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
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                                   LISA DIANE MANNING
Attorney General of Indiana                          Manning Law Office
                                                     Danville, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana                                                    Jul 26 2013, 8:26 am




                               IN THE
                     COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                    )
                                                     )
       Appellant-Plaintiff,                          )
                                                     )
               vs.                                   )     No. 32A01-1304-CR-136
                                                     )
ADRIAN LOTAKI,                                       )
                                                     )
       Appellee-Defendant.                           )


                     APPEAL FROM THE HENDRICKS SUPERIOR COURT
                         The Honorable Stephenie LeMay-Luken, Judge
                                Cause No. 32D05-1101-FD-29



                                           July 26, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                             Case Summary

        While incarcerated, Adrian Lotaki struck and injured a prison employee. He was

convicted of class D felony battery and was sentenced to 1095 days, to run consecutive to the

sentence for which he was already incarcerated. At sentencing, the trial court awarded him

471 days for actual time served and 471 days as credit for time served.

        The State filed numerous motions challenging the 471 days that Lotaki received for

actual time served, since he was already serving time for his previous crime. The State now

appeals the trial court’s denial of its most recent motion to correct erroneous sentence.

Finding that the State is not authorized to bring this appeal, we dismiss.1 We also grant

Lotaki’s motion to strike cited portions of the State’s appellant’s appendix and brief in an

order issued simultaneously with this decision.2

                                   Facts and Procedural History

        In September 2010, while serving a fifteen-year sentence for a 2005 class B felony

criminal deviate conduct conviction, Lotaki committed battery upon an employee of the

Indiana Department of Correction (“DOC”). He was subsequently convicted of class D

felony battery resulting in injury and sentenced to 1095 days, to be served consecutive to his


        1
         Lotaki filed a motion to dismiss this appeal, which the motions panel of this Court held in abeyance
pending a decision by this panel.
        2
           The motions panel of this Court also held in abeyance Lotaki’s motion to strike certain designated
portions of the State’s appendix that were never admitted as evidence or otherwise included in any trial or
appellate record. We grant Lotaki’s motion to strike and order that the Department of Corrections (“DOC”)
report that was included on pages 61 through 63 of the appendix be so stricken. We also order stricken the
portions of the State’s brief that reference the stricken DOC document and credit being earned in his criminal
deviate conduct cause. Appellant’s Br. at 4, 5 n.4. Finally, we note that the State has failed to properly
paginate its brief as required under Indiana Appellate Rule 43(F).


                                                      2
sentence in the criminal deviate conduct cause. When calculating his presentencing days

actually served in the battery cause and the credit he was to receive based on the time served,

the trial court awarded him time served of 471 days plus 471 days’ credit.3

        Thereafter, the State filed numerous motions, including two motions to reconsider

sentence and two motions to correct erroneous sentence, claiming that Lotaki was given

double credit because he was already incarcerated and getting credit for actual time served on

the criminal deviate conduct cause when he committed the instant battery.4 The trial court

denied the State’s motions to reconsider sentence and did not rule on its first motion to

correct erroneous sentence. The State now appeals the trial court’s denial of its most recent

motion to correct erroneous sentence. Lotaki filed appellate motions to dismiss this appeal

and to strike certain portions of the State’s appellant’s appendix and brief. Additional facts

will be provided as necessary.

                                         Discussion and Decision

        The State challenges the trial court’s denial of its motion to correct erroneous

sentence. We review a trial court’s ruling on a motion to correct erroneous sentence only for

an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012). An abuse




        3
          Indiana inmates earn class I credit when imprisoned awaiting trial or sentencing. Ind. Code § 35-50-
6-4(a). Class I credit means that an inmate earns one additional day off a sentence for each day actually served.
 Ind. Code § 35-50-6-3(a).
        4
           The chronological case summary (“CCS”) indicates that the State initiated an appeal on June 4,
2012, but the record is devoid of any evidence regarding the disposition. It was filed in the midst of the State’s
other repeated filings in the trial court, all of which addressed the same issue: Lotaki’s credit for presentencing
time served.

                                                        3
of discretion occurs where the trial court’s decision is against the logic and effect of the facts

and circumstances before it. Id.

