MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Apr 27 2017, 10:55 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
Brian Woodring                                           Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Woodring,                                          April 27, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         55A01-1602-PC-327
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Clark Rogers,
Appellee-Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         55D03-1110-PC-1273



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017              Page 1 of 8
                                       Statement of the Case
[1]   Brian Woodring appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Woodring raises three issues for our review, which we

      consolidate and restate as two issues:

              1.       Whether the State breached the plea agreement regarding
                       Woodring’s Sexually Violent Predator (“SVP”) status and
                       his parole.

              2.       Whether his sentence is illegal.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On June 17, 2010, Woodring pleaded guilty to child molesting, as a Class C

      felony; and obscene performance, as a Class D felony; and he admitted to being

      a repeat sexual offender. The plea agreement provided that the trial court

      would sentence Woodring to consecutive sentences of eight years, with seven

      and one-half years executed and six months on non-reporting probation for

      child molesting; three years executed for obscene performance; and a ten-year

      enhancement for being a repeat sexual offender. Woodring’s plea agreement

      stated that the aggregate twenty-one-year sentence would run consecutive to his

      sentences stemming from convictions in Johnson County.


[4]   On October 6, 2011, Woodring filed a petition for post-conviction relief, which

      he amended on June 4, 2015. In his amended petition, Woodring alleged in

      relevant part that the State had breached the plea agreement and that his

      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017   Page 2 of 8
      sentence was illegal. Following a hearing, the court denied the petition. This

      appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[5]   Woodring appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review is clear:


              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
              (citations omitted). When appealing the denial of post-
              conviction relief, the petitioner stands in the position of one
              appealing from a negative judgment. Id. To prevail on appeal
              from the denial of post-conviction relief, a petitioner must show
              that the evidence as a whole leads unerringly and unmistakably
              to a conclusion opposite that reached by the post-conviction
              court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
              Further, the post-conviction court in this case made findings of
              fact and conclusions of law in accordance with Indiana Post-
              Conviction Rule 1(6). Although we do not defer to the post-
              conviction court’s legal conclusions, “[a] post-conviction court’s
              findings and judgment will be reversed only upon a showing of
              clear error—that which leaves us with a definite and firm
              conviction that a mistake has been made.” Ben-Yisrayl v. State,
              729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).




      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017   Page 3 of 8
                                 Issue One: Breach of Plea Agreement

[6]   Woodring contends that the State breached the plea agreement when it did not

      make certain that the trial court’s sentencing order and abstract of judgment

      included statements that he was not an SVP and that he would not be placed on

      parole because he “is required to leave the country.” Appellant’s Br. at 20. The

      post-conviction court concluded that Woodring’s allegations did “not fall into

      any of the categories enumerated” in Post-Conviction Rule 1. Appellant’s App.

      Vol. III at 103. On appeal, while Woodring states that it is “well established

      [he] may bring a breach of agreement [claim] under [Indiana Post-Conviction

      Rule] 1,” he does not direct us to any authority in support of that contention.

      Id. at 11.


[7]   As this court has held,

              the question of subject matter jurisdiction entails a determination
              of whether a court has jurisdiction over the general class of
              actions to which a particular case belongs. K.S. v. State, 849
              N.E.2d 538, 540 (Ind. 2006); see also M.B. v. State, 815 N.E.2d
              210, 214 (Ind. Ct. App. 2004). The only inquiry relevant to a
              determination of whether the post-conviction court had subject
              matter jurisdiction is whether the kind of claim advanced by a
              petitioner in the post-conviction court falls within the general
              scope of authority conferred upon that court by constitution or
              statute. In re K.B., 793 N.E.2d 1191, 1199 n.6 (Ind. Ct. App.
              2003). Moreover, subject matter jurisdiction cannot be waived
              and courts are required to consider the issue sua sponte if it is not
              properly raised by the party challenging jurisdiction. See Stewart
              v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d 542, 544 (Ind.
              Ct. App. 2002); see also B.D.T. v. State, 738 N.E.2d 1066, 1068
              (Ind. Ct. App. 2000).

