MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Feb 11 2019, 9:58 am

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


ATTORNEY PRO SE                                          ATTORNEYS FOR APPELLEE
Charles Peete                                            Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles N. Peete,                                        February 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2025
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Plaintiff.                                      Bowers, Judge
                                                         Trial Court Cause No.
                                                         20D02-1610-F4-51




Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2025 | February 11, 2019                Page 1 of 4
                                             Case Summary
[1]   Charles Peete appeals the trial court’s denial of his motion to correct erroneous

      sentence. We affirm.


                                                     Issue
[2]   Peete raises one issue, which we restate as whether the trial court properly

      denied his motion to correct erroneous sentence.


                                                     Facts
[3]   In October 2016, the State charged Peete with burglary, a Level 4 felony, and

      alleged that Peete was a habitual offender. In support of the habitual offender

      allegation, the State relied on a 2013 conviction for fraud, a Class D felony, and

      a 2002 conviction for burglary, a Class C felony. A jury found Peete guilty of

      burglary, and he admitted to being a habitual offender. The trial court

      sentenced Peete to twelve years for burglary enhanced by fifteen years for his

      status as a habitual offender. On direct appeal, Peete challenged his sentence,

      and we affirmed. See Peete v. State, No. 20A03-1704-CR-807, slip op. at 1 (Ind.

      Ct. App. Sept. 6, 2017).

[4]   On July 20, 2018, Peete filed a motion to correct erroneous sentence

      challenging the appropriateness of the prior felonies used to support his habitual

      offender status. The trial court denied Peete’s motion. Peete now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2025 | February 11, 2019   Page 2 of 4
                                                        Analysis
[5]   Peete challenges the trial court’s denial of his motion to correct erroneous

      sentence. We review rulings on motions to correct erroneous sentence for an

      abuse of discretion, which occurs when a decision is against the logic and effect

      of the facts and circumstances before the trial court. Davis v. State, 978 N.E.2d

      470, 472 (Ind. Ct. App. 2012). An inmate who believes he or she has been

      erroneously sentenced may file a motion to correct sentence under Indiana

      Code Section 35-38-1-15. Neff v. State, 888 N.E.2d 1249, 1250-51 (Ind. 2008).

      Such motions may only be used to attack a sentence that is “erroneous on its

      face.” Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004). Alleged sentencing

      errors that require consideration of matters outside the face of the sentencing

      judgment can only be attacked via direct appeal or, when appropriate, petitions

      for postconviction relief, and not via motions to correct erroneous sentence. Id.

      at 787. “Claims that require consideration of the proceedings before, during, or

      after trial may not be presented by way of a motion to correct sentence.” Id.


[6]   On appeal, Peete argues that, under Indiana Code Section 35-50-2-8(b), he

      could not be a habitual offender because one of his prior felony convictions was

      a Class D felony.1 The State argues that Peete’s motion to correct erroneous




      1
          Indiana Code Section 35-50-2-8(b) provides:
               A person convicted of murder or of a Level 1 through Level 4 felony is a habitual offender if the
               state proves beyond a reasonable doubt that:
               (1) the person has been convicted of two (2) prior unrelated felonies; and



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2025 | February 11, 2019                    Page 3 of 4
      sentence was not a facial attack upon his sentencing order and, thus, was not

      permitted by Robinson. We agree. Resolution of the motion would require

      delving into matters outside the face of the sentencing order, in particular, the

      propriety of the prior felonies used to support his habitual offender status. We

      conclude that a motion to correct erroneous sentence was not the proper vehicle

      for Peete’s arguments regarding his habitual offender status. See Murfitt v. State,

      812 N.E.2d 809, 811 (Ind. Ct. App. 2004) (holding Robinson barred defendant’s

      motion to correct erroneous sentence that challenged the amount of time

      defendant had spent in confinement prior to sentencing). If Peete desires to

      raise this issue, he must do so through a petition for post-conviction relief. See

      Robinson, 805 N.E.2d at 787.


                                                      Conclusion
[7]   The trial court properly denied Peete’s motion to correct erroneous sentence.

      We affirm.

[8]   Affirmed.


      Baker, J., and May, J., concur.




            (2) at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony.
      (emphasis added).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2025 | February 11, 2019                         Page 4 of 4
