                                                                                         FILED
                                                                                     Feb 15 2017, 9:24 am

                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Lisa M. Johnson                                            Curtis T. Hill, Jr.
      Brownsburg, Indiana                                        Attorney General of Indiana
                                                                 Eric P. Babbs
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Harry Hobbs,                                              February 15, 2017

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1609-CR-1983
              v.                                                Appeal from the Marion Superior
                                                                Court.
                                                                The Honorable Lisa F. Borges,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       The Honorable Anne Flannelly,
                                                                Magistrate.
                                                                Trial Court Cause No. 49G04-9309-
                                                                CF-119274



      Barteau, Senior Judge


                                       Statement of the Case
[1]   Harry Hobbs appeals the sentence the trial court imposed on remand following

      the Court’s decision that he was entitled to partial relief on his motion to correct

      erroneous sentence. We affirm.



      Court of Appeals of Indiana | Opinion 49A02-1609-CR-1983 | February 15, 2017                   Page 1 of 7
                                                      Issue
[2]   Hobbs raises one issue, which we restate as: whether his sentence as corrected

      on remand violates statutory limits and must be reduced.


                                Facts and Procedural History
[3]   The facts as stated in a prior appeal are as follows:

              On November 2, 1992, Hobbs committed the crimes from which
              this appeal stems. On September 15, 1993, the State charged him
              with Count 1, class A felony rape; Count 2, class A felony
              criminal deviate conduct; Count 3, class B felony burglary; and
              Count 4, class A felony criminal deviate conduct. A jury found
              Hobbs guilty as charged. On July 12, 1994, the trial court
              sentenced Hobbs to fifty years for Count 1, thirty years for Count
              2, twenty years for Count 3, and fifty years for Count 4. The
              court ordered Counts 1 and 2 to run concurrent to each other and
              Counts 3 and 4 to run consecutive to each other and to Count 1,
              for an aggregate sentence of 120 years. Appellant’s App. at 9, 87.
              Hobbs appealed his convictions and sentence. He argued that
              the evidence was insufficient to support his convictions, that his
              convictions violated double jeopardy principles, and that his
              sentence was manifestly unreasonable. This Court affirmed.
              Hobbs v. State, No. 49A02-9410-CR-614 (Ind. Ct. App. May 25,
              1995).
              On March 27, 2015, Hobbs filed a motion to correct erroneous
              sentence pursuant to Indiana Code Section 35-38-1-15. He
              argued that his sentence violated Indiana Code Section 35-50-2-4,
              as amended July 1, 1994, because the new version reduced the
              presumptive sentence for a class A felony from thirty years to
              twenty-five years. He also argued that his aggregate sentence
              exceeded the limitation in Indiana Code Section 35-50-1-2, as
              amended effective July 1, 1994, on consecutive sentences arising
              from an episode of criminal conduct. The trial court found that

      Court of Appeals of Indiana | Opinion 49A02-1609-CR-1983 | February 15, 2017   Page 2 of 7
              Hobbs’s sentence was not facially erroneous and denied his
              motion.
      Hobbs v. State, No. 49A04-1505-CR-314, slip op. at 2-3 (Ind. Ct. App. Dec. 21,

      2015), trans. denied (Hobbs II).


[4]   Hobbs appealed the denial of his motion to correct erroneous sentence. A panel

      of this Court determined that Hobbs’s fifty-year sentences violated statutory

      maximums and remanded with instructions to reduce the sentences to forty-five

      years each. Hobbs claimed that his aggregate sentence should be reduced to

      110 years, but the Court rejected that argument, stating:

              The revision of his fifty-year sentences does not require that his
              120-year aggregate sentence be revised because his aggregate
              sentence is not facially erroneous. Therefore, when the trial
              court revises Hobbs’s fifty-year sentences to forty-five years, it
              may rearrange Hobbs’s sentences to effectuate a 120-year
              aggregate sentence. See Wilson v. State, 5 N.E.3d 759, 765 (Ind.
              2014) (concluding that where manner of imposing multiple
              sentences violated statutory authority but fifty-year aggregate
              sentence was in compliance with applicable statutes, proper
              remedy was to remand for trial court to arrange individual
              sentences so as not to exceed fifty years).

      Id. at 6. Hobbs also argued that his sentence was erroneous because his offenses

      constituted a single episode of criminal conduct, and, as a result, his aggregate

      sentence was subject to a statutory cap. The Court declined to address that

      argument, determining it was not appropriately raised in a motion to correct

      erroneous sentence.


[5]   On remand, the court held a hearing. After the hearing, the court reduced

      Hobbs’s fifty-year sentences to forty-five years each. In addition, the court

      Court of Appeals of Indiana | Opinion 49A02-1609-CR-1983 | February 15, 2017   Page 3 of 7
      imposed sentences of fifteen years each on counts two and three. Finally, the

      court ordered that Hobbs would serve his sentences on all four counts

      consecutively, for a total sentence of 120 years. This appeal followed.


