      MEMORANDUM DECISION
                                                                     Jul 31 2015, 9:38 am
      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 establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Kenneth George Wolfe                                     Gregory F. Zoeller
      Carlisle, Indiana                                        Attorney General of Indiana
                                                               Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kenneth George Wolfe,                                    July 31, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1504-CR-219
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Sheila A. Carlisle,
                                                               Judge
      Appellee-Plaintiff.                                      The Honorable Stanley E. Kroh,
                                                               Magistrate
                                                               Cause No. CR85-269C




      Kirsch, Judge.

[1]   Kenneth George Wolfe filed a motion to correct erroneous sentence,

      contending that the sentences for his five attempted murder convictions could

      not be served consecutively because the convictions arose from a single episode


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015      Page 1 of 8
      of criminal conduct pursuant to Indiana Code section 35-50-1-2, and attempted

      murder was not, at the time of sentencing, defined as a “crime of violence.”

      Wolfe appeals, pro se, contending that the trial court erred in denying his

      motion.1


[2]   We affirm.


                                   Facts and Procedural History
[3]   Following a jury trial, Wolfe was convicted of five counts of attempted murder,

      each as a Class A felony, and one count of carrying a handgun without a

      license, as a Class A misdemeanor, and was adjudicated a habitual offender.

      On July 8, 1986, Wolfe received an aggravated sentence of fifty years for each

      attempted murder conviction—one of which was enhanced by thirty years

      because of his habitual offender status—and a sentence of one year for the

      handgun violation, all sentences to be served consecutively. The Indiana

      Supreme Court affirmed Wolfe’s convictions and concluded that his 281-year

      sentence was not “manifestly unreasonable in light of the nature of the offense




      1
        Indiana Appellate Rule 46(A)(4) requires that an appellant’s brief contain a statement of issues, which
      “shall concisely and particularly describe each issue presented for review.” Wolfe has failed to set forth an
      issue statement; however, we proceed with the understanding that he is appealing the denial of his motion to
      correct erroneous sentence.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015                Page 2 of 8
      and the character of the offender.”2 Wolfe v. State, 562 N.E.2d 414, 417 (Ind.

      1990).


[4]   On March 4, 2015, Wolfe filed a motion to correct erroneous sentence, arguing:

               Counts I through VI were closely connected in time, place and
               circumstance, constituting a single episode of criminal conduct within
               the meaning of I.C. 35-50-1-2(b). I.C. 35-50-1-2(c) limits a trial court’s
               ability to impose consecutive sentences if the convictions are not
               “crimes of violence” and the convictions arise out of a single “episode of
               criminal conduct.” If both of these circumstances exist, then the total
               executed term is limited to the presumptive sentence of the next higher
               class of felony. Attempted murder was not classified as a crime of
               violence at the time that Wolfe committed his crimes [in 1985] . . .3
      Appellant’s App. at 13 (emphasis in original). At the time of sentencing, the next

      highest crime, murder, had a “presumptive” sentence of forty years. 4 Wolfe

      argued that “consecutive sentences for Attempted Murder violated the statute

      limiting consecutive sentences for crimes not classified as ‘crimes of violence’

      which occurred during a ‘single episode of criminal conduct.’” Id. at 15 (emphasis

      in original). He maintained that since Indiana Code section 35-50-1-2 limited

      his sentence to seventy years—forty for the attempted murder convictions plus a




      2
        Subsequent to Wolfe’s appeal, the standard for an appellate court’s review of a sentence changed from
      whether the sentence was manifestly unreasonable to whether the sentence was “inappropriate” in light of
      the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B).
      3
       It is not clear to which version of Indiana Code section 35-50-1-2 Wolfe is citing; however, it must be a
      version enacted after July 1, 1995—the date subsection (c) was added to the statute—and before July 1,
      2001—the date attempted murder was added as a crime of violence. See Pub. L. No. 304-1995, § 1; Pub. L.
      No. 228-2001, § 6.
      4
        The word “presumptive” was changed to “advisory” in April 2005. See Weaver v. State, 845 N.E.2d 1066,
      1070 (Ind. Ct. App. 2006) (legislature responded to Blakely v. Washington, 542 U.S. 296(2004) by amending
      sentencing statutes to replace “presumptive” with “advisory”), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015               Page 3 of 8
      thirty-year enhancement for the habitual offender finding—his sentence of 281

      years was erroneous on its face. Id.at 13.


[5]   The trial court denied Wolfe’s motion on March 10, 2015, stating:

              2. In Robinson v. State, 805 N.E.2d 783, 788 (Ind. 2004), the Indiana
              Supreme Court determined that “When a motion to correct sentence
              presents a claim that may be resolved by considering only the face of
              the judgment and the applicable statutory authority without reference
              to other matter [sic] such a motion may be expeditiously considered
              and corrections made without invoking post-conviction proceedings.”
              However, “[a]s 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. Petitioner has not followed the correct procedural
              path here.
              3. Defendant raises claims that go beyond the face of the sentencing
              order and judgment; these claims can only be addressed by post-
              conviction proceedings. If Defendant has previously litigated a PCR
              to final judgment in this cause he would be required to obtain
              permission from the Indiana Court of Appeals to file a successive PCR
              under the Indiana Rules for Post-Conviction Remedies.
      Id. at 26.