      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017   Page 4 of 8
        Post-conviction relief is a product of the Indiana Supreme Court
        and is, therefore, entirely defined in scope by the post-conviction
        rules it has adopted. Samuels v. State, 849 N.E.2d 689, 691 (Ind.
        Ct. App. 2006). Indiana Post-Conviction Rule 1(1)(a) provides
        that post-conviction relief is only available if the petitioner
        claims:

                 (1) that the conviction or sentence was in violation of
                 the Constitution of the United States or the
                 constitution or laws of this State;

                 (2) that the court was without jurisdiction to impose
                 sentence;

                 (3) that the sentence exceeds the maximum
                 authorized by law, or is otherwise erroneous;

                 (4) that there exists evidence of material facts, not
                 previously presented and heard, that requires
                 vacation of the conviction or sentence in the interest
                 of justice;

                 (5) that his sentence has expired, his probation,
                 parole or conditional release unlawfully revoked, or
                 he is otherwise unlawfully held in custody or other
                 restraint;

                 (6) that the conviction or sentence is otherwise
                 subject to collateral attack upon any ground of
                 alleged error heretofore available under any common
                 law, statutory or other writ, motion, petition,
                 proceeding, or remedy[.]


Members v. State, 851 N.E.2d 979, 981-82 (Ind. Ct. App. 2006).




Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017   Page 5 of 8
[8]   On appeal, Woodring does not identify the subsection of Post-Conviction Rule

      1 that applies to his breach of plea agreement claims. And Woodring does not

      ask that his plea be set aside. See State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013)

      (stating motion to set aside guilty plea is treated as a petition for post-conviction

      relief). Rather, Woodring requests only that we order the trial court to correct

      the sentencing order and abstract of judgment to reflect both that he is not an

      SVP1 and that he is required to leave the country. We hold that the post-

      conviction court did not have subject matter jurisdiction to consider

      Woodring’s breach of plea agreement claims, and we do not address them here.

      See Members, 851 N.E.2d at 981-82.


                                           Issue Two: Illegal Sentence

[9]   Woodring also contends that his sentence is illegal. In particular, Woodring

      maintains that, under Indiana Code Section 35-50-2-14(e), the enhancement for

      his repeat sexual offender status was limited to a maximum of four years.

      Thus, he asserts that the ten-year enhancement included in his plea agreement

      is illegal and cannot stand. Assuming for the purposes of this appeal that his

      sentence is illegal, the post-conviction court correctly declined to revise

      Woodring’s sentence.




      1
        Woodring concedes that he is an SVP by operation of Indiana Code Section 35-38-1-7.5. Assuming he is
      correct, we note that changes to the sentencing order and abstract of judgment would not affect his SVP
      status. See, e.g., Stockert v. State, 44 N.E.3d 78, 82 (Ind. Ct. App. 2015) (holding that, in light of defendant’s
      SVP status by operation of law, neither plea agreement nor trial court could alter lifetime reporting period for
      SVPs), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017                   Page 6 of 8
[10]   Woodring acknowledges that “a defendant may not enter a plea agreement

       calling for an illegal sentence, benefit from that sentence, and then later

       complain that it was an illegal sentence.” Appellant’s Br. at 21-22 (quoting Lee

       v. State, 816 N.E.2d 35, 40 (Ind. 2004)). But Woodring contends that, because

       he did not know that the sentence was illegal when he entered into the plea

       agreement and thought that the ten-year enhancement was mandatory, we must

       reverse. In support of that contention, Woodring cites to this court’s vacated

       opinion in Russell v. State, 11 N.E.3d 938 (Ind. Ct. App. 2014), and our opinion

       in Primmer v. State, 857 N.E.2d 11 (Ind. Ct. App. 2006), trans. denied.


[11]   First, not only was Russell vacated, but our supreme court’s opinion on transfer

       does not support Woodring’s contention on this issue. See Russell v. State, 34

       N.E.3d 1223, 1228 (Ind. 2015). Second, Primmer likewise does not support

       Woodring’s contention. In Primmer, “although the State argued for, and the

       trial court imposed, an illegal sentence, the plea agreement itself did not call for an

       illegal sentence.” 857 N.E.2d at 18 (emphasis added). Here, Woodring agreed to

       the ten-year enhancement in his plea agreement, and he has benefited as a result

       of the illegal sentence.2


[12]   Further, Woodring makes no claim that his guilty plea should be set aside.

       Rather, Woodring asks that we reduce his sentence. By agreeing to plead guilty

       to the C and D felonies in exchange for the State’s dismissal of an A felony,




       2
           In exchange for his plea, the State dismissed a Class A felony child molesting charge.


       Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017         Page 7 of 8
       Woodring reduced his penal exposure by decades. See Lee, 816 N.E.2d at 39-

       40. Woodring does not contend that he would have taken his chances and gone

       to trial had he known that his sentence was illegal. See id. at 40. The post-

       conviction court did not err when it denied his petition on this issue.


[13]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017   Page 8 of 8
