MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Oct 26 2016, 9:34 am

regarded as precedent or cited before any                               CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


PRO SE APPELLANT                                         ATTORNEYS FOR APPELLEE
Richard D. Carter                                        Gregory F. Zoeller
New Castle, Indiana                                      Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard D. Carter,                                       October 26, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         51A01-1602-CR-272
        v.                                               Appeal from the Martin Circuit
                                                         Court
State of Indiana,                                        The Hon. Lynne E. Ellis, Judge
Appellee-Respondent.                                     Trial Court Cause No.
                                                         51C01-9309-CF-79



Bradford, Judge.



                                    Case Summary


Court of Appeals of Indiana | Memorandum Decision 51A01-1602-CR-272| October 26, 2016       Page 1 of 5
[1]   Appellant-Petitioner Richard Carter, pro se, appeals the denial of his motion to

      correct erroneous sentence. Specifically, Carter raises two issues, which we

      restate as follows: (1) whether the trial court erred when it denied Carter’s

      motion to correct erroneous sentence; and (2) whether Carter can raise a claim

      that his direct appeal counsel was ineffective for the first time during an appeal

      from the denial of a motion to correct erroneous sentence. We affirm.



                            Facts and Procedural History
[2]   On September 23, 1993, Carter was charged with armed robbery as a Class A

      felony, armed robbery as a Class B felony, battery as a Class C felony, and two

      counts of theft as Class D felonies. Prior to trial, the State dismissed the two

      counts of theft. On August 21, 1996, a jury found Carter guilty of the

      remaining charges. At a sentencing hearing on September 24, 1996, the trial

      court merged the battery conviction with the Class A felony robbery conviction.

      The trial court subsequently sentenced Carter to consecutive terms of fifty years

      for the Class A felony robbery and twenty years for the Class B felony robbery.

      This Court affirmed Carter’s convictions on March 18, 1998, in a memorandum

      decision under Cause 51A04-9701-CR-15. On December 21, 2015, Carter filed

      a motion to correct erroneous sentence and a supporting memorandum of law.

      The trial court denied the motion to correct erroneous sentence on January 5,

      2016.



                                 Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 51A01-1602-CR-272| October 26, 2016   Page 2 of 5
                              I.     Motion to Correct Sentence
[3]   Carter’s motion to correct sentence derives from Indiana Code Section 35-38-1-

      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 this statute “is to provide prompt, direct access to an

      uncomplicated legal process for correcting the occasional erroneous or illegal

      sentence.” Gaddie v. State, 566 N.E.2d 535, 537 (Ind. 1991). Our Supreme

      Court has held that “a motion to correct sentence may only be used to correct

      sentencing errors that are 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). Furthermore, such a motion is not appropriate when a claim

      requires consideration of the proceedings before, during, or after trial. Id.

      When claims of sentencing errors do require consideration of matters outside of

      the sentencing judgment, they are best addressed promptly on appeal or later, if

      applicable, via post-conviction relief proceedings. Id.


[4]   In the present case, Carter is challenging his sentence by a motion to correct

      sentence claiming that the trial court violated Indiana Code Section 35-50-1-2

      when it sentenced him to an aggregate term of seventy years. According to

      Court of Appeals of Indiana | Memorandum Decision 51A01-1602-CR-272| October 26, 2016   Page 3 of 5
      Carter’s interpretation of the statute, fifty years was the maximum term of

      imprisonment for which he was eligible because his crimes were “committed

      during a short period of time at one location, were integrated parts of one

      continuous criminal design and plan, were motivated by the same criminal

      intent and thus comprised a single episode of criminal conduct.” Appellant’s

      Br. p. 26-27. However, Carter also states that his crimes, robbery as a Class A

      felony and robbery as a Class B felony, are crimes of violence1 as defined by the

      legislature in Indiana Code Section 35-50-1-2. These crimes of violence are

      exempt from the sentencing limitation in the above mentioned statute. 2

      Consequently, we affirm the trial court.



            II. Ineffective Assistance of Appellate Counsel
[5]   Carter contends that his appellate counsel was ineffective because he did not

      challenge Carter’s sentence as violating Indiana’s single episode sentencing

      limitation. Carter raises this claim for the first time in the instant appeal. In




      1
       A crime of violence for purposes of this section includes robbery as a Class A felony and robbery as a Class
      B felony. Ind. Code § 35-50-2-8(a)(12) (1997).
      2
          At the time of Carter’s direct appeal, the statute provided that:

                 The court may order terms of imprisonment to be served consecutively even if the sentences are not
                 imposed at the same time. However, except for crimes of violence, the total of the consecutive terms
                 of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to
                 which the defendant is sentenced for felony convictions arising out of an episode of criminal
                 conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher
                 than the most serious of the felonies for which the person has been convicted.
      Ind. Code § 35-50-2-8 (1997).

      Court of Appeals of Indiana | Memorandum Decision 51A01-1602-CR-272| October 26, 2016               Page 4 of 5
      fact, Carter himself acknowledges in his brief that such claim was not raised

      until this appeal from the denial of his motion to correct erroneous sentence.


[6]   As a general rule, an argument raised for the first time on appeal is considered

      waived and will not be considered by this court. Washington v. State, 808

      N.E.2d 617, 625 (Ind. 2004). Moreover, the issue of ineffective assistance of

      appellate counsel may not be presented via a motion to correct sentence. As

      discussed above, such a motion is very limited in scope and may only be used to

      correct sentencing errors that are clear from the face of the judgment imposing

      the sentence. Therefore, this claim improperly asks us to consider proceedings

      after the trial. Such a claim should have been brought under Indiana’s post-

      conviction rules. See Ind. Post-Conviction Rule 1(a); see also Ward v. State, 969

      N.E.2d 46, 51 (Ind. 2012) (“The scope of the relief available is limited to issues

      that were not known at the time of the original trial or that were not available

      on direct appeal.”) (internal citations omitted). Accordingly, we will not

      address Carter’s claim of ineffective assistance of appellate counsel.


[7]   The judgment of the trial court is affirmed.


      Pyle, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 51A01-1602-CR-272| October 26, 2016   Page 5 of 5
