MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Jan 28 2015, 9:41 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
Jon Holman                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Jon Holman,                                              January 28, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         48A04-1407-CR-302
        v.                                               Appeal from the Madison Circuit
                                                         Court

State of Indiana,                                        The Honorable Dennis D. Carroll,
Appellee-Plaintiff.                                      Judge

                                                         Cause No. 48D03-0812-FB-407
                                                         Cause No. 48D03-0901-FC-19




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1407-CR-302 | January 28, 2015     Page 1 of 7
[1]   Jon Holman, pro se, appeals the trial court’s denial of his motion to correct

      erroneous sentence. Holman raises one issue which we revise and restate as

      whether the trial court erred in denying his motion to correct erroneous

      sentence. We affirm.


                                      Facts and Procedural History

[2]   The facts of Holman’s underlying crimes were discussed in Holman’s direct

      appeal as follows:

               On October 2, 2008, Holman broke into Hoppes Refrigeration
               business in Anderson, Indiana. Holman and Tom Bell removed a safe
               containing $1,100 from the business. On December 14, 2008, Holman
               and Anthony Keppler broke into Hoppes Refrigeration business and
               used a blow torch to try to open a safe. While using the blow torch,
               they started a fire, which burned the building to the ground. Police
               officers searched Holman’s house and found a crack pipe and a
               syringe, which Holman indicated was for injecting morphine. The
               officers also discovered clothing that had a strong odor of smoke. A
               dog trained and used in arson investigations alerted to the presence of
               an accelerant on Holman’s clothing.


      Holman v. State, No.48A05-1008-CR-499, slip op. at 2 (Ind. Ct. App. April 27,

      2011).


[3]   On December 15, 2008, the State charged Holman under Cause No. 48D03-

      0812-FB-407 (“Cause No. 407”) with Count I, arson as a class B felony; Count

      II, burglary as a class C felony; Count III, unlawful possession of a syringe as a

      class D felony; and Count IV, possession of paraphernalia as a class A

      infraction. On January 9, 2009, the State charged Holman under Cause No.



      Court of Appeals of Indiana | Memorandum Decision 48A04-1407-CR-302 | January 28, 2015   Page 2 of 7
      48D03-0901-FC-19 (“Cause No. 19”) with Count I, burglary as a class C

      felony; and Count II, theft as a class D felony.


[4]   On May 11, 2009, Holman and the State entered into a plea agreement in both

      causes in which Holman agreed to plead guilty as charged in Cause No. 407

      and to plead guilty to an amended charge of receiving stolen property in Cause

      No. 19; the State agreed to dismiss the burglary charge in Cause No. 19; and

      the parties agreed that Holman’s aggregate sentence would be “open to the

      Court with a cap of fifteen (15) years executed.” Appellant’s Appendix at 105. 1

      That same day, the trial court accepted Holman’s guilty plea pursuant to this

      agreement and ordered the preparation of a presentence investigation report

      (“PSI”). On May 27, 2009, the court held a sentencing hearing and heard

      evidence, and it rejected the plea agreement and set the matter for a jury trial.

      In September 2009, Holman moved for recusal of the presiding trial judge, the

      court granted Holman’s motion, and a special judge was appointed and

      assumed jurisdiction.




      1
       Holman provided an appendix prepared for this appeal and filed on August 11, 2014, as well as a two-
      volume appendix which had been prepared for his 2011 direct appeal. Where we cite to the “Appellant’s
      Appendix” in this appeal, we refer to the volume filed on August 11, 2014.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1407-CR-302 | January 28, 2015        Page 3 of 7
[5]   On November 23, 2009, Holman and the State entered into a second plea

      agreement in which Holman agreed to plead guilty as charged under both cause

      numbers, and the State agreed that it would recommend that Holman’s

      sentence for all counts be served concurrently and that sentencing would

      otherwise be open to the trial court’s discretion. The court accepted Holman’s

      guilty pleas and set the matter for sentencing. On December 14, 2009, the court

      sentenced Holman to twenty years executed for arson as a class B felony and

      imposed concurrent sentences for the remaining counts. On direct appeal,

      Holman raised the sole issue of whether his sentence was inappropriate, and

      this Court issued a memorandum decision affirming the trial court. Holman,

      slip op. at 4.


