MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Nov 15 2018, 10:38 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Dennis Merritt Jr.                                      Curtis T. Hill, Jr.
Branchville, Indiana                                    Attorney General of Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dennis R. Merritt, Jr.,                                 November 15, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        22A04-1712-CR-2936
        v.                                              Appeal from the Floyd Superior
                                                        Court
State of Indiana,                                       The Honorable Maria D. Granger,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        22D03-1307-FB-1370
                                                        22D03-1307-FB-1372



Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 22A04-1712-CR-2936 | November 15, 2018       Page 1 of 5
                                             Case Summary
[1]   Dennis Merritt Jr. appeals the trial court’s denial of his motion for credit time.

      We affirm.


                                                     Issue
[2]   Merritt raises two issues, which we consolidate and restate as whether the trial

      court erred by denying Merritt’s motion for credit time.


                                                    Facts
[3]   In February 2016, Merritt pleaded guilty to burglary, a Class B felony, and

      theft, a Class D felony, in Cause Number 22D03-1307-FB-1370 (“Cause No.

      FB-1370”). The trial court sentenced him to ten years in the Department of

      Correction (“DOC”) with 694 days of credit for time served plus 694 days of

      good time credit. The trial court ordered this sentence to be concurrent with a

      sentence imposed in Cause Number 22D03-1307-FB-1372 (“Cause No. FB-

      1372”). In Cause No. FB-1372, Merritt pleaded guilty to two counts of

      burglary, as Class B felonies, and admitted to being a habitual offender. The

      trial court sentenced him to twenty years in the DOC with no credit for time

      served.


[4]   On May 13, 2016, Merritt filed a motion for jail time credit in both causes,

      which the trial court denied on July 25, 2016. On July 26, 2016, Merritt filed a

      motion to correct jail time credit in both causes. Merritt argued that he was

      entitled to credit time in Cause No. FB-1372, not just in Cause No. FB-1370.


      Court of Appeals of Indiana | Memorandum Decision 22A04-1712-CR-2936 | November 15, 2018   Page 2 of 5
      The trial court denied the motion on August 31, 2017. The trial court’s order

      was reflected in the CCS on September 18, 2017.


[5]   On October 11, 2017, Merritt filed a verified motion to proceed in forma

      pauperis and to file an appeal regarding the trial court’s denial of the motion for

      jail time credit. On November 16, 2017, the trial court granted Merritt’s motion

      to proceed in forma pauperis and to file an appeal regarding the trial court’s

      denial of the motion for jail time credit. On November 16, 2017, the trial court

      also issued an amended abstract of judgment in Cause No. FB-1372 giving

      Merritt 694 days of credit for time served plus 694 days of good time credit. On

      December 8, 2017, Merritt filed a notice of appeal. The State filed a motion to

      dismiss Merritt’s appeal as untimely, which a motions panel of this court

      denied.


                                                    Analysis
[6]   Merritt argues that the trial court erred by denying his motion for jail time

      credit. 1 Merritt’s motion for jail time credit is essentially a motion to correct an

      erroneous sentence. See Ind. Code § 35-38-1-15 (discussing motions to correct

      an erroneous sentence). We review a ruling on a motion to correct an

      erroneous sentence only for an abuse of discretion. Hobbs v. State, 71 N.E.3d




      1
       The State also argues that Merritt’s appeal should be dismissed as untimely. Our motions panel considered
      and rejected that argument. “Although we are reluctant to overrule orders decided by the motions panel, we
      have inherent authority to reconsider any decision while an appeal remains in fieri.” John C. & Maureen G.
      Osborne Revocable Family Tr. v. Town of Long Beach, 78 N.E.3d 680, 692 (Ind. Ct. App. 2017), trans. denied.
      Here, we decline to reconsider the motions panel’s decision.

      Court of Appeals of Indiana | Memorandum Decision 22A04-1712-CR-2936 | November 15, 2018        Page 3 of 5
      46, 48 (Ind. Ct. App. 2017), trans. denied. We will find an abuse of discretion if

      the trial court’s decision is against the logic and effect of the facts and

      circumstances before it. Id.


[7]   Merritt argues that: (1) his trial counsel was ineffective for failing to advocate

      for the correct jail time credit; and (2) he was entitled to credit for time served

      and good time credit for both Cause No. FB-1370 and Cause No. FB-1372. In

      Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004), our supreme court clarified

      that only sentencing errors that fail to comply with statutory authority and “are

      clear from the face of the judgment imposing the sentence” may be raised in a

      motion to correct an erroneous sentence. “Claims that require consideration of

      the proceedings before, during, or after trial may not be presented by way of a

      motion to correct sentence.” Robinson, 805 N.E.2d at 787. Sentencing claims

      that are not facially apparent “may be raised only on direct appeal and, where

      appropriate, by post-conviction proceedings.” Id.


[8]   Consideration of both of Merritt’s arguments would require analysis of matters

      beyond the face of the sentencing judgment, which may not be undertaken on a

      motion to correct an erroneous sentence following Robinson. Merritt’s

      ineffective assistance of counsel claim would require us to consider his trial

      counsel’s performance and prejudice resulting from any deficiencies, which are

      not matters evident on the face of the judgments. 2 Merritt’s credit time




      2
          We also note that Merritt did not present this argument to the trial court.


      Court of Appeals of Indiana | Memorandum Decision 22A04-1712-CR-2936 | November 15, 2018   Page 4 of 5
       arguments would require consideration of the timing of his arrests, which is also

       not evident on the face of the judgments. Under these circumstances, the trial

       court did not err by denying his motion. 3


                                                  Conclusion
[9]    The trial court did not err by denying Merritt’s motion for credit time. We

       affirm.


[10]   Affirmed.


       Brown, J., and Altice, J., concur.




       3
        We also note that, on November 16, 2017, the trial court awarded Merritt credit time on Cause No. FB-
       1372, which appears to resolve Merritt’s arguments.

       Court of Appeals of Indiana | Memorandum Decision 22A04-1712-CR-2936 | November 15, 2018       Page 5 of 5