        The State asserts that Lotaki’s sentence is erroneous because he received double credit

for time actually served before sentencing. In its motion to correct erroneous sentence, the

State relied on Corn v. State, 659 N.E.2d 554 (Ind. 1995). In that case, Corn was serving a

sentence on an unrelated charge when he took part in a jail takeover and was convicted of

nine felonies related to the incident. As required by statute, he was sentenced to a term

consecutive to the prior sentence. Ind. Code § 35-50-1-2(b). He appealed, claiming that the

trial court erred in denying him credit time for the days spent in prison awaiting trial on the

new charges. Our supreme court affirmed the trial court’s denial of credit time for those days

because Corn committed the new offenses while he was serving time for the prior unrelated

offense, and he was subject to mandatory consecutive sentencing. In Diedrich v. State, 744

N.E.2d 1004 (Ind. Ct. App. 2001), another panel of this Court, relying on our supreme

court’s holding in Corn, held that in cases involving mandatory consecutive sentences, the

defendant is entitled to only one credit for the period of incarceration in question. Id. at

1007.

        Here, Lotaki was serving consecutive sentences as required by statute. Thus, he was

entitled to only one credit for time served. He was already in prison serving his sentence for

criminal deviate conduct when he committed battery on a DOC employee, and as such, he

was earning credit time for the prior unrelated offense during the interim between the

charging date and sentencing date for the new offense. Thus, his sentence was illegal.


                                                4
However, in denying the State’s motion to correct erroneous sentence, the trial court found

that the State failed to follow proper procedure for challenging the legality of Lotaki’s

sentence.

       The State challenged Lotaki’s sentence by filing two motions to reconsider and two

motions to correct erroneous sentence. The appealed order in this case is the trial court’s

March 12, 2013 order denying the State’s second motion to correct erroneous sentence. With

respect to such challenges, Indiana Code Section 35-38-1-15 states,

       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 v. State, 805

N.E.2d 783, 785 (Ind. 2004) (citation and internal quotation marks omitted).

       In Robinson, our supreme court discussed the avenues available for challenging

sentencing errors:

       When an error related to sentencing occurs, it is in the best interests of all
       concerned that it be immediately discovered and corrected. Other than an
       immediate motion to correct sentence, such errors are best presented to the trial
       court by the optional motion to correct error under Indiana Trial Rule 59, or
       upon a direct appeal from the final judgment of the trial court pursuant to
       Indiana Appellate Rule 9(A). Thereafter, for claims not waived for failure to
       raise them by direct appeal, a defendant may seek recourse under Indiana Post–
       Conviction Rule 1, § 1(a)(3) by claiming “that the sentence exceeds the
       maximum authorized by law, or is otherwise erroneous.” As noted above,
       however, we have recognized the statutory motion to correct sentence as an


                                              5
        alternate remedy. A trial court’s ruling on a motion to correct sentence is
        subject to appeal by normal appellate procedures.

               While the motion to correct sentence is available as an alternate remedy,
        we have repeatedly cautioned that it is appropriate only when the sentence is
        “erroneous on its face.” We acknowledge that some of our decisions may not
        have rigorously applied the “erroneous on its face” standard ….

                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, notwithstanding [a few cases in which the standard was less
        rigorously 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.

Id. at 786-87 (emphases added) (citations and footnotes omitted).

        We find no error on the face of Lotaki’s sentencing judgment. Instead, the order

simply lists the conviction for class D felony battery, the total sentence of 1095 days in the

DOC, the days of actual and good time credit (471 and 471), and the fact that he was

sentenced to “straight time” with zero days suspended. Appellant’s App. at 16. Nothing in

the document mentions his previous conviction for criminal deviate conduct or the fact that

his sentence would run consecutive to his sentence in that cause. The abstract of judgment

lists the actual and good time credit days and indicates that his 1095-day sentence shall run

consecutive to “71D02-0509-FB-123”.               Id. at 18.5     This document does not list the


        5
          71D02-0509-FB-123 is the cause number for Lotaki’s criminal deviate conduct conviction.
However, “a motion to correct sentence is not available to challenge entries or omissions in an abstract of
judgment.” Robinson, 805 N.E.2d at 794-95.

                                                    6
commission dates of the offenses or the expected release dates.6 Simply put, the credit time

error is not a facial error.

