MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Dec 10 2019, 8:54 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Lennard Coleman, Sr.                                     Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lennard Coleman, Sr.,                                    December 10, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-859
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-0503-FB-18



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019              Page 1 of 6
                                              Case Summary
[1]   Lennard Coleman, Sr. (“Coleman”) appeals the trial court’s denial of his

      motion to correct erroneous sentence. He presents the issue of whether the trial

      court abused its discretion by denying the motion.1 We affirm.



                                Facts and Procedural History
[2]   In 2005, Coleman was convicted of Robbery while armed with a Deadly

      Weapon, a Class B felony,2 and found to be a habitual offender.3 He was

      sentenced to twenty years imprisonment, enhanced by thirty years due to his

      status as a habitual offender. Coleman appealed, challenging his pretrial

      identification as improper and arguing that his sentence was inappropriate. His

      conviction and sentence were affirmed.


[3]   On April 26, 2011, Coleman filed a petition for post-conviction relief, which

      was later amended and denied. He filed a subsequent petition for post-

      conviction relief, which was dismissed with prejudice. His petition for

      permission to file a successive petition for post-conviction relief was denied.




      1
        Coleman also articulates an issue as to whether the sentencing order and Abstract of Judgment are
      inconsistent because one document omits some offenses that the other includes. The State responds that any
      inconsistency results from bifurcated proceedings whereby Coleman was convicted of robbery and, one year
      later, pled guilty to additional offenses (including Criminal Confinement and Theft) under the same cause
      number. Nonetheless, Coleman did not raise this issue in the trial court, and it is thus waived for appellate
      review. Marshall v. State, 621 N.E.2d 308, 314 (Ind. 1993).
      2
          Ind. Code § 35-42-5-1. The offense is now a Level 3 felony.
      3
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019                  Page 2 of 6
[4]   On April 22, 2015, Coleman filed a motion to correct erroneous sentence,

      challenging the sentencing court’s identification of aggravating and mitigating

      circumstances. The motion was denied on May 18, 2015. Coleman appealed,

      and a panel of this Court affirmed the denial. Coleman v. State, No. 79A05-

      1506-CR-635, slip op. at 1 (November 10, 2015).


[5]   On February 21, 2019, Coleman filed a second motion to correct erroneous

      sentence, challenging the habitual offender enhancement. (App. at 14.) On

      March 21, 2019, the trial court denied the motion:


              Defendant’s Motion to Correct Erroneous Sentence is DENIED
              for the reason that any error he now seeks to raise has been
              waived since [it was] not raised previously by his prior appeals
              and post-conviction matters. Furthermore, Defendant’s Motion
              relies upon a version of the Habitual Offender Statute that was
              not in effect at the time of his sentence in 2006.


      Appealed Order at 1. Coleman now appeals.



                                Discussion and Decision
[6]   We review the denial of a motion to correct erroneous sentence for an abuse of

      discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An abuse

      of discretion will be found only when the trial court’s decision is against the

      logic and effect of the facts and circumstances before it. Id. However, the trial

      court’s legal conclusions are reviewed under a de novo standard. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019   Page 3 of 6
[7]   An inmate who believes that he or she has been erroneously sentenced may file

      a motion to correct an erroneous sentence. Neff v. State, 888 N.E.2d 1249, 1250-

      51 (Ind. 2008). 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.


[8]   Motions made pursuant to Indiana Code Section 35-38-1-15 may only be used

      to attack a sentence that is “erroneous on its face.” Robinson v. State, 805

      N.E.2d 783, 786 (Ind. 2004). Alleged sentencing errors that require

      consideration of matters outside the face of the sentencing judgment can only

      be attacked by direct appeal or, when appropriate, petitions for post-conviction

      relief. Id. 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

      sentence.” Id.


[9]   Coleman argues that, under Indiana Code Section 35-50-2-8, he could not be

      adjudicated a habitual offender because one or more of his prior felony

      convictions was more than ten years old. The State argues that the motion to

      correct erroneous sentence is not a facial attack on the sentencing order and,

      thus, is not permissible under Robinson. We agree.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019   Page 4 of 6
[10]   Coleman’s sentence is not facially erroneous. He was sentenced to twenty

       years for his Class B felony robbery conviction and the sentence was enhanced

       by thirty years due to his habitual offender status. At the time Coleman was

       sentenced, the maximum term for a Class B felony was twenty years, with an

       advisory sentence of ten years. I.C. § 35-50-2-5(a).4 Under the habitual

       offender statute, Coleman’s sentence was subject to an enhancement of up to

       thirty years. I.C. § 35-50-2-8.5 Coleman has not shown that his fifty-year

       sentence is outside the statutory parameters. He argues that the State relied

       upon one or more stale predicate felonies.6 But resolution of this argument

       would require examination of matters outside the face of the sentencing order,

       in particular, the propriety of the prior felonies used to support the habitual

       offender adjudication. His argument is not properly before the court through a

       motion to correct erroneous sentence.




       4
         Coleman received the maximum sentence under Indiana Code Section 35-50-2-5(a), which provided: “A
       person who commits a Class B felony (for a crime committed before July 1, 2014) shall be imprisoned for a
       fixed term of between six (6) and twenty (20) years, with the advisory sentence being ten (10) years.”).
       5
         “The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less
       than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for
       the underlying offense. However, the additional sentence may not exceed thirty (30) years.” I.C. § 35-50-2-8
       (2006).
       6
         Coleman sought retroactive application of a change to the habitual offender sentencing statute. Effective in
       2013, several years after Coleman’s conviction and sentencing, Indiana Code Section 35-50-2-8 was amended
       to include a ten-year limitation for some predicate offenses. The time period for that limitation is calculated
       with reference to release from imprisonment, probation, or parole, whichever is latest. In Cox v. State, 38
       N.E.3d 702, 704 (Ind. Ct. App. 2015), a panel of this Court held that the version of the habitual offender
       statute in effect at the time of the offense is the applicable version.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019                     Page 5 of 6
                                               Conclusion
[11]   The trial court properly denied Coleman’s motion to correct erroneous

       sentence.


[12]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019   Page 6 of 6
