MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Dec 21 2015, 6:12 am
regarded as precedent or cited before any
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
Harry Hobbs                                             Gregory F. Zoeller
Indiana State Prison                                    Attorney General of Indiana
Michigan City, Indiana                                  Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Harry Hobbs,                                            December 21, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1505-CR-314
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Lisa F. Borges,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Anne Flannelly,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G04-9309-CF-119274



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1505-CR-314| December 21, 2015       Page 1 of 7
                                            Case Summary
[1]   Harry Hobbs appeals the denial of his motion to correct erroneous sentence.

      We conclude that two of his sentences exceed the statutory maximum provided

      for by the applicable statute. However, Hobbs’s aggregate sentence is not

      facially erroneous. Therefore, we affirm in part, reverse in part, and remand for

      the trial court to correct the two erroneous sentences and rearrange the

      consecutive and concurrent relationships among all four of Hobbs’s sentences

      so that his aggregate sentence remains the same.


                                 Facts and Procedural History
[2]   On November 2, 1992, Hobbs committed the crimes from which this appeal

      stems. On September 15, 1993, the State charged him with Count 1, class A

      felony rape; Count 2, class A felony criminal deviate conduct; Count 3, class B

      felony burglary; and Count 4, class A felony criminal deviate conduct. A jury

      found Hobbs guilty as charged. On July 12, 1994, the trial court sentenced

      Hobbs to fifty years for Count 1, thirty years for Count 2, twenty years for

      Count 3, and fifty years for Count 4. The court ordered Counts 1 and 2 to run

      concurrent to each other and Counts 3 and 4 to run consecutive to each other

      and to Count 1, for an aggregate sentence of 120 years. Appellant’s App. at 9,

      87.


[3]   Hobbs appealed his convictions and sentence. He argued that the evidence was

      insufficient to support his convictions, that his convictions violated double

      jeopardy principles, and that his sentence was manifestly unreasonable. This


      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-CR-314| December 21, 2015   Page 2 of 7
      Court affirmed. Hobbs v. State, No. 49A02-9410-CR-614 (Ind. Ct. App. May 25,

      1995).


[4]   On March 27, 2015, Hobbs filed a motion to correct erroneous sentence

      pursuant to Indiana Code Section 35-38-1-15. He argued that his sentence

      violated Indiana Code Section 35-50-2-4, as amended July 1, 1994, because the

      new version reduced the presumptive sentence for a class A felony from thirty

      years to twenty-five years. He also argued that his aggregate sentence exceeded

      the limitation in Indiana Code Section 35-50-1-2, as amended effective July 1,

      1994, on consecutive sentences arising from an episode of criminal conduct.

      The trial court found that Hobbs’s sentence was not facially erroneous and

      denied his motion. This appeal ensued.


                                     Discussion and Decision
[5]   Hobbs appeals the denial of his motion to correct erroneous sentence. Our

      supreme court has held,

               [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.


      Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). The purpose of a motion to

      correct sentence “‘is to provide prompt, direct access to an uncomplicated legal

      process for correcting the occasional erroneous or illegal sentence.’” Id. at 785


      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-CR-314| December 21, 2015   Page 3 of 7
      (quoting Gaddie v. State, 566 N.E.2d 535, 537 (Ind. 1991)). When we review the

      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 abuse of discretion,

      and we review its legal conclusions de novo.” Newsom v. State, 851 N.E.2d

      1287, 1289 (Ind. Ct. App. 2006).


[6]   Hobbs contends, and the State concedes, that the fifty-year terms imposed on

      his class A felony convictions in Counts 1 and 4 are in violation of the version

      of Indiana Code Section 35-50-2-4, effective July 1, 1994, which he asserts

      applies to his sentences pursuant to the doctrine of amelioration. We agree.

      “Generally, defendants must be sentenced under the statute in effect at the time

      the defendant committed the offense.” Turner v. State, 870 N.E.2d 1083, 1085

      (Ind. Ct. App. 2007). However, the doctrine of amelioration allows a defendant

      who is sentenced after the effective date of a statute that provides for more

      lenient sentencing to be sentenced pursuant to the more lenient statute. Id.