        Moreover, this appeal is procedurally askew in that sentencing appeals are initiated by

defendants. In contrast, here, the State initiated the appeal of Lotaki’s sentence.7 Indiana

Code Section 35-38-4-2 specifies the limited circumstances in which the State is permitted to

file an appeal:

        (1) From an order granting a motion to dismiss an indictment or information.

        (2) From an order or judgment for the defendant, upon his motion for
        discharge because of delay of his trial not caused by his act, or upon his plea of
        former jeopardy, presented and ruled upon prior to trial.

        (3) From an order granting a motion to correct errors.

        (4) Upon a question reserved by the state, if the defendant is acquitted.

        (5) From an order granting a motion to suppress evidence, if the ultimate effect
        of the order is to preclude further prosecution.

        (6) From any interlocutory order if the trial court certifies and the court on
        appeal or a judge thereof finds on petition that:

               (A) the appellant will suffer substantial expense, damage, or injury if
        the order is erroneous and the determination thereof is withheld until after
        judgment;

              (B) the order involves a substantial question of law, the early
        determination of which will promote a more orderly disposition of the case; or

                (C) the remedy by appeal after judgment is otherwise inadequate.

        6
          Interestingly, Lotaki’s projected release dates are contained only in the DOC document stricken from
the record pursuant to Lotaki’s motion to strike.
        7
         Although the CCS is unclear regarding the disposition of the State’s June 2012 appeal, the State
acknowledges that such an “appeal was improper under Indiana Appellate Rule 7(A).” Appellant’s Br. at 2
n.1.

                                                      7
With respect to appealing a defendant’s sentence, Indiana Appellate Rule 7(A) provides,

“The State may not initiate an appeal of a sentence, but may cross-appeal where provided by

law.” We find no statutory authority for the State to have filed the present appeal, and it is on

that basis that we grant Lotaki’s motion to dismiss.

       The State argues that it is entitled to relief based on the illegality of the sentence.

Lotaki argues (in the alternative to dismissal) that the trial court acted within its discretion in

denying the State’s motion to correct erroneous sentence. Both parties rely on Hardley v.

State, 905 N.E.2d 399 (Ind. 2009). In Hardley, our supreme court held that the timing

requirements for initiating appeals from final judgments under Indiana Appellate Rule 9(A)

do not require the State to challenge an illegal sentence within thirty days of a final judgment.

Id. at 403. In Hardley, the State did not file a statutory motion to correct erroneous sentence,

but instead challenged the legality of Hardley’s sentence via a cross-appeal filed after the

thirty-day time limit for filing direct appeals. Our supreme court held that the cross-appeal

challenge was allowable and noted that such challenges may be filed even after a post-

conviction proceeding. See Id. (citing Robinson, 805 N.E.2d at 788). Curiously, after

holding that the State’s appellate challenge was tantamount to a motion to correct erroneous

sentence, the Hardley majority concluded that such a challenge is not limited to facially

erroneous sentences but is also proper when the issue is a pure question of law and does not

require resort to evidence outside the appellate record. Id. at 404. To the extent that the

Hardley majority seemingly draws no distinction between those sentences where the

illegality can be determined by mere reference to the face of the judgment and those

                                                8
requiring the reviewing court to delve into other documents in search of evidence of

illegality, we respectfully find the decision to be internally ambiguous and not in keeping

with the clear mandate of Robinson that “the ‘facially erroneous’ prerequisite should

henceforth be strictly applied.” Robinson, 805 N.E.2d at 787.

       Notwithstanding, this case is procedurally distinguishable from Hardley. In Hardley,

the State raised the erroneous sentence issue by filing a cross-appeal. The State did not do so

here; neither did it object when the trial court announced Lotaki’s credit time during

sentencing nor file a motion to correct error nor perfect an appeal thereafter. Also, the State

did not (by motion to correct error or otherwise) initiate any challenge to the trial court’s

denial of its two motions to reconsider Lotaki’s sentence, both of which addressed the issue

of credit for actual time served. In short, there is no facial error here, and the State’s attempts

to re-characterize the error are unavailing. In other words, this apple has been devoured.

Accordingly, we grant Lotaki’s motion to dismiss this appeal.

       Dismissed.

ROBB, C.J., and FRIEDLANDER, J., concur.




                                                9
