      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                   FILED
      this Memorandum Decision shall not be                                Mar 17 2016, 8:59 am

      regarded as precedent or cited before any                                CLERK
      court except for the purpose of establishing                         Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Robert L. Scott                                          Gregory F. Zoeller
      Pendleton, Indiana                                       Attorney General of Indiana
                                                               George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Robert Lee Scott,                                        March 17, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               79A02-1510-CR-1799
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court
      State of Indiana,                                        The Honorable Randy J. Williams
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               79D01-1507-FB-6



      Mathias, Judge.


[1]   The Tippecanoe Superior Court denied the motion to correct erroneous

      sentence filed by Robert Lee Scott (“Scott”). Scott appeals and presents one

      issue for our review, which we restate as whether Scott’s sentence is in

      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016        Page 1 of 8
      conformity with the restrictions placed on consecutive sentences by Indiana

      Code section 35-50-2-1.3. Concluding that Scott’s claim of sentencing error

      requires reference to matters outside the record and is therefore not properly

      presented in a motion to correct erroneous sentence, we affirm.

                                    Facts and Procedural History

[2]   At a bifurcated trial held on October 8 and 9, 2008, Scott was convicted of

      Class C felony battery with a deadly weapon, Class D felony pointing a firearm,

      Class A misdemeanor resisting law enforcement, and two counts of Class B

      felony possession of a firearm by a serious violent felon. The trial court

      sentenced Scott as follows: on the Class C felony conviction, eight years; on the

      Class D felony conviction, three years; on the Class A misdemeanor conviction,

      one year; and on the two Class B felony convictions, twenty years each. The

      trial court ordered the sentences on the Class C and D felonies to be served

      concurrently to each other but consecutive to the remaining counts. The trial

      court also ordered the sentences on the two Class B felonies to be served

      concurrently but consecutive to the other counts. Thus, Scott was sentenced to

      an aggregate term of twenty-nine years.


[3]   On direct appeal, this court affirmed all of Scott’s convictions save the

      conviction for Class D felony pointing a firearm, which we reversed due to

      instructional error. Scott v. State, 924 N.E.2d 169, 176-77 (Ind. Ct. App. 2010),

      trans. denied. This, however, did not affect Scott’s aggregate sentence because

      the sentence on this count was concurrent with the sentence on the class C

      felony conviction.
      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016   Page 2 of 8
[4]   On June 19, 2015, Scott filed a motion to correct erroneous sentence. The State

      responded to Scott’s motion on July 7, 2015, and the trial court denied Scott’s

      motion on October 28, 2015. Scott now appeals.


                                           Discussion and Decision

[5]   Scott appeals the denial of his motion to correct erroneous sentence. A

      defendant may file a motion to correct erroneous sentence pursuant to Indiana

      Code section 35-38-1-15,1 which provides:

               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.


[6]   The purpose of this 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).

      A motion to correct erroneous sentence is appropriate 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




      1
        We refer to the sentencing statutes in effect at the time that Scott committed his crimes. See Robertson v.
      State, 871 N.E.2d 280, 284 (Ind. 2007) (noting that trial courts sentence a defendant under the sentencing
      statutes in effect at the time the defendant committed the offense).



      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016                 Page 3 of 8
      proceedings before, during, or after trial may not be presented by way of a

      motion to correct erroneous sentence. Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct.

      App. 2010), trans. denied. Such claims should instead 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 requirement of a facially erroneous sentence. Id.


[7]   Scott contends that the sentence imposed by the trial court was contrary to the

      statutory mandate of Indiana Code section 35-50-2-1.3(c)(1). The version of this

      section in effect at the time Scott committed his crimes provided:

              (a) For purposes of sections 3 through 7 of this chapter,
              “advisory sentence” means a guideline sentence that the court
              may voluntarily consider as the midpoint between the maximum
              sentence and the minimum sentence.
              (b) Except as provided in subsection (c), a court is not required
              to use an advisory sentence.
              (c) In imposing:
                   (1) consecutive sentences for felony convictions that are not crimes of
                   violence (as defined in IC 35-50-1-2(a)) arising out of an episode of
                   criminal conduct, in accordance with IC 35-50-1-2;
                   (2) an additional fixed term to an habitual offender under
                   section 8 of this chapter; or
                   (3) an additional fixed term to a repeat sexual offender
                   under section 14 of this chapter;
              a court is required to use the appropriate advisory sentence in imposing a
              consecutive sentence or an additional fixed term. However, the court is
              not required to use the advisory sentence in imposing the sentence for the
              underlying offense.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016   Page 4 of 8
              (d) This section does not require a court to use an advisory
              sentence in imposing consecutive sentences for felony
              convictions that do not arise out of an episode of criminal
              conduct.

