Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                       Oct 22 2014, 10:26 am
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:

MICHAEL HUFFMAN                                    GREGORY F. ZOELLER
Pendleton, Indiana                                 Attorney General of Indiana

                                                   CHANDRA K. HEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL HUFFMAN,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 48A02-1308-CR-731
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Dennis D. Carroll, Judge
                             Cause No. 48D01-0608-FB-245


                                        October 22, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Senior Judge
                              STATEMENT OF THE CASE

       Michael Huffman appeals from the trial court’s order denying his motion to correct

erroneous sentence. Concluding that the trial court did not err by denying Huffman’s

request, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       Huffman was charged with aggravated battery as a Class B felony and invasion of

privacy as a Class A misdemeanor in August 2006. Huffman and the State entered into a

plea agreement providing that in exchange for Huffman’s guilty plea the State would agree

that Huffman’s sentence would be left to the trial court’s discretion with a ten-year cap on

any executed portion of the sentence. The trial court held a guilty plea hearing, after which

the plea was taken under advisement. On April 3, 2007, the trial court accepted Huffman’s

guilty plea and sentenced him to a term of eighteen years with eight years suspended to

probation for the aggravated battery conviction and one year for the invasion of privacy

conviction, to be served concurrently in the Department of Correction.

       On November 14, 2007, Huffman filed a petition for post-conviction relief, which

was denied by the post-conviction court. We affirmed the post-conviction court’s denial

of relief in a memorandum decision. See Huffman v. State, No. 48A02-1003-PC-421 (Ind.

Ct. App. Feb. 11, 2011).

       On June 12, 2013, Huffman filed a motion to correct erroneous sentence, which was

denied by the trial court on the same day. On June 26, 2013, Huffman filed a motion to

correct error from the trial court’s decision. The chronological case summary does not

indicate the disposition of that motion; however, that motion would have been deemed

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denied by operation of Indiana Trial Rule 53.3(A) on August 12, 2013. On August 8, 2013,

Huffman filed a second motion to correct erroneous sentence, which was denied by the

trial court on August 12, 2013. Huffman filed his notice of appeal on August 23, 2013.

         The State filed an emergency verified motion to dismiss the appeal on October 9,

2013. This Court held that motion in abeyance for disposition by the writing panel and

entered an order directing the State to file an appellee’s brief in the matter. Once the matter

was fully briefed with conforming submissions, the matter was transmitted to the writing

panel of this Court for disposition. Huffman now appeals.

                              DISCUSSION AND DECISION

         In each of Huffman’s motions he presented arguments, seeking essentially the same

relief, contesting the trial court’s imposition of restitution as part of his sentence. Because

of the potentially dispositive nature of the State’s motion to dismiss, we address that issue

first.

         The State contends that Huffman’s appeal is barred because it was untimely filed,

arguing that Huffman’s motions were repetitive motions and that he failed to appeal from

the first of those motions. The first motion to correct erroneous sentence was filed on June

12, 2013 and was denied that same day. The record does not reflect the disposition of

Huffman’s June 26, 2013, motion to correct error. Nonetheless, Huffman’s motion to

correct error would have been deemed denied on August 12, 2013, and he had thirty days

in which to file his notice of appeal from that ruling. Ind. Trial Rule 53.3(A) (“Any appeal

shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30)



                                              3
days after the Motion to Correct Error is deemed denied.”). Huffman’s notice of appeal

was filed on August 23, 2013.

       We agree that in general, repetitive motions do not extend a party’s deadline for

filing a notice of appeal. Ind. Trial Rule 53.4(A). Without determining what impact, if

any, the filing and denial of Huffman’s subsequent motion to correct erroneous sentence

had on the calculation of time for perfecting his appeal, we conclude that Huffman’s notice

of appeal was timely filed after his June 26, 2013, motion to correct error was deemed

denied.

       Turning to the merits of Huffman’s appeal, we conclude that his assertion that the

trial court erred by imposing the restitution requirement in the first place, and by failing to

correct that sentencing error upon Huffman’s request, is unpersuasive for a number of

reasons. Part of Huffman’s negotiated plea agreement provided that he waived any right

to challenge his sentence under Indiana Appellate Rule 7(B) or Indiana Code section 35-

38-1-15 (1983) (correction of an erroneous sentence). Appellant’s App. at 200. “[A]

defendant may waive the right to appellate review of his sentence as part of a written plea

agreement.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). “Absent due process concerns

to the contrary, when a defendant explicitly agrees to a particular sentence or a specific

method of imposition of sentences, whether or not the sentence or method is authorized by

the law, he cannot later appeal such sentence on the ground that it is illegal.” Crider v.

