Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
                                                               FILED
                                                             Dec 28 2012, 10:04 am
the defense of res judicata, collateral
estoppel, or the law of the case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court



APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

RICKY JESTER                                        GREGORY F. ZOELLER
Wabash Valley Correctional Facility                 Attorney General of Indiana
Carlisle, Indiana
                                                    JAMES B. MARTIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

RICKY JESTER,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )    No. 82A01-1203-CR-141
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                           The Honorable Carl A. Heldt, Judge
                         The Honorable Kelli E. Fink, Magistrate
                             Cause No. 82C01-9704-CF-360


                                        December 28, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       In 1998, a jury convicted Ricky Jester of murder and conspiracy to commit murder for

fatally shooting his wife Teresa Jester in 1996, and for arranging to have her shot by one of

his friends earlier that same year. The trial court sentenced him to consecutive terms of sixty

years for murder and fifty years for conspiracy. He filed a direct appeal, challenging, among

other issues, the sufficiency of evidence to support both convictions. Our supreme court

affirmed his convictions, and he filed a string of unsuccessful petitions for post-conviction

relief and permission to file a belated appeal. In 2011, he filed a motion for correction of

erroneous sentence, challenging his consecutive terms for murder and conspiracy to commit

murder on double jeopardy grounds. In March 2012, the trial court denied his motion,

finding that his double jeopardy claim was inappropriate for resolution via a motion to

correct erroneous sentence.

       Jester now appeals, asserting that the trial court erred in denying his motion to correct

erroneous sentence. Finding no error, we affirm.

                              Facts and Procedural History

       We adopt our supreme court’s fact summary from Jester’s direct appeal:

               Teresa and Ricky Jester were having marital problems for at least two
       years before Teresa’s murder. Teresa told both Rebecca Blackburn and Judy
       Carr that she thought Jester was having an affair, and that she contemplated
       leaving him. Teresa also told Jeremy Blackburn she believed that Jester was
       having an affair, specifically with Lisa Fisher. Indeed, Lisa Fisher testified at
       trial that such an affair had occurred.

              The week before Teresa’s murder, several people observed altercations
       between Teresa and Jester. Tina Bunker, Teresa’s sister, testified that she saw
       Teresa and Jester arguing two days before Teresa's murder. Sherry Morris also

                                               2
       testified that Jester and Teresa had an argument shortly before Teresa’s murder,
       during which Jester called Teresa a “f---ing bitch.” (R. at 755.)

              About six months or a year before Teresa’s death, Jester befriended
       James Koutz and asked Koutz to kill Teresa. Specifically, Jester told Koutz that
       he would give him $15,000 and a motorcycle to kill her. In February 1995 and
       again in the fall of 1995, Jester asked another friend, Mark Williams, to kill
       Teresa. Jester told Williams that Teresa was going to Louisville for a nursing
       seminar and asked Williams to follow her to Louisville and kill her. Jester gave
       Williams a handgun, and $300, and told him to be sure that Teresa’s body was
       found (for insurance purposes). Jester also assured Williams that he would
       receive an additional $20,000 once the insurance proceeds were distributed.

              Around 1:03 a.m. on July 3, 1996, Jester called the police and told them
       that he had come home to find his wife Teresa dead, lying in a pool of blood.
       Officer Keller arrived at Jester’s home two minutes later to investigate. There
       was no sign of a break-in or an attempted break-in and none of the outbuildings
       showed evidence of entry or attempted entry. An autopsy of her body later
       revealed that she had been shot in the head and neck approximately six times at
       very close range.

               About 1 p.m., the police let Jester back into his home, at which time
       Jester immediately began looking through a group of insurance policies. Later
       that day, Jester also called a car dealership requesting information about
       transferring the title of a recently purchased Jeep Grand Cherokee.

Jester v. State, 724 N.E.2d 235, 237 (Ind. 2000).

