                                                                  FILED
MEMORANDUM DECISION
                                                             Jun 30 2016, 8:39 am

Pursuant to Ind. Appellate Rule 65(D),                            CLERK
                                                              Indiana Supreme Court
this Memorandum Decision shall not be                            Court of Appeals
                                                                   and Tax Court
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
Artie Thomas                                             Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Artie Thomas,                                            June 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1512-CR-2303
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Linda Ralu Wolfe,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         18D01-9911-CF-90



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2303 | June 30, 2016   Page 1 of 7
[1]   Artie Thomas (“Thomas”), pro se, appeals the trial court’s denial of his motion

      to correct erroneous sentence. Thomas argues that the trial court abused its

      discretion in denying his motion to correct erroneous sentence.


[2]   We affirm.

                                      Facts and Procedural History


[3]   The underlying facts of this case were set forth in our supreme court’s earlier

      opinion in Thomas’s direct appeal as follows:

              The facts most favorable to the judgment indicate the following.
              On the night of October 30, 1999, a local chapter of Kappa Alpha
              Psi Fraternity held a fundraiser at a local YWCA. After the
              fundraiser, there was a party at the house of a few of the
              fraternity members (“Kappa house”). Defendant and seven or
              eight of his friends went to the Kappa house, but were turned
              away at the door. They were told that the party was full and it
              was only for Kappa members. Defendant and his friends
              exchanged words with the Kappas and finally left the party.
              Upon leaving, Defendant said, “we'll be back and you better have
              the police here.”


              As the group left the party they split up into separate groups.
              Defendant said he was “going to the hood to get his [gun].” (R.
              at 929.) One of Defendant’s friends, Terrence Manley, said, “I
              ain’t go to do nothing but go down the street.” (R. at 929.)
              Another member of the group, Tyrone Mason, took Louis
              Abrams to get Abrams’s gun.


              The group met up again in the parking lot of a store near the
              Kappa house. Defendant, Michael Bruno, Abrams, and Manley
              had guns. The group parked their cars on a dark residential street

      Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2303 | June 30, 2016   Page 2 of 7
              so as not to be seen. They walked toward the back of the Kappa
              house. At some point, someone said, “let’s do this shit,” and
              Defendant, Manley, Bruno, and Abrams began shooting into the
              house. Four people were shot. One victim, Julian Brown, died
              and three other women were injured.


              The State charged Defendant with three counts of criminal
              recklessness resulting in serious bodily injury, a class C felony,
              Conspiracy to Commit Murder, a class A felony, and Murder.
              The jury found Defendant guilty on all counts. The trial court
              sentenced Defendant to consecutive sentences of eight years for
              each criminal recklessness count and sixty years for the murder.
              The court imposed the sentence for conspiracy to commit murder
              concurrent to the other counts for a total sentence of 84 years of
              incarceration.


      Thomas v. State, 774 N.E.2d 33, 34 (Ind. 2002).


[4]   On direct appeal, Thomas argued that the trial court abused its discretion in

      responding to a jury question. On August 27, 2002, our supreme court affirmed

      Thomas’s sentence. Thomas then filed a pro se motion to correct erroneous

      sentence on October 15, 2015, which the trial court denied on November 25,

      2015. Thomas now appeals.

                                         Discussion and Decision


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

      an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010).

      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.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2303 | June 30, 2016   Page 3 of 7
[6]   An inmate who believes he has been erroneously sentenced may file a motion

      to correct the sentence under 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.


[7]   A statutory motion to correct erroneous 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. Robinson v. State, 805 N.E.2d 783,

      787 (Ind. 2004). “Such claims may be resolved by considering only the face of

      the judgment and the applicable statutory authority without reference to other

      matters in or extrinsic to the record.” Fulkrod v. State, 855 N.E.2d 1064, 1066

      (Ind. Ct. App. 2006). If a claim requires consideration of the proceedings

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

      correct sentence. Id. Such claims are best addressed on direct appeal or by way

      of petition for post-conviction relief. Robinson, 805 N.E.2d at 787.