[6]   On March 27, 2015, Wolfe filed a motion to correct error regarding the denial

      of his motion to correct erroneous sentence. That same day, the trial court

      denied Wolfe’s motion to correct error. Id. at 28. Wolfe now appeals.


                                     Discussion and Decision
[7]   We begin by noting that, technically, this case comes to us as an appeal from

      the denial of a motion to correct error following the trial court’s denial of

      Wolfe’s motion to correct erroneous sentence. On appeal, however, Wolfe

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015   Page 4 of 8
      contends that the trial court erred in denying his motion to correct erroneous

      sentence. Because we reach the same conclusion regardless of the path, we

      follow Wolfe’s lead and address his claim that the trial court erred by denying

      his motion to correct erroneous sentence. We review a trial court’s decision on

      a motion to correct erroneous sentence for an abuse of discretion. Davis v. State,

      978 N.E.2d 470, 472 (Ind. Ct. App. 2012). 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. While we defer to the trial court’s factual

      determinations, we review legal conclusions de novo. Woodcox v. State, 30

      N.E.3d 748, 750 (Ind. Ct. App. 2015).


[8]   Our court has said that it is in the best interests of all concerned that a

      sentencing error be immediately discovered and corrected. Id. at 750-51. “In

      general, a motion to correct error under Indiana Trial Rule 59 or a direct appeal

      are the best options for remedying an erroneous sentence.” Id. at 751.

      “Thereafter, a petition for post-conviction relief may be filed on any claims that

      have been properly preserved.” Id. However, “Indiana law provides an

      alternate remedy to correct an erroneous sentence” pursuant to Indiana Code

      section 35-38-1-15, which provides in part that if a “convicted person is

      erroneously sentenced, the mistake does not render the sentence void. The




      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015   Page 5 of 8
       sentence shall be corrected after written notice is given to the convicted

       person.” Id. (citing I.C. § 35-38-1-15).5


[9]    Almost twenty-nine years after he was sentenced, Wolfe filed a motion to

       correct erroneous sentence, arguing that a later-enacted version of Indiana Code

       section 35-50-1-2 applied to limit his sentence. The trial court denied Wolfe’s

       motion to correct erroneous sentence, concluding that his “claims go beyond

       the face of the sentencing order,” and, as such, the motion to correct erroneous

       sentence was the “improper remedy.” Appellant’s App. at 26 (citing Robinson,

       805 N.E.2d at 788). We agree.


[10]   While a motion to correct erroneous sentence is available as an alternate

       remedy to cure a sentencing error, our Supreme Court has repeatedly cautioned

       that such motion is appropriate only when the sentence is “erroneous on its

       face.” Robinson, 805 N.E.2d at 786 (citations omitted). “Claims that require

       consideration of the proceedings before, during, or after trial may not be

       presented by way of a motion to correct sentence.” Id. at 787. Here, to succeed

       on his claim, Wolfe had to establish: (1) that the amended statute applied

       retroactively; and (2) that from the face of the judgment, it could be determined




       5
           Indiana Code section 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.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015                   Page 6 of 8
       that his crimes constituted a single episode of criminal conduct. Wolfe

       contends that “it is beyond dispute that [his] crimes were closely connected in

       time, place and circumstance, constituting a single ‘episode of criminal conduct’”

       within the meaning of that statute. Appellant’s App. at 8-9 (emphasis in

       original).


[11]   Assuming without deciding that Indiana Code section 35-50-1-2, as amended, is

       applicable to Wolfe’s sentence, his claim of erroneous sentence still fails for lack

       of proof that his crimes constituted a single episode of criminal conduct. “The

       term ‘episode of criminal conduct’ means offenses or a connected series of

       offenses that are closely related in time, place, and circumstance.” Slone v. State,

       11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (quoting Ind. Code § 35-50-1-2(b)).

               In determining whether multiple offenses constitute an episode of
               criminal conduct, the focus is on the timing of the offenses and the
               simultaneous and contemporaneous nature, if any, of the crimes.
               Additional guidance on the question can be obtained by considering
               whether the alleged conduct was so closely related in time, place, and
               circumstance that a complete account of one charge cannot be related
               without referring to the details of the other charge.
       Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008) (citations omitted)

       (internal quotation marks omitted). “Whether certain offenses constitute a

       single episode of criminal conduct is a fact-intensive inquiry to be determined

       by the trial court.” Slone, 11 N.E.3d at 972 (quoting Schlichter v. State, 779

       N.E.2d 1155, 1157 (Ind. 2002) (internal quotation marks omitted). A

       determination of whether crimes constitute a single episode of criminal




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-219| July 231 2015   Page 7 of 8
       conduct, therefore, cannot be reached without looking beyond the face of the

       judgment.


[12]   Wolfe’s claim that his crimes constitute a single episode of criminal conduct,

       therefore, was not properly presented by way of a motion to correct erroneous

       sentence. Accordingly, the trial court did not abuse its discretion by denying

       Wolfe’s motion. See Jackson v. State, 806 N.E.2d 773, 774 (Ind. 2004) (holding

       that trial court properly denied defendant’s motion to correct erroneous

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

       to correct sentencing errors clear from face of the judgment); Bauer v. State, 875

       N.E.2d 744, 746 (Ind. Ct. App. 2007) (noting that defendant’s claims required

       consideration of matters beyond face of the judgment; accordingly, they are not

       claims that can properly be presented in motion to correct erroneous sentence),

       trans. denied.


[13]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




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