MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Apr 05 2018, 9:17 am
this Memorandum Decision shall not be
                                                                             CLERK
regarded as precedent or cited before any                                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
Damien R. Fayson                                         Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Damien R. Fayson,                                        April 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1707-CR-1588
        v.                                               Appeal from the
                                                         Lake Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      T. Edward Page, Judge Pro
                                                         Tempore
                                                         The Honorable
                                                         Natalie Bokota, Magistrate
                                                         Trial Court Cause No.
                                                         45G02-9808-CF-158



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018             Page 1 of 8
[1]   Damien R. Fayson (“Fayson”) appeals the trial court’s denial of his pro se

      motion to correct erroneous sentence, raising one issue that we restate as:

      whether the trial court abused its discretion when it denied his motion.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In August 1998, the State charged Fayson with murder, a felony, and he was

      found guilty following a January 1999 jury trial. Appellant’s App. Vol. 2 at 5. On

      February 23, 1999, the trial court held a sentencing hearing, at which Fayson

      appeared by counsel, along with the State and a representative from the

      probation department, who filed a presentence investigation report. Id. at 13.

      After the hearing, the trial court issued an order stating in part:


              Evidence is presented, arguments are heard, and the defendant is
              given an opportunity to make a statement before sentence is
              imposed. For the reasons stated in open court, the defendant is
              remanded to the custody of the department of correction for
              classification and confinement in an appropriate facility for a
              term of sixty years for committing the offense of murder.


      Id. Fayson filed a direct appeal, and the Indiana Supreme Court upheld his

      conviction. Fayson v. State, 726 N.E.2d 292, 296 (Ind. 2000).


[4]   The facts and circumstances of his crime are set out in Fayson’s direct appeal:


              Early on the morning of August 9, 1998, Brandon Ford and
              Jermaine Lowe were sitting outside the home of Yakkei Wright,
              Fayson’s girlfriend. Ford had dated Wright during the spring of
              that year. According to Jermaine, Fayson and a friend drove up
      Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018   Page 2 of 8
        to the house and Fayson went inside and returned with a nine
        millimeter gun. An argument broke out between Fayson and
        Ford but Jermaine believed the dispute had been settled and
        turned his attention to a videogame being played in the house.
        Jermaine then heard a shot. As Jermaine turned, he saw Fayson
        bring his hand back and Ford’s body fall to the sidewalk. Fayson
        threatened to kill Jermaine if he told anyone of the shooting.


        Jermaine shook Ford and concluded that he was dead. He then
        ran to his house and reported the shooting. Jermaine’s older
        brother, James Lowe, went to the scene and spotted Ford’s body
        in a field adjacent to Wright’s house. Two minutes later, Fayson
        and a friend arrived at the field. Fayson told James that he had
        killed Ford and had to move the body again because the situation
        was going to “get too hot.”


        Jermaine reported to the police that Fayson had killed Ford.
        When an officer went to Wright’s house to find Fayson, Wright
        stated that she did not know where Fayson was and had not seen
        him since seven o’clock that morning. She then gave police
        permission to search her house where they discovered Fayson
        asleep on a bed. A bullet casing and pool of blood were found in
        front of Wright’s house.


        An autopsy concluded that Ford died of a gunshot wound to the
        right eye. Stippling on Ford’s skin indicated that the shot had
        been fired at close range. The State charged Fayson with murder
        and Wright with assisting a criminal. Fayson and Wright were
        tried together by a jury, convicted, and sentenced to sixty years
        and three years imprisonment, respectively.


Id. at 293-94.




Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018   Page 3 of 8
[5]   On June 14, 2017, Fayson filed a Motion to Correct Erroneous Sentence,

      alleging that the trial court erred when it sentenced him to sixty years, which

      was an enhanced sentence from the presumptive fifty-five years. Appellant’s

      App. Vol. 2 at 7. Fayson argued that, in order to impose an enhanced sentence,

      the trial court was required to identify the significant aggravating and mitigating

      factors, relate the specific facts and reasons that it found those factors, and

      balance the aggravators and mitigators. Id. He asked that his sentence be

      reduced from sixty years to fifty-five years, arguing:


              [T]here are no visible aggravators or mitigators listed. The
              statute I.C. § 35-50-2-3 guarantees the right to a presumptive
              sentence when no valid aggravators are present. . . . Thus, the
              trial court did not obtain statutory authority to enhance
              petitioner[’]s sentence by five years.


      Id. at 12.


[6]   In June 2017, the trial court issued an order (“Order”), denying Fayson’s

      motion to correct erroneous sentence. The Order stated, in pertinent part:


              A motion to correct erroneous sentence may only be used to
              attack a sentence that is erroneous on its face. The sentence
              herein is not facially defective because the record indicates the
              aggravators and mitigators were weighed in open court.
              Therefore the issue must be raised in a petition for post-




      Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018   Page 4 of 8
               conviction relief if the petitioner wishes to attack his conviction
               and/or sentence.1


      Id. at 14. Fayson now appeals.


                                         Discussion and Decision
[7]   Fayson’s motion to correct erroneous sentence derives from Indiana Code

      section 35-35-1-15, which 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 the 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).