                                    Discussion and Decision
[6]   Hobbs argues that his sentence must be reduced because his offenses constituted

      a single episode of criminal conduct and, as a result, his aggregate sentence

      must be reduced. The State claims Hobbs’s argument is inappropriate in an

      appeal involving a motion to correct erroneous sentence. We agree with the

      State.


[7]   In Hobbs II, the Court remanded to the trial court to correct a specific sentencing

      error that was plain on the face of the sentencing order. The trial court

      corrected the error. The Court did not authorize plenary resentencing, and the

      trial court did not impose plenary resentencing. As a result, the parties’

      arguments in this appeal remain subject to the limits imposed by statute and our

      Supreme Court on motions to correct erroneous sentence.


[8]   We review a ruling on a motion to correct erroneous sentence only for an abuse

      of discretion. Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct. App. 2015). We

      will find an abuse of discretion if the trial court’s decision is against the logic

      and effect of the facts and circumstances before it. Id.


[9]   The governing statute, Indiana Code section 35-38-1-15 (1983), provides:

               If the convicted person is erroneously sentenced, the mistake
               does not render the sentence void. The sentence shall be

      Court of Appeals of Indiana | Opinion 49A02-1609-CR-1983 | February 15, 2017   Page 4 of 7
               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.

[10]   As our Supreme Court has stated:

               When an error related to sentencing occurs, it is in the best
               interests of all concerned that it be immediately discovered and
               corrected. Other than an immediate motion to correct sentence,
               such errors are best presented to the trial court by the optional
               motion to correct error under Indiana Trial Rule 59, or upon a
               direct appeal from the final judgment of the trial court pursuant
               to Indiana Appellate Rule 9(A). Thereafter, for claims not
               waived for failure to raise them by direct appeal, a defendant
               may seek recourse under Indiana Post-Conviction Rule 1, §
               1(a)(3) by claiming ‘that the sentence exceeds the maximum
               authorized by law, or is otherwise erroneous.’ As noted above,
               however, we have recognized the statutory motion to correct
               sentence as an alternate remedy.

       Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004) (citations and footnote

       omitted).


[11]   Use of a statutory motion to correct sentence is “narrowly confined” to claims

       apparent from the face of the sentencing judgment. Id. at 787. As to sentencing

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

       remedy. Id. A sentencing error that requires examination of matters beyond

       the face of the sentencing judgment is better suited for resolution on direct

       appeal or through post-conviction relief. Woodcox, 30 N.E.3d at 751.




       Court of Appeals of Indiana | Opinion 49A02-1609-CR-1983 | February 15, 2017   Page 5 of 7
[12]   In Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012), the defendant filed a

       motion to correct erroneous sentence claiming, among other arguments, that

       his aggregate sentence violated a statute because his offenses constituted an

       episode of criminal conduct. The trial court denied his motion. On appeal, the

       Court determined that his claim was inappropriate in the context of a motion to

       correct erroneous sentence because the Court could not address the claim

       without considering “whether Davis’s offenses were closely related in time,

       place, and circumstance and the specific facts underlying each count.” Id. at

       474.


[13]   In the current case, as in Davis, we cannot resolve Hobbs’s claim without

       looking past the face of the sentencing order to the evidence presented at

       Hobbs’s original trial. In fact, Hobbs encourages the Court to consider the

       evidence, providing citations to the transcript. Appellant’s Br. p. 13. We agree

       with the Hobbs II court’s conclusion that Hobbs’s arguments related to an

       episode of criminal conduct may not be raised in a motion to correct erroneous

       sentence.


[14]   Hobbs claims his sentence is fundamentally erroneous and, as a result, his

       claims must be addressed in this appeal. The cases he cites are distinguishable.

       In Lane v. State, 727 N.E.2d 454 (Ind. Ct. App. 2000), the defendant appealed

       from resentencing following remand from a direct appeal. In Niece v. State, 456

       N.E.2d 1081 (Ind. Ct. App. 1983), the defendant pursued a direct appeal

       following the trial court’s ruling on a motion to correct error. By contrast, in

       this case the trial court corrected a limited sentencing error on remand in

       Court of Appeals of Indiana | Opinion 49A02-1609-CR-1983 | February 15, 2017   Page 6 of 7
       relation to a motion to correct erroneous sentence. The holdings in Lane and

       Niece do not compel a conclusion that the trial court or this Court is obligated to

       consider all of Hobbs’s sentencing claims regardless of whether they are

       appropriate for a motion to correct erroneous sentence.


                                                 Conclusion
[15]   For the reasons stated above, we affirm the judgment of the trial court.


[16]   Affirmed.


       Riley, J., and Barnes, J., concur.




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