MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Dec 09 2015, 5:50 am
this Memorandum Decision shall not be
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
Robert J. Maxie                                         Gregory F. Zoeller
Pendleton, Indiana                                      Attorney General of Indiana

                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert J. Maxie,                                        December 9, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A04-1412-CR-580
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Jane Woodward
Appellee-Plaintiff.                                     Miller, Judge
                                                        Trial Court Cause No.
                                                        71D04-9512-CF-571



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015      Page 1 of 10
[1]   Robert J. Maxie, pro se, appeals the trial court’s denial of his motion to correct

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

      whether the trial court erred in denying his motion. We affirm.


                                      Facts and Procedural History

[2]   On December 5, 1995, the State charged Maxie with burglary as a class B

      felony and being an habitual offender. In January 1996, the State also charged

      Maxie with residential entry as a class D felony. In January 1997, the trial

      court sentenced Maxie as follows:

              Upon Count I, Burglary, the Court imposes a sentence of 12
              years to the Department of Corrections. On Count II,
              Residential Entry, the Court will impose a sentence of 2 years to
              the Department of Corrections to run concurrent to Count I. On
              Count III, the Habitual Offender, the Court will impose a
              sentence of 20 years to the Department of Corrections, to be
              consecutive to the burglary and residential entry, and consecutive
              to 94CF547. The total effective sentence is 32 years.


      Appellant’s Appendix at 13.


[3]   On direct appeal, Maxie argued that the trial court erred in instructing the jury,

      and this court affirmed. Maxie v. State, No. 71A03-9705-CR-171, slip op. at 2

      (Ind. Ct. App. February 19, 1998). In February 2007, Maxie filed an amended

      petition for post-conviction relief, and the post-conviction court denied his

      petition in July 2008. On appeal, this court affirmed the post-conviction court’s

      denial of Maxie’s petition. Maxie v. State, No. 71A05-0809-PC-560, slip op. at 2

      (Ind. Ct. App. May 20, 2009), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015   Page 2 of 10
[4]   On December 22, 2009, Maxie filed a Motion to Amend Erroneous Sentence. 1

      On January 25, 2010, the trial court denied Maxie’s motion. Maxie did not

      appeal the court’s order.


[5]   On August 13, 2014, Maxie, pro se, filed a motion to correct erroneous sentence

      arguing that his sentence was erroneous because the trial court erred “in

      exceeding its legislative authorization when it imposed Consecutive Habitual-

      Offender sentence enhancements at a single criminal trial.” Appellant’s

      Appendix at 21. In a memorandum attached to his motion, Maxie argued that

      the trial court improperly sentenced him “for the habitual offender Count III to

      run ‘Consecutively’ to . . . Count I, Burglary and Count II, Residential Entry . .

      . .” Id. at 24. He alleged that “to correct this matter the court would have to

      resentence [him] and order that the habitual-offender enhancement in this

      Cause No. 71d04-9512-CF-00571 be served ‘Concurrent’ to . . . count I and II.”

      Id. at 25. He also asserted that he has completely served his maximum fixed

      term sentence on Counts I and II, and that after parole revocation he was

      returned back to prison to serve out the remainder of his sentence for the

      habitual offender status “which at this moment is standing alone and can not be

      attached to a sentence that has been fully severed [sic], because the Court lack

      [sic] jurisdiction.” Id. at 26. He also asked that the court vacate his sentence on




      1
          The record does not contain a copy of this motion.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015   Page 3 of 10
      the habitual offender status. On October 23, 2014, the State filed a response to

      Maxie’s motion.


[6]   On November 25, 2014, the court entered an order which stated: “The Court

      having reviewed Defendant[’]s Motion and finding it alleges same claim as

      earlier raised by Defendant in December, 2009 and ruled upon by Court on

      January 25, 2010, Defendant’s Motion is denied.” Appellant’s Brief at 31.


                                                  Discussion

[7]   The issue is whether the trial court erred in denying Maxie’s motion to correct

      erroneous sentence. Maxie appears to argue that the trial court failed to specify

      the underlying felony to which the habitual offender enhancement applied and

      that the court erred when it found that the same claim was addressed earlier

      because it did not specify what issues he had raised in December 2009. He

      asserts that he did not appeal any motion to correct erroneous sentence and the

      doctrine of res judicata could not apply, and that he should have been paroled in

      2002 after completing his twelve-year sentence instead of serving time on the

      twenty-year habitual offender enhancement. He discusses his credit time

      classification and the actions of the Sheriff, states that the Department of

      Correction (“DOC”) should have certified his discharge papers for residential

      entry to the clerk of the committing trial court, that he is being forced to serve

      time beyond the statutory limit, and that the Reception Diagnostic Center

      lacked the subject matter jurisdiction and personal jurisdiction for his

      commitment to the custody of the DOC.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015   Page 4 of 10
[8]    The State argues that the trial court properly denied Maxie’s motion based

       upon res judicata and that Maxie has not provided a record showing that the

       ruling was erroneous. The State contends that his complaint about his sentence

       does not afford him any relief as the only remedy would be an amendment to

       the abstract of judgment and not a change in the amount of time that he must

       serve on the sentence. It states “given that the court imposed a 20-year

       enhancement for the habitual adjudication, it was always clear that the

       enhancement was intended to be attached to the burglary conviction, as the

       court could not have imposed a 20-year enhancement had the court intended it

       to be attached to the class D felony conviction.” Appellee’s Brief at 9-10. The

       State also asserts that to the extent Maxie discusses matters relating to his

       release on parole and the authority of the parole authorities to subsequently re-

       incarcerate him on this sentence after he violated parole, these are not matters

       that could be litigated through a motion to correct erroneous sentence as they

       require resort to matters beyond the judgment of conviction.


