      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D), this                        Jan 30 2017, 10:13 am
      Memorandum Decision shall not be regarded as
                                                                              CLERK
      precedent or cited before any court except for the                  Indiana Supreme Court
                                                                             Court of Appeals
      purpose of establishing the defense of res judicata,                     and Tax Court
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Terry R. Twitty                                          Curtis T. Hill, Jr.
      Pendleton, Indiana                                       Attorney General of Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Terry R. Twitty,                                         January 30, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               32A01-1605-CR-1113
              v.                                               Appeal from the Hendricks Superior
                                                               Court.
                                                               The Honorable Karen M. Love,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 32D03-0212-FA-8




      Friedlander, Senior Judge

[1]   Terry R. Twitty appeals the denial of his motion to correct erroneous sentence.

      We affirm.


[2]   Twitty was convicted of five counts of child molesting, three as Class A felonies

      and two as Class C felonies, and was sentenced to 108 years. He appealed,

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      challenging: (1) the trial court’s treatment of one of the State’s witnesses; (2)

      the admission of certain testimony into evidence; and (3) the appropriateness of

      his sentence. A panel of this Court affirmed in a Memorandum Decision.

      Twitty v. State, Cause No. 32A01-0402-CR-55 (Ind. Ct. App. July 30, 2004).


[3]   Next, Twitty filed a petition for post-conviction relief, claiming ineffective

      assistance of trial and appellate counsel. The post-conviction court granted

      partial relief to Twitty, reducing his sentence to eighty-four years. He appealed,

      and the State of Indiana cross-appealed. In a Memorandum Decision, a panel

      of this Court reversed the post-conviction court’s sentence reduction, directed

      the court to reinstate the 108-year sentence, and rejected Twitty’s claims. Twitty

      v. State, Cause No. 32A01-1001-PC-19 (Ind. Ct. App. Sept. 29, 2010), trans.

      denied.


[4]   Twitty subsequently filed with the trial court two motions for sentence

      modification. The trial court denied both motions. Twitty appealed the second

      denial, and a panel of this Court affirmed the trial court’s decision in a

      Memorandum Decision. Twitty v. State, Cause No. 32A04-1410-CR-472 (Ind.

      Ct. App. April 27, 2015).


[5]   The current case began when Twitty filed a motion to correct erroneous

      sentence. The trial court held a hearing, after which it denied Twitty’s motion,

      and this appeal followed.


[6]   Twitty raises one issue, which we restate as: whether the trial court abused its

      discretion in denying Twitty’s motion to correct erroneous sentence. Twitty

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      claims the court should have granted his motion because his sentence is

      fundamentally erroneous. The State responds that Twitty is not permitted to

      raise his claims through a motion to correct erroneous sentence.


[7]   We review a trial court’s ruling on a motion to correct erroneous sentence for

      an abuse of discretion. Davis v. State, 978 N.E.2d 470 (Ind. Ct. App. 2012). An

      abuse of discretion occurs when the trial court’s decision is against the logic and

      effect of the facts and circumstances before it. Id.


[8]   The statute that governs motions to correct erroneous sentences provides, in

      relevant part:

              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.
      Ind. Code § 35-38-1-15 (1983).


[9]   It is in the best interests of all parties that sentencing errors be immediately

      discovered and corrected. Robinson v. State, 805 N.E.2d 783 (Ind. 2004). In

      general, such errors are most appropriately presented in a motion to correct

      error or in a direct appeal from the sentencing judgment. Id. In addition, a

      defendant may raise certain sentencing errors in post-conviction proceedings.

      See id. (citing Ind. Post-Conviction Rule 1, § (1)(a)(3)).




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[10]   A defendant may file a motion to correct erroneous sentence under Indiana

       Code section 35-38-1-15 as a narrower remedy. The Indiana Supreme Court

       has explained that, when addressing a motion to correct erroneous sentence, a

       court may consider “only the face of the judgment and the applicable statutory

       authority without reference to other matters in or extrinsic to the record.”

       Robinson, 805 N.E.2d at 787-88. Claims that require consideration of the

       proceedings before, during or after trial may not be presented by way of a

       motion to correct erroneous sentence. Id. at 787. “The narrow confines of this

       procedure are to be strictly applied.” Fulkrod v. State, 855 N.E.2d 1064, 1066

       (Ind. Ct. App. 2006).


[11]   Twitty presented two arguments in his motion to correct erroneous sentence:

       (1) his sentence violated the holding in Blakely v. Washington, 542 U.S. 296, 124

       S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because the trial court identified

       aggravating factors that had not been found by a jury; and (2) two of his

       convictions violated his federal and state constitutional protections against

       double jeopardy because the charges were identical and involved the same

       evidence. These claims cannot be addressed without looking beyond the face of

       the sentencing order to the evidence and arguments presented during the trial

       and the sentencing hearing. Twitty effectively conceded it is necessary to look

       at additional evidence because he tendered to the trial court exhibits in support

       of his motion to correct erroneous sentence, including excerpts from the

       charging information and excerpts from jury instructions. He is raising claims

       that cannot be considered in the context of a motion to correct erroneous


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       sentence. See Robinson, 805 N.E.2d 783 (noting that in an earlier case, the

       Indiana Supreme Court had failed to rigorously apply the “erroneous on its

       face” standard in considering a double jeopardy claim raised in a motion to

       correct erroneous sentence); Fulkrod, 855 N.E.2d 1064 (refusing to consider

       appellant’s Blakely claim in a motion to correct erroneous sentence because the

       Court would be required to consider matters beyond the face of the sentencing

       order).


[12]   Twitty cites Lane v. State, 727 N.E.2d 454 (Ind. Ct. App. 2000), in support of his

       argument that the Court must consider his claims, but that case is procedurally

       distinguishable. Lane involved an appeal after resentencing, not a motion to

       correct erroneous sentence, and does not contradict our Supreme Court’s

       holding in Robinson. The trial court did not abuse its discretion in denying

       Twitty’s motion to correct erroneous sentence. The State argues that Twitty’s

       claims are barred by res judicata, or, in the alternative, are waived because they

       could have been raised in post-conviction proceedings. We do not need to

       address the State’s arguments.


[13]   For the foregoing reasons, we affirm the judgment of the trial court.


[14]   Judgment affirmed.


       Baker, J., and Mathias, J., concur.




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