State, 984 N.E.2d 618, 625 (Ind. 2013). Thus, it appears that Huffman has explicitly agreed

to waive his right to challenge his sentence through Indiana Appellate Rule 7(B) and

Indiana Code section 35-38-1-15.

                                              4
         Additionally, during the sentencing hearing, Huffman expressed his remorse for his

offense and stated that he wished to help the victim with payment of her medical bills,

which totaled more than $200,000. Huffman’s attorney also acknowledged Huffman’s

responsibility to assist the victim of Huffman’s crime with the payment of her medical

bills.   Huffman and his counsel agreed to resolve Huffman’s contribution toward

satisfaction of the victim’s medical bills by referring the matter to the local victim offender

reconciliation program. The trial court stated on the record, without objection, that the

matter of restitution would be referred because there was no way to determine Huffman’s

ability to pay and the amount of restitution was not finalized, and solicited other options

from the parties. No other options were presented and there was no challenge made to the

trial court’s decision.

         To the extent that Huffman argues that the trial court’s decision to require him to

pay restitution is erroneous, his argument is precluded by the doctrine of invited error.

“Under this doctrine, ‘a party may not take advantage of an error that [he] commits, invites,

or which is the natural consequence of [his] own neglect or misconduct.’” Wright v. State,

828 N.E.2d 904, 907 (Ind. 2005). After voluntarily offering and agreeing to help the victim

by paying restitution for her medical bills and agreeing with the trial court’s disposition,

Huffman may not now take advantage of that error, if any, on appeal to achieve a

reversal.

         Furthermore, “[a] petition for post-conviction relief, not use of a motion to correct

erroneous sentence, is the preferred procedure for presenting a sentencing error.” Funk v.

State, 714 N.E.2d 746, 748-49 (Ind. Ct. App. 1999). “[A] motion to correct erroneous

                                               5
sentence may be used to correct those errors ‘where the sentence is erroneous on its face.’”

Id. at 749. “A facially defective sentence is one ‘that violates express statutory authority

at the time the sentence is pronounced.’” Id. (emphasis in original).

     Huffman argues that the sentencing order is facially defective because it includes an

award of restitution even though the plea agreement was silent on that matter. He claims

that the trial court should have granted his motion to correct erroneous sentence in

acknowledgement that the trial court was bound by the terms of the plea agreement. As

previously noted, Huffman waived his right to pursue a motion to correct erroneous

sentence. Nonetheless, this argument could have been, but was not, presented for review

in Huffman’s petition for post-conviction relief. Because the issue was available to

Huffman at the time of his petition for post-conviction relief, but he failed to raise it, the

issue is waived. P-C.R. 1, §8.

       Further, the plea agreement stated that “[a]t the time of sentencing, the Defendant’s

sentence will be left to the discretion of the trial court, except for a ten (10) year cap on

any executed portion.” Appellant’s App. at 199. The trial court complied with the terms

of the plea agreement by imposing a ten-year executed sentence followed by a period of

probation. “[A] trial court may order restitution as part of a defendant’s sentence wholly

apart from probation.” Edsall v. State, 983 N.E.2d 200, 208 (Ind. Ct. App. 2013) (quoting

Pearson v. State, 883 N.E.2d 770, 772-73 (Ind. 2008)). “When restitution is ordered as

part of an executed sentence, an inquiry into the defendant’s ability to pay is not required.”

Id. “Generally, an order of restitution is within the trial court’s discretion, and it will be

reversed only upon a finding of an abuse of that discretion.” Id. The trial court’s

                                              6
imposition of a restitution obligation as part of Huffman’s sentence does not violate the

terms of Huffman’s plea agreement.

      After serving the executed portion of his sentence, Huffman began serving the

probationary term of his sentence. Huffman was told on numerous occasions that he

needed to begin making payments toward his restitution obligation. The local victim

offender reconciliation program dissolved, but those duties were fulfilled by the Madison

County Probation Department. That department determined the amount of Huffman’s

obligation. Huffman’s probation was revoked and part of his suspended sentence was

ordered to be served because Huffman failed to make regular restitution payments, having

made only one payment of $20. Huffman admitted that he was aware of his obligation and

did not make regular payments despite being employed such that he received a modest tax

refund. We conclude that Huffman has not established grounds for reversal.

                                     CONCLUSION

      In light of the foregoing, we affirm the trial court’s decision.

      Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.




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