MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Oct 27 2017, 10:03 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Damon Nelson                                             Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Angela Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Damon Nelson,                                            October 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1611-CR-2600
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley Kroh,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause Nos.
                                                         49G03-0108-FB-172920
                                                         49G03-0108-PC-172920



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017        Page 1 of 6
[1]   Damon Nelson appeals the order of the trial court denying his motion to correct

      erroneous sentence. Nelson raises one issue which we revise and restate as

      whether the trial court abused its discretion in denying his motion. We affirm.


                                      Facts and Procedural History

[2]   On December 19, 2001, the court sentenced Nelson in Cause No. 49G03-0108-

      DF-172920 (“Cause No. 920”) to twenty years for aggravated battery as a class

      B felony, eight years for battery as a class C felony, and one year for battery as a

      class A misdemeanor.


[3]   On November 13, 2015, the court sentenced Nelson under cause number

      49G14-1401-FD-264 (“Cause No. 264”) to 1020 days for possession of cocaine

      or a schedule I or II drug pursuant to a plea agreement and dismissed other

      charges. The sentencing order states that he had already served 510 days and

      had earned 510 credit days.


[4]   On October 19, 2016, Nelson, pro se, filed a motion to correct erroneous

      sentence under Cause No. 920 alleging that he was released from the

      Department of Correction on May 31, 2013, was rearrested on refiled charges

      on January 23, 2014, and remained in custody until December 3, 2015 with a

      parole hold, and that the parole warrant was served on January 28, 2014

      starting his sentence. He also asserted that he remained in jail for 705 days on a

      parole hold and was entitled to credit days. On October 20, 2016, the court

      denied Nelson’s motion.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 2 of 6
                                                  Discussion

[5]   The issue is whether the trial court abused its discretion in denying Nelson’s

      motion to correct erroneous sentence. Nelson argues that he should be

      awarded “credit and good days,” that the trial court violated Ind. Code §§ 35-

      50-6-3 and 35-50-6-4, and that “those sentences are to run consecutive I was

      only credited 510-1020 total days toward the case however I remained in

      custody a total of 702-1404 days.” Appellant’s Brief at 7. The State argues that

      Nelson waived all of his claims for failure to make a cogent argument. The

      State also argues that regardless of waiver, Nelson appears to be arguing that he

      should have received more credit days under Cause No. 920 for his

      confinement during the pendency of his case in Cause No. 264, that such an

      argument requires the trial court to look at matters outside the face of the

      judgment, and that the trial court properly denied Nelson’s motion.


[6]   We note that although Nelson is proceeding pro se, such litigants are held to the

      same standard as trained counsel and are required to follow procedural rules.

      Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Nelson

      does not cite to the record in his statement of the case, statement of the facts, or

      argument, and he does not include a standard of review. See Ind. Appellate

      Rule 46(A)(5) (governing the Statement of Case and providing that “[p]age

      references to the Record on Appeal or Appendix are required in accordance

      with Rule 22(C)”); Ind. Appellate Rule 46(A)(6) (providing that the Statement

      of Facts “shall be supported by page references to the Record on Appeal or

      Appendix in accordance with Rule 22(C)”); Ind. Appellate Rule 46(A)(8)

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 3 of 6
      (providing that “[e]ach contention must be supported by citations to the

      authorities, statutes, and the Appendix or parts of the Record on Appeal relied

      on, in accordance with Rule 22,” and that “[t]he argument must include for

      each issue a concise statement of the applicable standard of review”). To the

      extent Nelson fails to cite to relevant authority or the record or develop an

      argument with respect to the issue he attempts to raise on appeal, those

      arguments are waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006)

      (holding that the defendant’s contention was waived because it was “supported

      neither by cogent argument nor citation to authority”); Shane v. State, 716

      N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument

      on appeal by failing to develop a cogent argument); Smith v. State, 822 N.E.2d

      193, 202-203 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised

      on appeal where the party fails to develop a cogent argument or provide

      adequate citation to authority and portions of the record.”), trans. denied.


[7]   To the extent Nelson is arguing that the trial court improperly denied his

      motion because he is entitled to credit time, we cannot say that reversal is

      warranted. Generally, we review a trial court’s decision on a motion to correct

      erroneous sentence only 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.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 4 of 6
[8]   An inmate who believes he has been erroneously sentenced may file a motion

      to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888

      N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. 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.


[9]   In Robinson v. State, the Indiana Supreme Court noted that a motion to correct

      erroneous sentence is available only when the sentence is “erroneous on its

      face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court

      emphasized that “a motion to correct an erroneous sentence may only arise out

      of information contained on the formal judgment of conviction . . . .” Neff, 888

      N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A motion to correct

      erroneous sentence may be only 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. 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. Id. Sentencing claims that are not

      facially apparent “may be raised only on direct appeal and, where appropriate,

      by post-conviction proceedings.” Id. “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 . . . be

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 5 of 6
       strictly applied . . . .” Id. The Court also held that the “sentence” that is subject

       to correction under Ind. Code § 35-38-1-15 “means the trial court’s judgment of

       conviction imposing the sentence and not the trial court’s entries on the

       Department of Correction’s abstract of judgment form.” Id. at 794.


[10]   To address the claims that Nelson is entitled to credit would require a

       consideration of proceedings before, during, or after his sentencing. Thus, these

       arguments are not properly presented by way of a motion to correct erroneous

       sentence. We cannot say that the trial court abused its discretion by denying his

       motion. See Jackson v. State, 806 N.E.2d 773, 774 (Ind. 2004) (holding that the

       trial court properly denied the defendant’s motion to correct erroneous sentence

       and noting that a motion to correct erroneous sentence is available only to

       correct sentencing errors clear from the face of the judgment).


                                                   Conclusion

[11]   For the foregoing reasons, we affirm the denial of Nelson’s motion to correct

       erroneous sentence.


[12]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 6 of 6
