal

confinement, a Class B felony, violated the double jeopardy doctrine. The trial

court denied Chupp’s motion on the same day.

      Chupp now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

      Chupp contends that the trial court abused its discretion by denying his motion to

correct erroneous sentence. When reviewing a trial court’s ruling on a motion to correct

erroneous sentence, we defer to the trial court’s factual findings and review its decision

only for an abuse of discretion. Newson v. State, 851 N.E.2d 1287, 1289 (Ind. Ct. App.

2006). We review its legal conclusions de novo. Id.

      Our supreme court discussed the legal significance of a motion to correct

erroneous sentence at length in Robinson v. State, 805 N.E.2d 783 (Ind. 2004). In

Robinson, the court noted that a motion to correct sentence derives from Indiana Code

section 35-38-1-15 and its purpose is to provide prompt, direct access to an

uncomplicated legal process for correcting the occasional erroneous or illegal sentence.

Id. at 785. Such a motion may only be used to correct erroneous sentencing errors that

are clear from the face of the judgment imposing the sentence in light of the statutory

authority. Id. at 787. Claims that require consideration of the proceedings before,


                                            4
during, or after trial may not be presented by way of a motion to correct sentence. Id. at

787.

       Chupp relies on Robinson to support his argument that a double jeopardy claim

can be addressed in a motion to correct erroneous sentence.            However, Chupp

mischaracterizes the Robinson court’s holding. In analyzing the applicability of a motion

to correct erroneous sentence, the court observed that it had in Mitchell v. State, 726

N.E.2d 1228, 1243 (Ind. 2000) “addressed a double jeopardy claim presented by a motion

to correct sentence.” Robinson, 805 N.E.2d at 787. But, the Robinson court clearly

rejected this approach in Mitchell, noting that “[u]se of the statutory motion to correct

sentence should [] be narrowly confined to claims apparent from the face of the

sentencing judgment, and the ‘facially erroneous’ prerequisite should henceforth be

strictly applied, notwithstanding . . . Mitchell.” Id.

       Accordingly, when strictly construing the application of a motion to correct

erroneous sentence, we must necessarily affirm the trial court’s denial of Chupp’s

motion.    A double jeopardy claim is a challenge to the validity of a defendant’s

conviction, not to the validity of a sentence. See, e.g., Mapp v. State, 770 N.E.2d 332,

334 (Ind. 2002). In its review of a perceived double jeopardy violation, a court must

analyze the elements of the offense and the evidence used to establish those elements.

See Richardson v. State, 717 N.E.2d 32, 50-53 (Ind. 1999). It is clear that such a review

would surpass the mere sentencing error that is clear from the face of the judgment and

would require us to consider the charging information and proceedings during trial. We

affirm the trial court.


                                               5
                                  CONCLUSION

   Based on the foregoing, we affirm the trial court’s denial of Chupp’s motion to

correct erroneous sentence.

      Affirmed.

BAKER, J. and BARNES, J. concur




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