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:

PHILIP GREGORY YEARY                            GREGORY F. ZOELLER
Greencastle, Indiana                            Attorney General of Indiana

                                                RICHARD C. WEBSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana
                                                                              FILED
                                                                          Feb 22 2012, 9:16 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                  CLERK
                                                                                of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




PHILIP GREGORY YEARY,                           )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 78A01-1108-CR-388
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE SWITZERLAND CIRCUIT COURT
                         The Honorable Fred H. Hoying, Special Judge
                               Cause No. 78C01-0902-FB-613



                                    February 22, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       Appellant-defendant Philip Yeary appeals the trial court’s denial of his motion to

correct erroneous sentence. Yeary essentially argues the trial court abused its discretion

when it denied his motion to correct erroneous sentence. Concluding that Yeary may not

challenge his sentence through a motion to correct erroneous sentence, we affirm the

judgment of the trial court.

                                          FACTS

       Following a jury trial, Yeary was found guilty of nine separate criminal acts,

including criminal confinement, intimidation, pointing a firearm, illegal possession of a

handgun, and criminal recklessness. At the sentencing hearing, the trial court identified

the fact that the offenses were committed in front of children who were under the age of

eighteen years old as an aggravating factor. It also identified Yeary’s lack of a criminal

history and the hardship that imprisonment would cause his children as mitigating

circumstances but determined that those mitigating factors did not warrant a reduced

sentence. Concluding that four of the counts arose from the same episode of criminal

conduct, the trial court merged those counts into a single count of criminal confinement,

as a class B felony, and sentenced Yeary to ten years. Similarly, the trial court found the

five remaining counts were for another episode of criminal conduct, and it merged those

counts into a single count of criminal confinement as a class B felony, and entered a ten-

year sentence for that offense. The trial court ordered that Yeary’s sentences be served

consecutively, for a total of twenty years.



                                              2
       On direct appeal, Yeary argued that his sentence was inappropriate in light of his

character and the nature of his offense. Yeary v. State, Cause No. 78A01-0706-CR-

00282 slip op. 23-24 (Ind. Ct. App. March 11, 2008), trans. denied. A panel of this court

found that his sentence was not inappropriate and affirmed. Id.

       On July 8, 2011, Yeary filed a motion to correct erroneous sentence alleging that

the sole aggravating circumstance found by the trial court was invalid as a matter of law.

On August 3, 2011, the trial court denied the motion, concluding that a panel of this court

had already decided on direct appeal the issue raised in the motion to correct error.

Yeary now appeals.

                            DECISION AND DISCUSSION

       Yeary argues that the trial court abused its discretion when it denied his motion to

correct erroneous. Specifically, he argues that the trial court considered an inappropriate

factor and should have ordered a lesser sentence.

       An inmate may only file a motion to correct erroneous sentence to address a

sentence that is illegal and thus “erroneous on its face.” Robinson v. State. 805 N.E.2d

783, 786 (Ind. 2004)). As for sentencing claims that are not facially apparent, the motion

to correct sentence is an improper remedy. Id. at 787. Thus, Yeary may not challenge

his sentence through a motion to correct erroneous sentence.               Moreover, the

appropriateness of Yeary’s sentence was already addressed on direct appeal. Slip op. at

23-24. Thus, Yeary’s motion is barred under the doctrine of res judicata. See Holt v.



                                            3
State, 656 N.E.2d 495, 496 (Ind. Ct. App. 1995) (holding that “issues which have been

raised and adjudicated on direct appeal are res judicata”).

       The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.




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