Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                          Nov 21 2014, 8:31 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MICHAEL J. KYLE                                    GREGORY F. ZOELLER
Baldwin Adams & Kamish                             Attorney General of Indiana
Franklin, Indiana
                                                   ELLEN H. MEILAENDER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM A. RUSSELL,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 41A04-1406-CR-290
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE JOHNSON CIRCUIT COURT
                       The Honorable Peter D. Nugent, Special Judge
                             Cause No. 41C01-0511-FB-24



                                       November 21, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

       Appellant-Defendant William A. Russell was convicted of Class B felony burglary

and found to be a habitual offender on November 14, 2006. He was subsequently sentenced

to a term of twenty years for the Class B felony burglary conviction. His sentence was

enhanced by an additional twenty-year term by virtue of his status as a habitual offender.

Russell has since filed three separate motions seeking to correct what he alleges was an

erroneous sentence. The trial court denied each of these motions, the last of which was

denied on May 30, 2014. On appeal, Russell argues that the trial court erred in denying his

third motion to correct his allegedly erroneous sentence. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On November 7, 2005, Russell, with the intent to commit a theft therein, entered the

residence of Christopher Stainbrook. Stainbrook awoke to find Russell in his bedroom.

Stainbrook subsequently discovered that Russell had stolen $52.00 from inside of

Stainbrook’s girlfriend’s purse.

       On November 9, 2005, Appellee-Plaintiff the State of Indiana (the “State”) charged

Russell with Class B felony burglary. The State also alleged that Russell was a habitual

offender. On November 14, 2006, the trial court found Russell guilty of Class B felony

burglary. The trial court also found that Russell was a habitual offender. The trial court

subsequently sentenced Russell to a term of twenty years for Class B felony burglary and

enhanced the sentence by an additional twenty-year term by virtue of Russell’s status as a

habitual offender. The trial court’s sentencing order makes no mention as to whether

                                            2
Russell’s sentence was to be run consecutive to his prior unrelated sentence.1

        On January 11, 2007, Russell filed a notice of appeal. Russell subsequently filed a

motion to dismiss the appeal, which was dismissed with prejudice on June 4, 2007. On

October 27, 2008, Russell filed a petition for post-conviction relief (“PCR petition”). Russell

did not raise any challenge relating to his sentence in his PCR petition. A hearing was held

on Russell’s PCR petition on August 10, 2009, after which the post-conviction court denied

Russell’s request for post-conviction relief.

        On August 4, 2011, Russell, by counsel, filed a motion to correct erroneous sentence.

In this motion, Russell claimed that his sentence was erroneous pursuant to Indiana Code

section 35-38-1-15 and the Indiana Supreme Court’s opinion in Breaston v. State, 907 N.E.2d

992 (Ind. 2009)2 because he was on parole for an unrelated conviction, the sentence for which

has also been enhanced by virtue of his status as a habitual offender, at the time that he was

sentenced in the instant matter. The trial court subsequently denied Russell’s motion.

Russell filed a notice of appeal on September 16, 2011. On January 30, 2012, Russell filed a

motion to dismiss the appeal. Russell’s appeal was thereafter dismissed with prejudice.

        On December 13, 2012, Russell, again by counsel, filed a second motion to correct

erroneous sentence. In this motion, Russell again claimed that his sentence was erroneous

under Indiana Code section 35-38-1-15 and the Indiana Supreme Court’s opinion in


        1
          In addition, we note that neither party has provided the court with a copy of the sentencing transcript
on appeal.

        2
          In Breaston, the Indiana Supreme Court held that “[u]nder Indiana law, a trial court cannot order
consecutive habitual offender sentences.” 907 N.E.2d at 995.

                                                       3
Breaston. Russell attached a document which he claimed indicated that he was still on parole

for his prior unrelated conviction at the time he was sentenced in the instant matter. Russell,

however, failed to present any proof that the instant sentence was ordered to run consecutive

to the sentence that was imposed in relation to his prior unrelated conviction. On January 25,

2013, the trial court denied Russell’s December 13, 2012 motion. Russell subsequently filed

a motion to correct error, which was denied by the trial court on March 13, 2013. Russell did

not appeal the trial court’s denial of his motion to correct error.

       On April 7, 2014, Russell, again by counsel, filed a third motion to correct erroneous

sentence. The April 7, 2014 motion was identical to the motion filed by Russell on

December 13, 2012. The trial court denied Russell’s third motion to correct an erroneous

sentence on May 30, 2014. This appeal follows.

                              DISCUSSION AND DECISION

       On appeal, Russell contends that the trial court erred in denying his April 17, 2014

motion to correct his allegedly erroneous sentence. The State, for its part, argues that the trial

court properly denied Russell’s April 17, 2014 motion because Russell’s challenge was

barred by the doctrine of res judicata. Specifically, the State argued that Russell’s challenge

was barred because the trial court had previously decided the precise issue presented in

Russell’s April 17, 2014 motion on two separate occasions before denying Russell’s current

motion. We agree with the State.