      “An amendment to a statute is only ameliorative if the maximum penalty under

      the new version of the statute is shorter than the maximum penalty under the

      old version of the statute.” Id. at 1086. The ameliorative statute will apply to

      defendants sentenced after its effective date only when the legislature fails to




      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-CR-314| December 21, 2015   Page 4 of 7
      include a specific savings clause. 1 Jacobs v. State, 835 N.E.2d 485, 491 n.7 (Ind.

      2005).


[7]   Hobbs committed his offenses on November 2, 1992, and was sentenced on

      July 12, 1994. In between these events, Section 35-50-2-4 was amended. At the

      time Hobbs committed his offenses, Section 35-50-2-4 provided for a

      presumptive sentence of thirty years for a class A felony, with not more than

      twenty years added for aggravating circumstances and not more than ten years

      subtracted for mitigating circumstances. Effective July 1, 1994, Section 35-50-

      2-4 was amended to change the presumptive sentence to twenty-five years,

      thereby limiting the maximum term for a class A felony to forty-five years.

      Pub. Law No. 164-1994, § 3.


[8]   Because the maximum penalty under the July 1, 1994 version of the statute is

      shorter than that provided for in its prior version, the statute is ameliorative. In

      addition, the legislature did not include a specific savings clause, so it is

      applicable to defendants sentenced after its effective date. Therefore, we

      conclude that under the doctrine of amelioration, Hobbs is entitled to be

      sentenced pursuant to the July 1, 1994 version of Section 35-50-2-4. See Payne v.

      State, 688 N.E.2d 164, 165 (Ind. 1997) (concluding that amendment to Ind.

      Code § 35-50-1-2, effective July 1, 1994, applied to defendant sentenced in




      1
        “A savings clause expressly states an intention that crimes committed before the effective date of the
      ameliorative amendment should be prosecuted under prior law.” Payne v. State, 688 N.E.2d 164, 165 n.6
      (Ind. 1997).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-CR-314| December 21, 2015           Page 5 of 7
      December 1994). In this respect only, the trial court erred in denying Hobbs’s

      motion, and Hobbs is entitled to relief. Accordingly, we reverse and remand for

      Hobbs’s fifty-year sentences to be revised to forty-five-year sentences, the

      maximum term permitted under the July 1, 1994 version of Section 35-50-2-4. 2


[9]   Hobbs argues that because his fifty-year sentences for Counts 1 and 4 must be

      revised, his aggregate sentence also must be revised to 110 years. We disagree.

      The revision of his fifty-year sentences does not require that his 120-year

      aggregate sentence be revised because his aggregate sentence is not facially

      erroneous. 3 Therefore, when the trial court revises Hobbs’s fifty-year sentences

      to forty-five years, it may rearrange Hobbs’s sentences to effectuate a 120-year

      aggregate sentence. See Wilson v. State, 5 N.E.3d 759, 765 (Ind. 2014)

      (concluding that where manner of imposing multiple sentences violated

      statutory authority but fifty-year aggregate sentence was in compliance with

      applicable statutes, proper remedy was to remand for trial court to arrange

      individual sentences so as not to exceed fifty years).




      2
        Hobbs mistakenly asserts that his sentence for Count 2 must also be reduced. His sentence for Count 2 is
      thirty years, which does not violate the July 1, 1994 version of Section 35-50-2-4.
      3
         Hobbs contends that his crimes constitute an episode of criminal conduct and therefore his aggregate
      sentence violates the version of Indiana Code Section 35-50-1-2 in effect when he was sentenced. This claim
      is inappropriate for a motion to correct erroneous sentence. See Davis v. State, 978 N.E.2d 470, 474 (Ind. Ct.
      App. 2012) (stating that whether crimes constitute an episode of criminal conduct requires consideration of
      circumstances outside the face of the judgment and therefore is not properly presented by motion to correct
      erroneous sentence). Hobbs’s reliance on Payne, 688 N.E.2d 164, and Richards v. State, 681 N.E.2d 208 (Ind.
      1997), is unavailing because both involved direct appeals and not motions to correct erroneous sentence.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-CR-314| December 21, 2015             Page 6 of 7
[10]   Affirmed in part, reversed in part, and remanded.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-CR-314| December 21, 2015   Page 7 of 7
