MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    May 15 2017, 9:25 am

this Memorandum Decision shall not be                                          CLERK
                                                                           Indiana Supreme Court
regarded as precedent or cited before any                                     Court of Appeals
                                                                                and Tax Court
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
Kevin Govan                                             Curtis T. Hill, Jr.
Westville, Indiana                                      Attorney General of Indiana

                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin Govan,                                            May 15, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A04-1608-CR-1880
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D04-0411-FB-196



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017                Page 1 of 5
                                          Case Summary
[1]   Kevin Govan appeals the denial of his motion to correct erroneous sentence.

      Finding no error, we affirm.



                            Facts and Procedural History
[2]   In 2005, Govan was convicted of two counts of Class B felony criminal

      confinement. The trial court imposed a sentence of forty years, consisting of

      consecutive twenty-year terms on each count: fifteen years plus five years under

      Indiana Code section 35-50-2-11, which allows for sentence enhancements for

      certain offenses (including Class B felony criminal confinement) where a

      defendant “used a firearm in the commission of the offense.” In June 2016,

      Govan filed a motion to correct erroneous sentence, claiming that the firearm

      enhancements are improper. The trial court denied the motion, and Govan

      now appeals.



                                Discussion and Decision
[3]   Govan contends that the trial court erred when it imposed the firearm

      enhancements and that it erred again when it denied his motion to correct

      erroneous sentence. A trial court can grant a motion to correct erroneous

      sentence only where an error is “clear from the face of the judgment imposing

      the sentence in light of the statutory authority.” Robinson v. State, 805 N.E.2d

      783, 787 (Ind. 2004). “Claims that require consideration of the proceedings


      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017   Page 2 of 5
      before, during, or after trial may not be presented by way of a motion to correct

      sentence.” Id.


[4]   Govan challenges his firearm enhancements on two grounds, neither of which

      is convincing. First, he argues that the firearm-enhancement statute, Indiana

      Code section 35-50-2-11, allows only one enhancement to be imposed in any

      given case. The statute allows for the imposition of “an additional fixed term of

      imprisonment” on top of the base sentence for certain offenses if the defendant

      “used a firearm in the commission of the offense[.]” I.C. § 35-50-2-11. Govan

      reads the phrase “an additional fixed term”—singular—to mean that a trial

      court cannot impose multiple additional terms—plural—in one case, regardless

      of the number of offenses committed or the particular facts of the case. Govan

      does not cite any authority that interprets the statute the way he does, and we

      are not aware of any. To the contrary, the inclusion of the phrase “commission

      of the offense” (emphasis added) in the same provision indicates that the phrase

      “an additional fixed term of imprisonment” is simply a general reference to the

      enhancement of the sentence imposed for one offense. In other words, the plain

      text of the statute does not completely foreclose the imposition of multiple

      firearm enhancements when there are multiple offenses.


[5]   Of course, the fact that the statute does not absolutely prohibit multiple

      enhancements in a single case does not mean that it permits multiple

      enhancements whenever a defendant is convicted of multiple enhancement-

      eligible crimes. Nor does it mean that multiple enhancements would survive a

      constitutional double-jeopardy analysis even if permitted by the bare text of the

      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017   Page 3 of 5
      statute. But determining whether multiple enhancements are permissible in a

      particular case would require us to know the specific facts of that case, which in

      turn would require us to venture beyond the face of the judgment.1 Govan has

      not asked us to do that here, recognizing that we cannot do so on a motion to

      correct erroneous sentence. See Robinson, 805 N.E.2d at 787; see also Appellant’s

      Reply Br. pp. 4-5. The only argument Govan makes is that the text of Section

      35-50-2-11 prohibits the imposition of multiple firearm enhancements in any

      one case as a matter of law, regardless of the facts. He is incorrect.2

[6]   Govan’s second argument is based on the requirement that any enhancement be

      sought “on a page separate from the rest of the charging instrument[.]” I.C. §

      35-50-2-11. As Govan points out, the Judgment of Conviction indicates that

      the two enhancements were sought as “Part 2” of each of the two criminal-

      confinement counts. Appellant’s App. Vol. II p. 12. Govan argues that the

      State was instead required to charge the enhancements as entirely separate

      “counts” against him. Appellant’s Br. p. 9. But the statute does not include

      such a requirement. It merely directs the State to seek any firearm

      enhancement “on a page separate from the rest of the charging information,”

      and Govan does not allege, let alone demonstrate, that the State failed to do so.




      1
       For example, we would need to know whether the offenses being enhanced were part of a single criminal
      episode or transaction or instead were separate or unrelated.
      2
        The General Assembly amended Section 35-50-2-11 while Govan’s original criminal case was pending in
      2005 and has amended it several times since, but Govan does not contend that any of the amendments are
      relevant to our decision.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017           Page 4 of 5
[7]   Because any error in Govan’s sentence is not “clear from the face of the

      judgment,” see Robinson, 805 N.E.2d at 787, the trial court properly denied

      Govan’s motion.

[8]   Affirmed.

      Bailey, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1880 | May 15, 2017   Page 5 of 5