       The doctrine of res judicata prevents the repetitious litigation of that which is

essentially the same dispute. State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000).

                                                4
       Res judicata dictates that “a judgment rendered on the merits is an absolute bar
       to a subsequent action between the same parties or those in privity with them
       on the same claim or demand.” Gill v. Pollert, 810 N.E.2d 1050, 1057 (Ind.
       2004) (quoting Sullivan v. American Cas. Co., 605 N.E.2d 134, 137 (Ind.
       1992)). It “prevents the repetitious litigation of that which is essentially the
       same dispute.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)
       (citations omitted).

Smith v. State, 825 N.E.2d 783, 789 (Ind. 2005). An individual cannot escape the effect of

res judicata merely by using different language to phrase and issue and define an alleged

error. Holmes, 728 N.E.2d at 168.

       In the instant matter, Russell was found guilty of Class B felony burglary and of being

a habitual offender on November 9, 2005. He was subsequently sentenced to a term of

twenty years with respect to his Class B felony burglary conviction. His sentence was

enhanced by another twenty years by virtue of his status as a habitual offender. On August 4,

2011, Russell, by counsel, filed a motion to correct erroneous sentence, in which he claimed

that his sentence was erroneous pursuant to Indiana Code section 35-38-1-15 and the Indiana

Supreme Court’s opinion in Breaston. The trial court subsequently denied Russell’s motion.

       On December 13, 2012, Russell, again by counsel, filed a second motion to correct

erroneous sentence in which Russell again claimed that his sentence was erroneous under

Indiana Code section 35-38-1-15 and the Indiana Supreme Court’s opinion in Breaston.

Russell attached a document which he claimed indicated that he was still on parole for his

prior unrelated conviction at the time he was sentenced in the instant matter. Russell,

however, failed to present any proof that the instant sentence was ordered to run consecutive

to the sentence that was imposed in relation to his prior unrelated conviction. On January 25,

                                              5
2013, the trial court again denied Russell’s motion.

       On April 7, 2014, Russell, again by counsel, filed a third motion to correct erroneous

sentence. The April 7, 2014 motion was identical to the motion filed by Russell on

December 13, 2012. The trial court denied Russell’s third motion to correct an erroneous

sentence on May 30, 2014.

       The trial court had twice rejected the very claim raised in Russell’s April 17, 2014

motion. Russell’s repeated filing of a motion to correct an allegedly erroneous sentence

constitutes the type of repetitious litigation, i.e., a repeated re-hashing of exactly the same

argument or claim, that the doctrine of res judicata aims to prevent. Thus, under the doctrine

of res judicata, the trial court’s previous rulings on Russell’s repetitious motions, both of

which became final judgments, are an absolute bar to Russell again raising the claim at issue

in this appeal. See Smith, 825 N.E.2d at 789 (citing Gill, 810 N.E.2d at 1057). As such, we

conclude that the trial court did not err in denying Russell’s April 7, 2014 motion.

       Further, we observe that the Indiana Supreme Court has previously recognized that an

individual may avoid res judicata only if he has established any recognized ground for doing

so, noting that “[t]he bar of res judicata may sometimes give way when the initial decision

was ‘clearly erroneous and would work manifest injustice.’” Annes v. State, 789 N.E.2d 953,

954 (Ind. 2003) (quoting State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989)). However, upon

review of the facts and circumstances surrounding the instant matter, we conclude that

Russell has failed to establish that the trial court’s decision was clearly erroneous or would

result in manifest injustice. While Russell argues that the challenged sentence, which again

                                              6
included a twenty-year habitual offender enhancement, was improperly ordered to run

consecutive to an unrelated sentence which also included a habitual offender enhancement,

the record is devoid of proof that the sentence at issue was actually ordered to run

consecutive to the prior sentence. In addition, Russell has failed to present any argument or

evidence demonstrating that the application of res judicata to the instant matter would result

in manifest injustice. Russell, therefore, has failed to meet the standard for establishing that

the doctrine of res judicata should not be applied to the instant matter.

       Furthermore, even assuming that the doctrine of res judicata should not apply to the

instant matter, Russell’s challenge on appeal must still fail because his claim is not one that

can be adjudicated through a motion to correct erroneous sentence.

       [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) (stating that “[w]hen claims of

sentencing errors require consideration of matters outside the face of the sentencing

judgment, they are best addressed promptly on direct appeal and thereafter via post-

conviction relief proceedings where applicable. 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”).

       Russell does not claim that the sentence at issue in the instant matter is erroneous on

the face of the judgment. Rather, Russell’s claim is that the sentence is erroneous when

                                               7
considered together with an unrelated previous sentence. Because Russell’s claim would

require consideration of materials outside of the judgment imposing the sentence in question,

a motion to correct erroneous sentence was not a proper method for challenging Russell’s

sentence. See id. Instead, Russell should have challenged the sentence on direct appeal or in

his petition for post-conviction relief. Russell, however, did not do so. As such, we

conclude that Russell’s claim on appeal that the trial court erred in denying his motion to

correct an erroneous sentence is without merit.

       The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.




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