MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Dec 13 2016, 8:43 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      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.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Michael J. Williams                                     Gregory F. Zoeller
Westville, Indiana                                      Attorney General
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Williams,                                       December 13, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A05-1512-CR-2344
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable Evan S. Roberts,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        20D01-1401-FB-9



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2344 | December 13, 2016      Page 1 of 6
                                Case Summary and Issue
[1]   On April 27, 2015, Michael Williams pleaded guilty to unlawful possession of a

      firearm by a serious violent felon, a Class B felony, and possession of

      marijuana, a Class D felony, pursuant to a plea agreement providing for a

      sentence capped at sixteen years executed. The trial court accepted the plea

      agreement, entered judgment of conviction, and sentenced Williams to twenty

      years in the Indiana Department of Correction, with six years suspended to

      probation. Williams then filed a motion to correct erroneous sentence, which

      the trial court denied. He now pro se appeals the trial court’s denial of his

      motion, raising a single issue for our review, which we restate as whether the

      trial court abused its discretion in denying his motion to correct an erroneous

      sentence. Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   On January 13, 2014, law enforcement attempted to stop a vehicle driven by

      Williams. Williams refused to pull over and a chase ensued. During the

      pursuit, Williams threw a bag of marijuana out of the vehicle’s window. Once

      the chase ended, law enforcement discovered a loaded shotgun in the vehicle.


[3]   The State charged Williams with unlawful possession of a firearm by a serious

      violent felon, a Class B felony (“Count I”); resisting law enforcement, a Class D

      felony; possession of a controlled substance, a Class D felony; and possession of

      marijuana, a Class D felony (“Count IV”). Thereafter, Williams agreed to


      Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2344 | December 13, 2016   Page 2 of 6
      plead guilty to Counts I and IV in exchange for the State dismissing the

      remaining charges. Specifically, the terms and conditions of the agreement

      provided Williams would serve “sixteen year executed cap . . . suspend two” on

      Count I. Appellant’s Appendix at 14. As to Count IV, the agreement provided

      Williams would serve an executed term of three years, to be served concurrently

      with Count I. The plea agreement also provided, “[B]y pleading guilty under

      this agreement, [Williams] knowingly, intelligently, and voluntarily waives his

      right to challenge the sentence on the basis that it is erroneous . . . .” Id. at 17.


[4]   At the change of plea hearing, Williams entered a guilty plea and the trial court

      took the matter under advisement. On July 20, 2015, the trial court sentenced

      Williams to twenty years in the Department of Correction on Count I, with

      fourteen years executed and six years suspended to probation. As to Count IV,

      the trial court sentenced Williams to three years in the Department of

      Correction, to be served concurrently with Count I.


[5]   On November 23, 2015, Williams filed a pro se motion to correct erroneous

      sentence, arguing his sentence exceeded the cap set forth in the plea agreement.

      The trial court denied Williams’ motion and this appeal ensued.



                                Discussion and Decision
[6]   Williams argues the trial court abused its discretion in sentencing him in excess

      of the cap agreed to in the plea agreement. The State counters the trial court




      Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2344 | December 13, 2016   Page 3 of 6
      properly denied his motion because a motion to correct erroneous sentence is

      an improper vehicle to raise such an argument. We agree with the State.


[7]   We review a decision on a motion to correct erroneous sentence for an abuse of

      discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010). 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.


[8]   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.


      The purpose of this statute “is to provide prompt, direct access to an

      uncomplicated legal process for correcting the occasional erroneous or illegal

      sentence.” Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (citation omitted).

      A motion to correct erroneous sentence is appropriate only when the sentencing

      error is “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 trial may not be presented by way of a motion to correct

      sentence.” Id. at 787. Sentencing claims not facially apparent “may be raised

      only on direct appeal and, where appropriate, by post-conviction

      proceedings.” Id. “Use of the statutory motion to correct sentence should thus

      Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2344 | December 13, 2016   Page 4 of 6
      be narrowly confined to claims apparent from the face of the sentencing

      judgment, and the ‘facially erroneous’ prerequisite should . . . be strictly applied

      . . . .” Id.


[9]   Here, Williams argues the plea agreement provided he would serve a maximum

      of sixteen years executed and two years of probation, totaling eighteen years. 1

      Therefore, he contends the trial court sentenced him in excess of the cap when

      it sentenced him to fourteen years executed and six years of probation, totaling

      twenty years. Although we note there may be some merit to Williams’

      argument, the State is correct in asserting Williams’ argument is a request for us

      to consider information, i.e. the plea agreement, beyond the face of the

      sentencing order.2 Therefore, a motion to correct erroneous sentence is an

      improper vehicle for Williams’ claim and such a claim is properly asserted on

      direct appeal or in post-conviction proceedings. 3 We conclude the trial court




      1
          We note the State and Williams differ in their interpretation of the language in the plea agreement.
      2
        The State also argues Williams has waived this claim because, by entering into the plea agreement,
      Williams understood he could not seek an appeal on the basis his sentence is erroneous. Although not
      necessary for the purposes of this appeal, we express concern that such a provision could bar a defendant
      from seeking relief from a legally erroneous sentence. As noted above, a motion to correct erroneous
      sentence allows courts to examine only the face of the sentencing order for obvious error. We are therefore
      hard pressed to believe a defendant can consciously waive such a claim where the sentencing order, without
      any fault attributed to the defendant, may contain a prejudicial defect of which the defendant would be
      unaware when entering the plea agreement.
      3
        Williams also argues the trial court erred in imposing costs, fees, fines, and certain conditions of probation
      because they were not a part of the plea agreement. We note the trial court entered its final judgment
      sentencing Williams on July 20, 2015. Williams did not directly appeal this final judgment or file a motion
      to correct error within thirty days. See Dillman v. State, 16 N.E.3d 445, 447 (Ind. Ct. App. 2014) (noting a
      defendant who challenges the imposition of fees and costs was required to file either a motion to correct error
      or a notice of appeal within thirty days pursuant to Indiana Appellate Rule 9 in order to preserve the claim on
      appeal). In addition, we are not persuaded Williams could revive the claim in a motion to correct erroneous

      Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2344 | December 13, 2016              Page 5 of 6
       did not abuse its discretion in denying Williams’ motion to correct erroneous

       sentence.



                                                 Conclusion
[10]   The trial court did not abuse its discretion in denying Williams’ motion to

       correct erroneous sentence. Accordingly, we affirm.


[11]   Affirmed.


       Mathias, J., and Brown, J., concur.




       sentence. Even assuming, however, Williams could revive his claim, Williams did not raise this claim in his
       motion. For these reasons, Williams’ argument fails.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2344 | December 13, 2016         Page 6 of 6