[8]   A motion to correct erroneous sentence is a procedural mechanism which may

      be used to challenge a sentence that is erroneous on its face. Fulkrod v. State,

      855 N.E.2d 1064, 1066 (Ind. Ct. App. 2006) (citing Robinson, 805 N.E.2d at

      787). For example, a motion to correct erroneous sentence could be used to




      1
        The Order continued by noting that Fayson has already filed a petition for post-conviction relief and that
      “[i]f the defendant wishes to file a successive petition for post-conviction relief, he must do so directly with
      the clerk of the Indiana Supreme Court[.]” Appellant’s App. Vol. 2 at 14.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018                   Page 5 of 8
       correct “‘illegal sentences in violation of express statutory authority or an

       erroneous interpretation of a penalty provision of a statute,’ but would not be

       available for claims raising ‘constitutional issues or issues concerning how the

       trial court weighed factors in imposing sentence.’” Robinson, 805 N.E.2d at 786

       (quoting Jones v. State, 544 N.E.2d 492, 496 (Ind. 1989)). Claims may be

       resolved by considering only the face of the judgment and the applicable

       statutory authority, without reference to other matters in or extrinsic to the

       record. Fulkrod, 855 N.E.2d at 1066. Our Supreme Court has made clear that

       “[t]he ‘facially erroneous’ prerequisite should . . . be strictly applied[.]”

       Robinson, 805 N.E.2d at 787. Claims that require consideration of proceedings

       before, during, or after trial may not be presented by way of a motion to correct

       erroneous sentence. Id.


[9]    Here, Fayson’s motion to correct erroneous sentence argued that, in the trial

       court’s February 1999 sentencing order, “there are no visible aggravators or

       mitigators listed” and “no valid aggravators are present.” Appellant’s App. Vol. 2

       at 12. He contends on appeal that because the trial court “failed to document

       on the record which factors were relied upon” to enhance his sentence, the trial

       court lacked authority to impose the sixty-year sentence, and this “failure to

       provide an accurate record deprive[d] [him] of due process.” Appellant’s Br. at

       6. Upon review, we find that the trial court properly denied Fayson’s motion.


[10]   As an initial matter, we find that Fayson’s argument does not actually allege

       that his sentence is facially erroneous, and, more precisely, it claims that the

       written sentencing statement was insufficient. Fayson is correct that, to

       Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018   Page 6 of 8
       enhance a presumptive sentence, the trial court was required to “state the

       reasons underlying the sentence.” Ratliff v. State, 741 N.E.2d 424, 432 (Ind. Ct.

       App. 2000) (citing Indiana Code § 35-38-1-3(3)). When reviewing the

       sufficiency of the sentencing statement, we examine both the trial court’s

       written and oral statements. Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct.

       App. 2012); see also Ratliff, 741 N.E.2d at 432 (in reviewing sufficiency of

       sentencing statement, appellate court is not limited to written sentencing order).


[11]   Here, the trial court’s written order that sentenced Fayson to sixty years

       incorporated the reasons that had been stated in open court at the sentencing

       hearing. Appellant’s App. Vol. 2 at 13. On appeal, Fayson does not dispute that,

       at the sentencing hearing, the trial court stated the reasons for the sentence it

       imposed, and he does not claim that he does not know the reasons, that they

       were improper, or that there were none. Rather, he appears to claim that the

       aggravator(s) should have been expressly stated in the written order, and

       because they were not, the trial court lacked authority to sentence him to

       anything in excess of the presumptive sentence, and the trial court should have

       granted his motion to correct erroneous sentence. We disagree.


[12]   First, contrary to Fayson’s argument, the trial court’s authority to sentence him

       is not based upon what is or is not stated in the written sentencing order; the

       authority is grounded in statutes. See e.g., Ind. Code ch. 35-38-1; Ind. Code ch.

       35-50-2. Second, any claim that the trial court did not enter an adequate

       sentencing statement should have been brought by direct appeal. See Dennis v.

       State, 908 N.E.2d 209, 212 (Ind. 2009) (direct appeal asserting that trial court

       Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018   Page 7 of 8
       did not enter sufficient sentencing statement). Third, Fayson’s assertion that he

       was “deprive[d] . . . of due process” because the written sentencing order

       referred to and incorporated reasons discussed in open court at the sentencing

       hearing, but did not list aggravators or mitigators, is a claim that raises

       “constitutional issues or issues concerning how the trial court weighed factors

       in imposing sentence[,]” which our Supreme Court has stated are not

       appropriate matters for a motion to correct erroneous sentence. Robinson, 805

       N.E.2d at 786. Fourth, Fayson’s sixty-year sentence is within statutory

       guidelines. Ind. Code § 35-50-2-3 (stating that person who commits murder

       shall be imprisoned for a fixed term of fifty-five years, with not more than ten

       years added for aggravating circumstances or not more than ten years

       subtracted for mitigating circumstances). Accordingly, we find that Fayson’s

       sentence was not erroneous on its face, and the trial court did not abuse its

       discretion when it denied his motion to correct erroneous sentence.


[13]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018   Page 8 of 8
