MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Oct 12 2017, 9:10 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court


estoppel, or the law of the case.


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
John Anthony Hawkins                                     Curtis T. Hill, Jr.
Indiana State Prison                                     Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Anthony Hawkins,                                    October 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-712
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-9708-PC-127418



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-712 | October 12, 2017           Page 1 of 7
                                       Statement of the Case
[1]   John Anthony Hawkins (“Hawkins”), pro se, appeals the trial court’s order

      denying his second motion to correct erroneous sentence. In his motion and on

      appeal, he challenges the trial court’s determination of the aggravating

      circumstances, weighing of aggravating and mitigating circumstances, and

      imposition of an enhanced sentence of sixty-five years without a determination

      of aggravating circumstances found by a jury as required by Smylie v. State, 823

      N.E.2d 679 (Ind. 2005), cert. denied and Blakely v. Washington, 542 U.S. 296

      (2004), reh’g denied. Because a motion to correct erroneous sentence is limited

      to correcting sentencing errors apparent on the face of the judgment and

      Hawkins raises issues outside of this context, we conclude that the trial court

      did not abuse its discretion by denying his motion to correct erroneous

      sentence.


[2]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion by denying Hawkins’s
              motion to correct erroneous sentence.

                                                     Facts
[3]   The underlying facts and procedural history of Hawkins’s case were set forth in

      our Court’s memorandum decision affirming the denial of his first motion to

      correct erroneous sentence:




      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-712 | October 12, 2017   Page 2 of 7
        In 1997, Hawkins was charged with the murder of Rogshan
        Love. Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001), reh’g
        denied. Following a jury trial, he was found guilty of murder and
        sentenced to the maximum term of sixty-five years
        imprisonment. Id. Our supreme court affirmed Hawkins’s
        conviction and sentence on direct appeal.[1] Id. at 364. In 2011,
        the trial court denied Hawkins’s petition for post-conviction
        relief, a judgment later affirmed by this Court in an unpublished
        decision. See Hawkins v. State, No. 49A04-1108-PC-424, slip op.
        at 7 (Ind. Ct. App. Apr. 23, 2012), trans. denied.

        On April 27, 2015, Hawkins filed a motion to correct sentence
        and memorandum of law in support of the motion. The motion
        raised federal and state constitutional claims and challenged the
        trial court’s identification and weighing of aggravating and
        mitigating circumstances. In an order dated May 13, 2015, the
        trial court denied the motion, finding that Hawkins’s motion
        “simply attempts to re-litigate issues that were addressed on
        direct appeal without success.” (App. 24.) Hawkins then filed a
        motion to correct error on June 19, 2015,[] which the trial court
        denied on June 23, 2015.

Hawkins v. State, No. 49A05-1507-CR-855, *1 (Ind. Ct. App. Nov. 25, 2015).

Our Court affirmed the trial court’s denial of Hawkins’s first motion to correct

erroneous sentence. We explained that, pursuant to Robinson v. State, 805

N.E.2d 783 (Ind. 2004), “Hawkins’s federal and state constitutional claims, and

his contentions that the trial court improperly identified and weighed

aggravating and mitigating circumstances, require considerations beyond the


1
  The Indiana Supreme Court agreed with Hawkins that two of the four aggravating circumstances found by
the trial court were improper (specifically, the depreciates the seriousness of the crime aggravator and the
recommendation from the victim’s family that Hawkins receive an enhanced sentence). Nevertheless, our
supreme court affirmed Hawkins’s sentence, holding that “the single aggravating factor of Hawkins’ prior
criminal history [wa]s enough to support an enhanced sentence.” Hawkins v. State, 748 N.E.2d 362, 364 (Ind.
2001), reh’g denied.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-712 | October 12, 2017           Page 3 of 7
      face of the sentencing judgment[,]” and that “[s]uch claims may be raised only

      on direct appeal or through postconviction proceedings, not through a statutory

      motion to correct sentence.” Hawkins, No. 49A05-1507-CR-855 at *2.


[4]   Subsequently, on March 3, 2017, Hawkins filed a second motion to correct

      erroneous sentence.2 In this motion, Hawkins again challenged the trial court’s

      determination of the four aggravating circumstances 3 and its weighing of

      aggravating and mitigating circumstances. Additionally, Hawkins argued that

      the trial court’s imposition of a maximum sentence of sixty-five years was

      improper because the sentence was enhanced by aggravating circumstances not

      found by a jury as required by Smylie v. State, 823 N.E.2d 679 (Ind. 2005), cert.

      denied and Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied. The trial

      court denied Hawkins’s second motion to correct erroneous sentence. Hawkins

      now appeals.


