MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Apr 10 2017, 10:00 am
this Memorandum Decision shall not be
                                                                                 CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
court except for the purpose of establishing                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chris M. Teagle                                           Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General

Zaki M. Ali                                               Matthew B. MacKenzie
Anderson, Indiana                                         Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Micheau,                                           April 10, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          38A02-1606-PC-1356
        v.                                                Appeal from the Jay Circuit Court
                                                          The Honorable Patrick R. Miller,
State of Indiana,                                         Special Judge
Appellee-Plaintiff                                        Trial Court Cause No.
                                                          38C01-0911-PC-05



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 38A02-1606-PC-1356 | April 10, 2017                Page 1 of 5
                                             Case Summary
[1]   Robert Micheau appeals the remedy chosen by the trial court when it granted

      his motion to correct erroneous sentence. Concluding that the trial court erred

      in granting Micheau’s motion to correct erroneous sentence in the first place,

      we vacate the trial court’s judgment in its entirety and remand with instructions

      to reinstate his convictions and sentences as they previously stood.


                                  Facts and Procedural History
[2]   Following a jury trial, Micheau was convicted of count 1, class B felony dealing

      in methamphetamine, count 2, class D felony possession of methamphetamine,

      count 3, class D felony dealing in a sawed-off shotgun, count 4, class A

      misdemeanor possession of marijuana, count 5, class C felony possession of

      chemical reagents or precursors with intent to manufacture a controlled

      substance, and count 6, class A felony attempted dealing in methamphetamine.

      The trial court sentenced Micheau to eighteen years for count 1, enhanced by

      ten years due to the possession of the sawed-off shotgun, three years for count

      2, three years for count 3, one year for count 4, six years for count 5, and forty

      years for count 6, enhanced by ten years due to the possession of the sawed-off

      shotgun. The trial court ordered that the sentences be served concurrently for an

      aggregate sentence of fifty years.


[3]   Micheau appealed, and another panel of this Court affirmed his convictions and

      sentences for counts 1, 3, 4 and 6, and vacated his convictions and sentences for

      counts 2 and 5 on double jeopardy grounds. See Micheau v. State, 893 N.E.2d


      Court of Appeals of Indiana | Memorandum Decision 38A02-1606-PC-1356 | April 10, 2017   Page 2 of 5
      1053, 1067 (Ind. Ct. App. 2008), trans. denied (2009). Micheau filed a petition

      for postconviction relief in November 2009. The postconviction court denied

      relief in part and granted relief in part in November 2012. Specifically, the

      postconviction court modified Micheau’s conviction on count 6 to a class B

      felony, vacated the sentence enhancement, and resentenced him to twenty years

      on that count, to be served concurrently with the remaining sentences on counts

      1, 3, and 4, for an aggregate sentence of twenty-eight years.


[4]   In June 2015, Micheau sought permission to file a successive petition for

      postconviction relief which was denied by this Court. Thereafter, in October

      2015, Micheau filed a motion to correct erroneous sentence arguing that his

      conviction for count 3, class D felony dealing in a sawed-off shotgun, and his

      ten-year sentence enhancement on count 1 for possessing the same sawed-off

      shotgun, violated double jeopardy principles. The trial court denied the

      motion. Micheau filed a motion to correct error and, following a hearing, the

      trial court granted the motion to correct erroneous sentence and vacated

      Micheau’s conviction and three-year sentence for count 3.


[5]   Thereafter, Micheau filed a second motion to correct error challenging the trial

      court’s chosen remedy on his motion to correct erroneous sentence.

      Specifically, he asserted a new claim that he was entitled to a bifurcated trial on

      the sentence enhancement for count 1 pursuant to Indiana Code Section 35-50-

      2-13, and that because he did not receive a separate trial, he was entitled to have

      the ten-year enhancement vacated rather than having his conviction and three-



      Court of Appeals of Indiana | Memorandum Decision 38A02-1606-PC-1356 | April 10, 2017   Page 3 of 5
      year sentence for count 3 vacated. The trial court subsequently denied the

      motion. This appeal ensued.


                                     Discussion and Decision
[6]   Micheau appeals the trial court’s ruling on his motion to correct erroneous

      sentence. Our supreme court has held that

              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 a trial may not be presented by way of a motion to correct
              sentence.


      Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Indeed, the court has

      “repeatedly cautioned” that a motion to correct erroneous sentence is an

      available remedy only when a sentence is erroneous on its face, and such

      motion must be “narrowly confined” and “strictly applied” to claims apparent

      from the face of the sentencing judgment. Id. at 787-88. “As to sentencing

      claims not facially apparent, the motion to correct sentence is an improper

      remedy. Such claims may be raised only on direct appeal and, where

      appropriate, by post-conviction proceedings.” Id.


[7]   Here, in his motion to correct erroneous sentence, Micheau argued that his

      conviction for count 3 and his sentence enhancement on count 1 violated

      double jeopardy principles. Such a claim is clearly beyond the purview of a

      motion to correct erroneous sentence, as it requires consideration of matters


      Court of Appeals of Indiana | Memorandum Decision 38A02-1606-PC-1356 | April 10, 2017   Page 4 of 5
      outside the face of the sentencing judgment. In short, a double jeopardy claim

      does not meet the “erroneous on its face” standard. See id. at 787. Because

      Micheau’s claim was improperly raised by a motion to correct erroneous

      sentence, it was error for the trial court to consider the merits of his double

      jeopardy claim and to grant the motion to correct erroneous sentence on that

      basis. Accordingly, we vacate the trial court’s judgment in its entirety and

      remand with instructions to reinstate Micheau’s convictions and sentences as

      they previously stood.


[8]   Vacated and remanded.


      Baker, J., and Barnes, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 38A02-1606-PC-1356 | April 10, 2017   Page 5 of 5
