      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                  Mar 06 2015, 9:40 am
      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.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Marshall Barnes-Bey                                      Gregory F. Zoeller
      New Castle, Indiana                                      Attorney General of Indiana
                                                               Katherine Modesitt Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Marshall Barnes-Bey,                                     March 6, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A03-1409-CR-313
              v.
                                                               Appeal from the Lake Superior
      State of Indiana,                                        Court
                                                               Honorable Samuel L. Cappas, Judge
      Appellee-Plaintiff.
                                                               Case No. 45G04-8810-CF-315




      Robb, Judge.



                                 Case Summary and Issue
[1]   Marshall Barnes-Bey appeals from the denial of his Motion to Correct

      Erroneous Sentence, raising one issue for review: whether the trial court

      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015       Page 1 of 7
      abused its discretion in denying his motion to correct erroneous sentence.

      Concluding the trial court did not abuse its discretion, we affirm.



                        Facts and Procedural History
[2]   In 1988, Barnes-Bey and an accomplice broke into a family home. Barnes-Bey

      forced the wife to perform oral sex on him and then raped her, with the children

      possibly in view and the husband able to hear. He then stole jewelry, money,

      and a shotgun before leaving the house.


[3]   Barnes-Bey was charged with Count 1, burglary, a Class B felony; Count 2,

      criminal deviate conduct, a Class A felony; and Count 3, rape, a Class A

      felony. A jury found him guilty of all three counts. The trial court ordered a

      sentence of forty years each for Count 2 and Count 3, to be served concurrently,

      and fifteen years for Count 1, to be served consecutively to Counts 2 and 3,

      resulting in an aggregate sentence of fifty-five years. Barnes-Bey’s convictions

      and sentence were affirmed by this court on direct appeal. See Appendix at 29.


[4]   On July 21, 2014, Barnes-Bey filed a Motion to Correct Erroneous Sentence

      alleging the trial court lacked statutory authority to impose consecutive

      sentences. On July 24, 2014, the trial court denied that motion “for the reason

      that a motion to correct erroneous sentence may only be used to attack a

      sentence that is invalid on its face. The sentence in this case is not erroneous on

      its face.” Id. at 6. Barnes-Bey now appeals the denial of his Motion to Correct

      Erroneous Sentence.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015   Page 2 of 7
                            Discussion and Decision
                                 I. Standard of Review
[5]   A defendant may file a motion to correct erroneous sentence pursuant to

      Indiana Code section 35-38-1-15:

              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

      omitted). It is an appropriate remedy only when the sentencing error is “clear

      from the face of the judgment imposing the sentence in light of the statutory

      authority.” Id. at 787. “Claims that require consideration of the proceeding

      before, during, or after trial may not be presented by way of a motion to correct

      sentence,” Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct. App. 2010), trans. denied,

      but should be addressed on direct appeal or through post-conviction relief,

      Robinson, 805 N.E.2d at 787. A motion to correct erroneous sentence is a

      narrow remedy, and a reviewing court will strictly apply the facially erroneous

      standard. Id.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015   Page 3 of 7
           II. Authority to Impose Consecutive Sentences
[6]   A trial court must sentence a defendant within statutorily prescribed limits, and

      any sentence that is contrary to or violates the penalty mandated by statute is an

      illegal sentence subject to correction at any time. Ben-Yisrayl v. State, 908

      N.E.2d 1223, 1228 (Ind. Ct. App. 2009), trans. denied. Barnes-Bey claims that

      his sentence is erroneous because the trial court exceeded its statutory authority

      in ordering him to serve consecutive sentences.


                     A. Mandatory Consecutive Sentences
[7]   The trial court’s authority to impose consecutive or concurrent sentences is

      found in Indiana Code section 35-50-1-2. Since Barnes-Bey committed his

      crimes in 1988, his sentence is governed by the statutes in effect at that time.

      Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008). Indiana Code section 35-50-

      1-2 stated:

              (a) Except as provided in subsection (b), the court shall determine
              whether terms of imprisonment shall be served concurrently or
              consecutively.
              (b) If, after being arrested for one (1) crime, a person commits another
              crime:
                  (1) before the date the person is discharged from probation, parole,
                  or a term of imprisonment imposed for the first crime; or
                  (2) while the person is released:
                      (A) upon the person’s own recognizance; or
                      (B) on bond;
              the terms of imprisonment for the crimes shall be served consecutively,
              regardless of the order in which the crimes are tried and sentences are
              imposed.
      Ind. Code § 35-50-1-2 (1988).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015   Page 4 of 7
[8]   Barnes-Bey claims Indiana Code section 35-50-1-2(b) precluded the trial court

      from ordering consecutive sentences, asserting that he did not meet any of the

      prerequisites under subsection (b) at the time of his offenses. Whether he did or

      did not meet any of those conditions—and he has not provided a record

      sufficient for us to know—Barnes-Bey misreads the statute. Subsection (b) was

      merely an exception to the general authority under Indiana Code section 35-50-

      1-2(a) for the trial court to determine whether to order sentences to be served

      consecutively, not the exclusive means by which a trial court could impose

      consecutive sentences. In other words, if the conditions of subsection (b) were

      satisfied, the trial court had to impose consecutive sentences; in all other cases,

      the trial court could order consecutive sentences.


[9]   The statute clearly placed discretion with the trial court to decide whether

      sentences for multiple crimes should be served as consecutive or concurrent

      terms unless subsection (b) mandated consecutive terms. The trial court had

      the authority to impose concurrent or consecutive sentences as long as the

      “determination was based upon the consideration of the facts of the specific

      crimes, the aggravating and mitigating circumstances involved, and the relation

      of the sentence imposed to the objectives which will be served by that

      sentence.” Shippen v. State, 477 N.E.2d 903, 905 (Ind. 1985). In reviewing a

      motion to correct erroneous sentence, however, we may not look into the

      reasons why the trial court imposed consecutive sentences as that would be

      looking beyond the face of the judgment. Because Barnes-Bey’s sentence was

      within the authority granted to the trial court under Indiana Code section 35-


      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015   Page 5 of 7
       50-1-2(a) to impose consecutive sentences, the judgment is not erroneous on its

       face on this basis.


                     B. Single Episode of Criminal Conduct
[10]   Barnes-Bey also claims that the court lacked statutory authority to impose

       consecutive sentences for his three felony convictions because they all arose

       from “a single episode of criminal conduct.” Brief of Appellant at 8.


[11]   Although currently, Indiana Code section 35-50-1-2 limits the total of

       consecutive sentences in certain instances where multiple crimes arise out of an

       episode of criminal conduct, the statute as enacted at the time of Barnes-Bey’s

       criminal proceedings did not include any such restriction. The statute was

       amended in 1994 “to impose a previously nonexistent limitation on a trial

       court’s discretion to impose consecutive sentences.” Jennings vs. State, 687

       N.E.2d 621, 622 (Ind. Ct. App. 1997). Since Barnes-Bey was sentenced in

       1989, the trial court could not have violated a restriction on consecutive

       sentencing that did not exist at the time. Moreover, we note that even if the

       limitation did apply, Barnes-Bey was convicted of crimes which are defined as

       crimes of violence and are therefore not subject to the limitation. Because the

       limitation does not apply to Barnes-Bey, the sentence is not facially erroneous

       for this reason.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015   Page 6 of 7
                                          Conclusion
[12]   The sentence was not clearly erroneous on its face as it was within the trial

       court’s discretion to impose consecutive sentences under Indiana Code section

       35-50-1-2. The trial court did not abuse its discretion in denying Barnes-Bey’s

       motion to correct erroneous sentence.


[13]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-313| March 6, 2015   Page 7 of 7