[8]   Here, Thomas claims that the trial court erred by denying his motion to correct

      erroneous sentence. He argues that the trial court abused its statutory authority

      by ordering him to serve an aggregate twenty-four-year sentence, which

      included eight years for each Class C felony criminal recklessness conviction to

      be served consecutively.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2303 | June 30, 2016   Page 4 of 7
[9]    A trial court has the discretion to impose sentences consecutively if aggravating

       circumstances warrant. See Ind. Code § 25-38-1-7.1. Thomas was sentenced

       under Indiana Code section 35-50-1-2(c) (2) (1997) which provides:


               Except for statutory crimes of violence, “the total of the
               consecutive terms of imprisonment. . . to which the defendant is
               sentenced for felony convictions arising out of an episode of
               criminal conduct shall not exceed the advisory sentence for a
               felony which is one (1) class of felony higher than the most
               serious of the felonies for which the person has been convicted.”


       Indiana Code section 35-50-1-2(a) specifically provides the offenses

       considered to be crimes of violence and criminal recklessness is not

       designated as such.


[10]   To address Thomas’s claims, we must determine: (1) whether Thomas’s crimes

       were among the statutorily defined crimes of violence, and (2) whether his

       convictions arose out of an episode of criminal conduct. Thomas contends that

       because criminal recklessness was not included as a “crime of violence” under

       Indiana Code section 35-50-1-2(a) as it existed at the time his crimes were

       committed that the maximum sentence that the trial court should have ordered

       him to serve is ten years, the presumptive sentence for a Class B felony.

[11]   While we agree with Thomas’s contention that criminal recklessness did not

       constitute a crime of violence under Indiana Code section 35-50-1-2(a) at the

       time his crimes were committed, we cannot determine whether Thomas’s

       crimes arose out of an episode of criminal conduct without looking outside the


       Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2303 | June 30, 2016   Page 5 of 7
       face of the sentencing order. Although Thomas was charged for all crimes

       under the same cause number, this is not dispositive of whether his crimes arose

       out of an episode of criminal conduct. In determining whether multiple offenses

       constitute one episode of criminal conduct, we must look to the timing of the

       offenses and the simultaneous and contemporary nature, if any, of the crimes.

       Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (citing Reed v. State, 856

       N.E.2d 1189, 1200 (Ind. 2006)). Courts also consider whether the alleged

       conduct was so closely related in time, place, and circumstance that a complete

       account of one charge cannot be related without referring to the details of the

       other charge. Id.


[12]   We cannot consider any of these factors without looking at the facts and

       circumstances supporting Thomas’s convictions. Said differently, we cannot

       conclude from the face of the sentencing order and the relevant statutory

       authority that Thomas’s sentence is erroneous. A motion to correct erroneous

       sentence is not the appropriate means to present Thomas’s claims of sentencing

       error. See Robinson, 805 N.E.2d at 787. Therefore, the trial court properly denied

       Thomas’s motion to correct erroneous sentence.


[13]   Thomas alternatively argues that even if our court determines that his aggregate

       twenty-four-year consecutive sentence for three criminal recklessness

       convictions was not facially erroneous, we should look to his companion case,

       Bruno v. State, 774 N.E.2d 880, 883-84 (Ind. 2002) for guidance. In Bruno,

       Thomas’s co-defendant’s sentence was revised on appeal from an aggregate

       eighteen-year consecutive sentence for three Class C criminal recklessness

       Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2303 | June 30, 2016   Page 6 of 7
       felonies to a presumptive Class B felony ten-year sentence under Indiana Code

       section 35-50-1-2. Although Bruno’s situation may seem identical to Thomas’s

       situation, it differs because Bruno appropriately raised the sentencing issue on

       direct appeal. Further, by considering Thomas’s alternative argument, we

       would again be required to look at more than the face of the sentencing order,

       which we cannot do in reviewing the trial court’s denial of a motion to correct

       erroneous sentence.


[14]   We conclude that the trial court did not abuse is discretion in denying

       Thomas’s motion to correct erroneous sentence because his claim of sentencing

       error requires consideration of matters beyond the face of the sentencing order.

[15]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2303 | June 30, 2016   Page 7 of 7