[6]   On May 13, 2014, Holman filed a Petition to Correct Erroneous Sentence

      under both cause numbers and a memorandum of law in support of the petition

      alleging that the trial court erroneously rejected the first plea agreement dated

      May 11, 2009. On June 4, 2014, the State filed a response. On June 13, 2014,

      the court denied Holman’s motion by docket entry on the chronological case

      summary (“CCS”) in both cause numbers, stating specifically that such relief “is

      available only when an error is plain on the face of a Sentencing Order and/or

      Abstract” which was not the case and that “[n]otwithstanding the limitations

      for relief . . . it is clear . . . that error, if any, was invited by the conduct of

      [Holman] and his counsel.” Appellant’s Appendix at 9, 15.




      Court of Appeals of Indiana | Memorandum Decision 48A04-1407-CR-302 | January 28, 2015   Page 4 of 7
                                                   Discussion

[7]   The issue is whether the trial court erred in denying Holman’s motion to correct

      erroneous sentence. Holman argues that he “is entitled to relief by vacating the

      instant plea agreement dated November 23, 2009, and be resentenced according

      to the original plea agreement dated May 11, 2009, citing specific performance

      of his first plea agreement.” Appellant’s Brief at 6. He maintains that the court

      accepted the original plea agreement and is accordingly bound by its terms,

      noting specifically that upon accepting Holman’s plea of guilty, “[t]he counts

      under [Cause No. 19] were then amended by the Court according to the plea

      agreement.” Id. at 7. The State argues that Holman does not demonstrate any

      facial error to his sentence, noting that his “assertion that the trial court

      committed procedural error in subsequently rejecting the May 11, 2009 plea

      agreement requires reference to matters outside the judgment of conviction.”

      Appellee’s Brief at 6. The State also asserts that the cases cited by Holman in

      his brief do not concern appeals from the denial of a motion to correct

      erroneous sentence and are therefore inapplicable.


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

      only 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.


[9]   An inmate who believes he has been erroneously sentenced may file a motion

      to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888

      N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 35-38-1-15 provides:
      Court of Appeals of Indiana | Memorandum Decision 48A04-1407-CR-302 | January 28, 2015   Page 5 of 7
               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.


[10]   In Robinson v. State, the Indiana Supreme Court noted that a motion to correct

       erroneous sentence is available only when the sentence is “erroneous on its

       face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court

       emphasized that “a motion to correct an erroneous sentence may only arise out

       of information contained on the formal judgment of conviction . . . .” Neff, 888

       N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A 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, 805 N.E.2d at 787. Claims that require consideration of

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

       motion to correct erroneous sentence. Id. Sentencing claims that are not

       facially apparent “may be raised only on direct appeal and, where appropriate,

       by post-conviction proceedings.” Id. “Use of the statutory motion to correct

       sentence should thus be narrowly confined to claims apparent from the face of

       the sentencing judgment, and the ‘facially erroneous’ prerequisite should . . . be

       strictly applied . . . .” Id.


[11]   Resolution of the issue presented by Holman in this case necessarily requires

       consideration of factors outside of the face of the judgment. Specifically, to

       Court of Appeals of Indiana | Memorandum Decision 48A04-1407-CR-302 | January 28, 2015   Page 6 of 7
       address Holman’s claim would require a consideration of proceedings before,

       during, or after Holman’s guilty plea hearings. Thus, Holman’s argument is not

       properly presented by way of a motion to correct erroneous sentence. We

       cannot say that the trial court abused its discretion by denying Holman’s

       motion. See Jackson v. State, 806 N.E.2d 773, 774 (Ind. 2004) (holding that the

       trial court properly denied the defendant’s motion to correct erroneous sentence

       and noting that a motion to correct erroneous sentence is available only to

       correct sentencing errors clear from the face of the judgment); Bauer v. State, 875

       N.E.2d 744, 746 (Ind. Ct. App. 2007) (noting that the defendant’s claims

       required consideration of matters in the record outside the face of the judgment

       and accordingly they are not the types of claims that are properly presented in a

       motion to correct erroneous sentence), trans. denied.


                                                   Conclusion

[12]   For the foregoing reasons, we affirm the denial of Holman’s motion to correct

       erroneous sentence.


[13]   Affirmed.


       Bailey, J., and Robb, J., concur.




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