                                                    Decision
[5]   Hawkins appeals the trial court’s denial of his motion to correct erroneous

      sentence pursuant to INDIANA CODE § 35-38-1-15. We review a trial court’s

      denial of a motion to correct erroneous sentence for an abuse of discretion,

      which occurs when the trial court’s decision is against the logic and effect of the


      2
        Hawkins attached his abstract of judgment to his motion to correct erroneous sentence. As explained in
      Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008), when a defendant files a motion to correct sentence in a
      county such as Marion County, which does not issue judgments of conviction, the abstract of judgment will
      serve as an appropriate substitute for the judgment of conviction for purposes of making the claim.
      3
        Hawkins failed to recognize the Indiana Supreme Court’s direct appeal opinion that determined that two of
      the four aggravating circumstances were improper and that his enhanced sentence was, nevertheless, proper
      given his criminal history aggravating circumstance.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-712 | October 12, 2017           Page 4 of 7
      facts and circumstances before it. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct.

      App. 2012).


[6]   An inmate who believes he has been erroneously sentenced may file a motion

      to correct the sentence pursuant to INDIANA CODE § 35-38-1-15. Neff v. State,

      888 N.E.2d 1249, 1250-51 (Ind. 2008). INDIANA CODE § 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 the statute ‘is to provide prompt, direct access to an

      uncomplicated legal process for correcting the occasional erroneous or illegal

      sentence.’” Robinson, 805 N.E.2d at 785 (quoting Gaddie v. State, 566 N.E.2d

      535, 537 (Ind. 1991)).


[7]   A statutory motion to correct erroneous 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, 805 N.E.2d at 787.

      “Such 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 v. State, 855 N.E.2d 1064, 1066 (Ind. Ct. App.

      2006). If a claim requires consideration of the proceedings before, during, or

      after trial, it may not be presented by way of a motion to correct erroneous

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-712 | October 12, 2017   Page 5 of 7
      sentence. Robinson, 805 N.E.2d at 787. Such claims are best addressed on

      direct appeal or by way of a petition for post-conviction relief where applicable.

      Id. “Use of the statutory motion to correct sentence should thus be narrowly

      confined to claims apparent from the face of the sentencing judgment, and the

      “facially erroneous” prerequisite should henceforth be strictly applied[.]” Id.


[8]   Here, Hawkins challenges the trial court’s determination of the aggravating

      circumstances and its weighing of aggravating and mitigating circumstances.

      He also suggests that his sentence was inappropriate under Indiana Appellate

      Rule 7(B). These sentencing issues, however, are not proper claims for a

      motion to correct erroneous sentence because they “necessarily require[]

      consideration of the sentencing hearing[.]” See Godby v. State, 976 N.E.2d 1235,

      1236 (Ind. Ct. App. 2012) (explaining that the defendant’s motion to correct

      erroneous sentence was not the proper method to challenge a sentencing

      aggravator).4


[9]   Additionally, in regard to Hawkins’s contention that the trial court imposed his

      sentence in violation of the requirements of Blakely, our Court has explained

      that such a claim is not one to be raised in a motion to correct erroneous

      sentence:


               Blakely, however, does not prohibit all enhanced sentences;
               rather, Blakely requires only that the facts used to support an
               enhanced sentence, other than the fact of a prior conviction, must

      4
        Moreover, Hawkins has already raised some of these sentencing challenges to our supreme court, which
      held that two of the four aggravating circumstances found by the trial court were improper but affirmed his
      sentence. See Hawkins, 748 N.E.2d at 364.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-712 | October 12, 2017            Page 6 of 7
                 be found by a jury or admitted by the defendant. 542 U.S. at
                 301, 124 S.Ct. 2531. See also Edwards v. State, 822 N.E.2d 1106,
                 1109 (Ind. Ct. App. 2005). Thus, a determination of whether a
                 sentence was properly imposed under Blakely would require that
                 we look beyond the face of the judgment to see if imposition of
                 an enhanced sentence was based upon facts determined through
                 constitutionally permissible channels. As such, a Blakely claim is
                 not the type of claim which may be brought through
                 a motion to correct erroneous sentence.

       Fulkrod, 855 N.E.2d at 1067.


[10]   The errors that Hawkins alleges are not clear from the face of the sentencing

       order and are not appropriate for a motion to correct erroneous sentence. See

       Robinson, 805 N.E.2d at 787. Because Hawkins has failed to show that the trial

       court abused its discretion by denying his motion, we affirm the trial court’s

       judgment. See, e.g., Bauer v. State, 875 N.E.2d 744, 746 (Ind. Ct. App. 2007)

       (affirming the trial court’s denial of the defendant’s motion to correct erroneous

       sentence where the defendant’s claims required consideration of matters in the

       record outside the face of the judgment and were, accordingly, not the types of

       claims properly presented in a motion to correct erroneous sentence), trans.

       denied.


[11]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-712 | October 12, 2017   Page 7 of 7
