MEMORANDUM DECISION
                                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                             Feb 02 2018, 5:31 am
this Memorandum Decision shall not be                                                     CLERK
regarded as precedent or cited before any                                           Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court
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
Kevin L. Govan                                           Curtis T. Hill, Jr.
Westville, Indiana                                       Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin L. Govan,                                          February 2, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1708-CR-1946
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-0411-FB-196



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1708-CR-1946 | February 2, 2018         Page 1 of 5
                                             Case Summary
[1]   Kevin Govan appeals the denial of his motion to correct erroneous sentence.

      Finding no error, we affirm.



                              Facts and Procedural History
[2]   In 2005, Govan was convicted of two counts of Class B felony criminal

      confinement. The trial court sentenced Govan to fifteen years on each count

      and ordered that each sentence be “enhanced by 5 years,” Appellant’s App.

      Vol. II p. 2, pursuant to Indiana Code section 35-50-2-11, which allows for

      sentence enhancements for certain offenses (including Class B felony criminal

      confinement) where a defendant “used a firearm in the commission of the

      offense.” The court ordered the resulting sentences on the two counts (twenty

      years each) to run consecutive to one another, for a total of forty years. In

      August 2017, Govan filed a motion to correct erroneous sentence, claiming that

      the trial court erred in imposing the firearm enhancements. The trial court

      denied the motion, and Govan now appeals.1




      1
        When Govan filed his motion to correct erroneous sentence, he also filed a “Petition for Earned Additional
      Good Time Jail Credit.” He pointed out that his Judgment of Conviction indicates the amount of time he
      spent in jail before sentencing (221 days) but not the amount of “good time” credit he is entitled to as a result
      of having spent that time in jail (an additional 221 days, for a total of 442 days). He argued that this omission
      violates Indiana Code section 35-38-3-2(b)(4), which at the time of his sentencing in 2005 provided that a
      judgment of conviction must include “the amount of credit, including credit time earned, for time spent in
      confinement before sentencing.” Govan asked the trial court to “correct” the judgment accordingly.
      Appellant’s App. Vol. II p. 20. The trial court also denied this petition, and Govan raised the issue in his
      opening brief in this appeal. In its appellee’s brief, the State notes that our Supreme Court rejected the same
      claim in Robinson v. State, explaining: “Sentencing judgments that report only days spent in pre-sentence
      confinement and fail to expressly designate credit time earned shall be understood by courts and by the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-CR-1946 | February 2, 2018              Page 2 of 5
                                  Discussion and Decision
[3]   Govan contends that the trial court erred by denying his motion to correct

      erroneous sentence. A trial court can grant a motion to correct erroneous

      sentence only where an error is “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). “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.


[4]   Govan asserts that the trial court should have granted his motion for three

      reasons, all relating to the firearm enhancements. We disagree.


[5]   First, Govan argues that the trial court erred by stating in the judgment that

      each of his fifteen-year sentences for criminal confinement are to be “enhanced

      by 5 years” (thereby incorporating the firearm enhancements into the

      confinement sentences) instead of stating that the five-year enhancements are

      separate terms that are to run “consecutive” to the confinement sentences. He

      relies on Indiana Code section 35-50-1-2(f) (formerly subsection (e)), which

      provides: “If the factfinder determines under [Section 35-50-2-11] that a person

      used a firearm in the commission of the offense for which the person was



      Department of Correction automatically to award the number of credit time days equal to the number of pre-
      sentence confinement days.” 805 N.E.2d 783, 792 (Ind. 2004). The Court added that “the omission of
      designation of the statutory credit time entitlement is thus corrected by this presumption[.]” Id. Based on
      Robinson, the State argues that the trial court did not err by denying Govan’s petition to have the judgment
      “corrected.” In his reply brief, Govan did not respond to the State’s argument or otherwise address the
      credit-time issue. We agree with the State and affirm the trial court’s denial of Govan’s petition.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-CR-1946 | February 2, 2018          Page 3 of 5
      convicted, the term of imprisonment for the underlying offense and the

      additional term of imprisonment imposed under [Section 35-50-2-11] must be

      served consecutively.” (Emphasis added). While Govan is arguably correct

      that Section 35-50-1-2(f) required the trial court to state in the judgment that the

      firearm enhancements are to run consecutive to the sentences for criminal

      confinement, he has not told us how he has been harmed by the trial court’s

      failure to do so, nor has he told us how he would, or could, benefit from the

      judgment being amended. “We will not reverse based on a harmless error.”

      Henriquez v. State, 58 N.E.3d 942, 944 (Ind. Ct. App. 2016), trans. denied; see also

      Ind. Appellate Rule 66(A); North v. State, 406 N.E.2d 657, 661 n.11 (Ind. Ct.

      App. 1980) (“[W]here the purpose and intent of a statutory mandate are

      satisfied, our courts will not reverse for mere procedural errors unless the

      defendant can demonstrate he was harmed by such errors.”).


[6]   Second, Govan asserts that the trial court erred by ordering the two firearm

      enhancements to run consecutive to one another because there is no “express

      statutory authorization” for such an order. Appellant’s Br. p. 14. We rejected

      this precise argument in Lumbley v. State, 74 N.E.3d 234, 240 (Ind. Ct. App.

      2017), trans. denied, and Govan makes no argument that we got it wrong there

      or that his case is distinguishable.


[7]   Third, Govan contends that the trial court sentenced him to “an additional

      fixed term of 10 years for the use of a firearm,” Appellant’s Br. p. 14, even

      though the version of Section 35-50-2-11 in effect at the time of his offenses

      provided for an additional term of only five years, see Ind. Code Ann. § 35-50-2-

      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-CR-1946 | February 2, 2018   Page 4 of 5
      11 (West 2004). But the trial court did not impose “an additional fixed term of

      10 years.” It imposed two additional fixed terms of five years each—one

      relating to each count of criminal confinement. To the extent that Govan

      argues that Section 35-50-2-11 permits the imposition of only one firearm

      enhancement in any given case, regardless of the number of offenses committed

      or the particular facts of the case, we disagreed with that argument the last time

      Govan was before us, and he has not given us any reason to revisit the issue.

      See Govan v. State, No. 02A04-1608-CR-1880 (Ind. Ct. App. May 15, 2017),

      trans. denied.


[8]   Affirmed.


      May, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-CR-1946 | February 2, 2018   Page 5 of 5