       The State charged Jester with murder and class A felony conspiracy to commit

murder, and a jury convicted him as charged. The trial court sentenced him to consecutive

terms of sixty years for murder and fifty years for conspiracy. Our supreme court affirmed

his convictions in 2000.

       In 2001, Jester filed a petition for post-conviction relief, and the trial court granted an

indefinite continuance, eventually denying his petition in 2009. From 2009 to 2011, Jester

filed unsuccessful petitions for post-conviction relief and for permission to file a notice of


                                                3
belated appeal. In November 2011, he filed a motion for correction of erroneous sentence,

claiming that his consecutive sentences for murder and conspiracy amounted to a violation of

his constitutional protection against double jeopardy. In March 2012, the trial court denied

his petition, finding that a motion to correct erroneous sentence was not the proper

procedural vehicle by which to resolve his double jeopardy claim. Jester now appeals.

Additional facts will be provided as necessary.

                                 Discussion and Decision

       Jester contends that the trial court erred in denying his motion for correction of

erroneous sentence. When a person is erroneously sentenced, the error does not render the

sentence void. Ind. Code § 35-38-1-15. Instead, the sentence shall be corrected after written

notice is given to the convicted person. Id. A person seeking to correct his erroneous

sentence must file a motion in writing, supported by a memorandum of law specifically

indicating the defect in the original sentence. Id.

       A motion to correct erroneous sentence is appropriate only when the sentence is

“erroneous on its face.” Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004).

       When claims of sentencing errors require consideration of matters outside the
       face of the sentencing judgment, they are best addressed promptly on direct
       appeal and thereafter via post-conviction relief proceedings where applicable.
       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 …. We
       therefore hold 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. Claims that require consideration of
       the proceedings before, during, or after trial may not be presented by way of a
       motion to correct sentence.


                                              4
Id. at 787. In other words, use of a motion to correct erroneous sentence should be reserved for

the correction of “obvious sentencing errors.” Godby v. State, 976 N.E.2d 1235, 1236 (Ind. Ct.

App. 2012).

        Here, the sentencing judgment is not facially erroneous. Instead, it simply lists

Jester’s convictions and states that the fifty-year term for class A felony conspiracy is to run

consecutive to the sixty-year term for murder. Both terms are within the allowable

sentencing ranges for such offenses. See Ind. Code § 35-50-2-3 (listing forty-five- to sixty-

five-year sentencing range for murder); Ind. Code § 35-50-2-4 (listing twenty- to fifty-year

sentencing range for class A felony). Moreover, the trial court had the discretion to enter the

sentences consecutively. Ind. Code § 35-50-1-2. Any determination concerning double

jeopardy would require resort to matters outside the face of the judgment. In other words, the

inquiry would involve delving into the evidence to determine whether the murder itself was

an act separate and distinct from the conspiracy to commit murder.1 Such an inquiry is not

allowed in cases involving a motion to correct erroneous sentence.2 Thus, the trial court did

not err in denying Jester’s motion for correction of erroneous sentence.


        1
           Article I, Section 14 of the Indiana Constitution states that “No person shall be put in jeopardy twice
for the same offense.” Ordinarily, “[t]wo or more offenses are the same offense if with respect to either the
statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential element of another challenged offense.” Lee v. State, 892
N.E.2d 1231, 1233 (Ind. 2008) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Where the
challenged offenses are conspiracy to commit an underlying act and the underlying act itself, what is at stake is
assuring that the conspiracy, which requires an agreement and an overt act in furtherance of the agreement, is
“a separate and distinct act from the underlying crime.” Richardson, 717 N.E.2d at 56 (Sullivan, J.,
concurring).
        2
          Even if the trial court had been permitted to resort to matters outside the face of the judgment, the
evidence in this case simply would not support a finding of double jeopardy, where Jester asked Williams to
murder his wife (giving him money and a gun) and, in a separate and distinct act, killed her himself several
months later.

                                                        5
      Accordingly, we affirm.

      Affirmed.

KIRSCH, J., and MATHIAS, J., concur.




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