      Ind. Code § 35-50-2-1.3 (2007) (emphases added). Scott claims that subsection

      1.3(c)(1) is applicable to him and that the trial court was therefore “required to

      use the advisory sentence in imposing the sentence for the underlying offense.”

[8]   To address Scott’s claim, however, we have to determine at least two things: (1)

      whether Scott’s crimes were among the statutorily defined crimes of violence,

      and (2) whether his convictions arose out of an episode of criminal conduct.

      Scott argues that we can determine from the face of the sentencing order that

      none of his convictions were “crimes of violence” as defined by Indiana Code

      section 35-50-1-2(a) as it existed at the time of his crimes.


[9]   While Scott’s first contention is arguably true, we cannot determine whether

      Scott’s crimes arose out of an episode of criminal conduct without looking

      outside the face of the sentencing order. The fact that Scott’s crimes were all

      charged under one cause number 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)). We can obtain additional guidance on the

      question by considering whether the alleged conduct was so closely related in


      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016   Page 5 of 8
       time, place, and circumstance that a complete account of one charge cannot be

       related without referring to the details of the other charge. Id.


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

       circumstances underlying Scott’s convictions. In other words, we cannot

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

       authority that Scott’s sentence is erroneous. Accordingly, a motion to correct

       erroneous sentence is not the appropriate vehicle to present Scott’s claims of

       sentencing error. See Davis, 937 N.E.2d at 11; Robinson, 805 N.E.2d at 787. For

       this reason, the trial court properly denied Scott’s motion to correct erroneous

       sentence.


[11]   Even if a motion to correct erroneous sentence were the proper vehicle for

       Scott’s current claim of sentencing error, he would not prevail, for even if we

       assume that his crimes were not crimes of violence and arose out of an episode

       of criminal conduct, his sentence is not erroneous.


[12]   Scott reads Indiana Code section 35-50-2-1.3(c)(1) to mean that the trial court

       was required to impose the advisory sentence if it also chose to sentence him to

       consecutive sentences. This argument was rejected by our supreme court in

       Robertson v. State, 871 N.E.2d 280 (Ind. 2009). In that case, the court held that

       section 35-50-2-1.3 “was not meant to impose additional restrictions on a trial

       court’s ability to impose consecutive sentences.” Id. at 285-86. Instead, this

       section does no more than “retain the fixed maximum sentences permissible




       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016   Page 6 of 8
       under the episode [of criminal conduct] . . . provision[]” of Indiana Code

       section 35-50-2-1. Id. at 285.


[13]   Thus, as interpreted in Robertson, Indiana Code section 35-50-2-1.3(c) means

       that when a court is imposing consecutive sentences under Indiana Code

       Section 35-50-2-1, the court must “use” the advisory sentence in determining

       the statutory cap placed on consecutive sentences for crimes which are not

       crimes of violence and which arise out of an episode of criminal conduct.

       Pursuant to Indiana Code section 35-50-2-1(c), the total of such consecutive

       sentences “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.”

[14]   Here, the most serious of the felonies for which Scott was convicted was Class

       B felony possession of a firearm by a serious violent felon. The class of felony

       which is one class higher than this is an A felony, for which the advisory

       sentence is thirty years. See Ind. Code § 35-50-2-4. Thus, the total of Scott’s

       consecutive sentences could not exceed thirty years. Scott was sentenced to an

       aggregate of twenty-nine years, which is one year less than the statutory limit.

       Therefore, even if we were to review Scott’s claim of sentencing error on the

       merits, his claim would not succeed.


                                                  Conclusion

[15]   The trial court properly denied Scott’s motion to correct erroneous sentence

       because his claim of sentencing error requires consideration of matters outside


       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016   Page 7 of 8
       the face of the sentencing order. Furthermore, even if we considered Scott’s

       claims on the merits, he would not prevail because his aggregate sentence did

       not exceed the advisory sentence for the next highest class of felony.


[16]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1799 | March 17, 2016   Page 8 of 8