[9]    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.


[10]   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:



       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015   Page 5 of 10
               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.


[11]   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 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. 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

       strictly applied . . . .” Id.


[12]   With respect to the arguments regarding res judicata, the doctrine of res judicata

       prevents the repetitious litigation of that which is essentially the same dispute.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015   Page 6 of 10
       State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000), reh’g denied, cert. denied, 532

       U.S. 1067, 121 S. Ct. 2220 (2001).

               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 an issue

       and define an alleged error. Holmes, 728 N.E.2d at 168. A final trial court

       judgment is “entitled to equal force” when determining whether the doctrine of

       res judicata applies. Annes v. State, 789 N.E.2d 953, 954 (Ind. 2003). “The bar of

       res judicata may sometimes give way when the initial decision was ‘clearly

       erroneous and would work manifest injustice.’” Id. (quoting State v. Lewis, 543

       N.E.2d 1116, 1118 (Ind. 1989)).


[13]   The court denied Maxie’s December 22, 2009 Motion to Amend Erroneous

       Sentence on January 25, 2010, and specifically stated:

               The Court having reviewed the Motion, Response, finds trial
               Court did not err in sentencing Defendant to twelve years for his
               conviction for Burglary, a Class B felony, and concurrently to
               two years for residential entry, and having enhanced the sentence
               by twenty years for a total thirty-two year sentence. Court now
               denies said motion.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015   Page 7 of 10
       Appellant’s Appendix at 16. The record does not contain a copy of Maxie’s

       December 22, 2009 Motion to Amend Erroneous Sentence. As the appellant,

       Maxie bears the burden of presenting a record that is complete with respect to

       the issues raised on appeal. See Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998),

       reh’g denied. While the fact that Maxie did not include the December 22, 2009

       motion in his appendix does not result in waiver, 2 he nevertheless fails to assert

       on appeal that the allegations he raised in his December 2009 motion are not

       the same allegations he raised in his 2014 motion. Rather, he merely claims

       without citation to authority that the trial court improperly failed to state what

       issues he had raised in December 2009. Maxie does not argue that the

       application of res judicata would result in manifest injustice, and we cannot say

       that he has developed a cogent argument demonstrating that the trial court

       abused its discretion.


[14]   To the extent Maxie suggests that he should not serve the habitual offender

       enhancement because it was not properly attached to an underlying offense, we

       observe that generally the proper remedy for failing to attach an habitual

       offender enhancement is to remand to the trial court to correct the sentence by

       assigning the habitual offender enhancement. See McIntire v. State, 717 N.E.2d

       96, 102 (Ind. 1999) (holding that trial courts must impose the habitual offender

       enhancement upon only one of the convictions and must specify the conviction




       2
        Ind. Appellate Rule 49(B) provides that “[a]ny party’s failure to include any item in an Appendix shall not
       waive any issue or argument.”

       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015           Page 8 of 10
       to be so enhanced and remanding to the trial court to correct the sentence

       specifically by assigning the habitual offender enhancement). Here, the twenty-

       year enhancement could have been added to only Maxie’s conviction for the B

       felony.3 Any remand would not reduce Maxie’s aggregate sentence, and there

       is no manifest injustice under these circumstances.


[15]   With respect to Maxie’s arguments that he should have been paroled in 2002,

       and that the Reception Diagnostic Center lacked jurisdiction, and his discussion

       regarding credit time classification and the actions of the Sheriff, he has not

       developed a cogent argument, and any resolution of these issues would require

       consideration of factors outside of the face of the judgment. To address these

       claims 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 on these bases. 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




       3
         At the time of the sentencing, Ind. Code § 35-50-2-8(e) provided that the court “shall sentence a person
       found to be a habitual criminal to an additional fixed term that is not less than the presumptive sentence for
       the underlying offense nor more than three (3) times the presumptive sentence for the underlying offense.
       However, the additional sentence may not exceed thirty (30) years.” Accordingly, the permissible habitual
       offender enhancement for a class B felony is from ten to thirty years based upon the then presumptive ten-
       year sentence for a class B felony. See Ind. Code § 35-50-2-5 (1997). The permissible habitual offender
       enhancement for a class D felony is from one and one-half to four and one-half years based upon the
       presumptive one-and-one-half-year sentence for a class D felony. See Ind. Code § 35-50-2-7 (1997). Thus, the
       twenty-year enhancement could have been added to only Maxie’s conviction for the B felony.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015           Page 9 of 10
       correct erroneous sentence is available only to correct sentencing errors clear

       from the face of the judgment).


                                                   Conclusion

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

       erroneous sentence.


[17]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015   Page 10 of 10
