MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Feb 14 2018, 5:51 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Robert G. Bottorff II                                    Curtis T. Hill, Jr.
Bob Bottorff Law PC                                      Attorney General of Indiana
Jeffersonville, Indiana
                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Duward Roby,                                             February 14, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         10A01-1704-CR-832
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Andrew Adams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         10C01-0902-FB-47



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1704-CR-832| February 14, 2018             Page 1 of 8
                                       Statement of the Case
[1]   Duward Roby (“Roby”) appeals the trial court’s denial of his motion to correct

      erroneous sentence in which he asked the trial court to vacate his habitual

      offender enhancement, that on the face of the abstract of judgment, was set

      forth as a separate sentence. The trial court ordered the correction of the

      abstract of judgment but denied Roby’s request to vacate the enhancement.

      Concluding that Roby’s request to vacate the enhancement was not a proper

      claim for a motion to correct erroneous sentence, we affirm the trial court’s

      judgment.


[2]   We affirm.


                                                     Issue
               Whether the trial court abused its discretion in denying Roby’s
               motion to correct erroneous sentence.


                                                     Facts
[3]   In 2008, Roby was convicted of four counts of Class B felony armed robbery

      after he demanded money from four different tellers during a bank robbery.

      Thereafter, he admitted to being an habitual offender. The trial court sentenced

      him to twenty years on each of the robbery convictions and ordered the

      sentences to run concurrently to each other. The court also entered a separate

      thirty-year sentence for his habitual offender adjudication and ordered it to run

      consecutively to the robbery sentence, for a total executed sentence of fifty

      years.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1704-CR-832| February 14, 2018   Page 2 of 8
[4]   On direct appeal in 2010, this Court determined that three of the four robbery

      convictions had to be vacated under the Single Larceny Rule. Roby v. State, No.

      10A01-0910-CR-492, slip op. at 6-7 (Ind. Ct. App. October 25, 2010). We also

      ordered the trial court “to revise Roby’s sentence so the habitual offender

      finding enhance[d] the sentence for the remaining robbery conviction.” Id. at 7.

      We further concluded that Roby’s fifty-year sentence was not inappropriate. Id.

      at 6.


[5]   Six years later, in February 2016, Roby filed a motion for correction of abstract

      of judgment wherein he explained that the trial court had failed to follow this

      Court’s order to vacate three of the robbery convictions. He asked the trial

      court to order the trial court clerk to correct the abstract of judgment in this case

      to reflect that Roby had been convicted of one count of robbery. Roby’s motion

      did not mention that this Court had also ordered the trial court to revise Roby’s

      sentence so that the habitual offender sentence enhanced the sentence for the

      remaining robbery conviction. The trial court granted Roby’s motion and

      ordered the trial court clerk to amend the abstract of judgment to reflect that

      Roby was convicted of only one count of robbery and that the sentence for that

      conviction was enhanced by a finding that Roby was an habitual offender. The

      amended abstract of judgment was issued in April 2016.


[6]   In October 2016, Roby filed a motion to correct erroneous sentence wherein he

      argued that the amended abstract of judgment still improperly reflected a

      freestanding sentence for his habitual offender adjudication. He explained that

      he had served the twenty-year sentence for the robbery conviction and argued

      Court of Appeals of Indiana | Memorandum Decision 10A01-1704-CR-832| February 14, 2018   Page 3 of 8
      that the trial court could not now “retroactively enhance [his] twenty (20) year

      sentence for his Robbery conviction by an additional thirty (30) years after [he]

      has already . . . completed serving . . . his Robbery sentence.” (App. 96). Roby

      therefore argued that he was “entitled to have his habitual offender sentence

      vacated and dismissed with prejudice pursuant to Indiana Code § 35-38-1-15.”

      (App. 96).


[7]   Following a hearing, the trial court ordered the correction of the judgment of

      conviction and abstract of judgment to reflect the corrected habitual offender

      enhancement. However, the trial court denied Roby’s request to vacate the

      habitual offender enhancement and release him. Roby now appeals.


                                                  Decision
[8]   Roby argues that the trial court erred in denying his motion to correct

      erroneous sentence. We review the trial court’s denial of a motion to correct

      erroneous sentence for an abuse of discretion, which occurs when the trial

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

      before it. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012).


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

      motion to correct the sentence pursuant to INDIANA CODE § 35-38-1-15. Neff v.

      State, 888 N.E.2d 1249, 1250-51 (Ind. 2008). INDIANA CODE § 35-38-1-15

      provides as follows:


              If the convicted person is erroneously sentenced, the mistake
              does not render the sentence void. The sentence shall be

      Court of Appeals of Indiana | Memorandum Decision 10A01-1704-CR-832| February 14, 2018   Page 4 of 8
               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.


       The purpose of this statute is to provide prompt, direct access to an

       uncomplicated legal process for correcting erroneous or illegal sentences.

       Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004).


[10]   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. Id. at 787. 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 erroneous sentence. Robinson,

       805 N.E.2d at 787. Such claims are best addressed on direct appeal or by way

       of a petition for post-conviction relief, where applicable. Id.


[11]   Here, the State correctly points out that the only error that was apparent on the

       face of the judgment in this case was that Roby’s habitual offender

       enhancement was incorrectly entered as a separate sentence to be served

       consecutive to his sentence for robbery. The trial court granted relief on this

       issue and ordered the correction of the judgment of conviction and abstract of

       judgment to reflect the corrected sentence enhancement. However, Roby’s
       Court of Appeals of Indiana | Memorandum Decision 10A01-1704-CR-832| February 14, 2018   Page 5 of 8
       request for further relief, including the elimination of his habitual offender

       enhancement and release was not a proper basis for a motion to correct

       erroneous sentence because it required consideration of issues beyond the face

       of the judgment. The trial court did not abuse its discretion in denying Roby’s

       motion to correct erroneous sentence.1


[12]   Affirmed.


[13]   Kirsch, J., dissents with separate opinion.


[14]   Bailey, J., concurs.




       1
         We further note that the State correctly points out that even if we were to “entertain Roby’s extraordinary
       request for relief,” we would affirm the trial court’s denial of Roby’s motion. (State’s Br. 10). In Gipson v.
       State, 495 N.E.2d 722 (Ind. 1986), the trial court sentenced Gipson to two years each on two felonies and
       thirty years for his habitual offender finding. After Gipson filed a motion to correct erroneous sentence, this
       court corrected Gipson’s sentence to a four-year sentence enhanced by thirty years for the habitual offender
       finding. On appeal, Gipson, like Roby, argued that because he had served all of the time on the underlying
       felonies, there was no underlying felony to be enhanced. The Indiana Supreme Court explained that
       pursuant to INDIANA CODE § 35-38-1-15, an erroneously imposed sentence does not render the sentence void,
       but rather the trial court is required to correct the sentence. Id. at 723. Given that the trial court corrected the
       erroneous sentence and the resentencing did not affect any of Gipson’s legitimate expectations concerning his
       sentence, the Supreme Court concluded that the trial court had not erred in correcting the erroneous
       sentence. Id. The Supreme Court further explained the error in the original sentence was merely a
       procedural error as contemplated by INDIANA CODE § 35-38-1-15. The Supreme Court specifically stated that
       “[s]ince the statute is silent as to when a sentence may be corrected, it is important only that the sentence is
       corrected in accordance with the statute’s other requirements as was done in this case.” Id. See also Petro v.
       State, 506 N.E.2d 467 (Ind. 1987). Here, as in Gipson, the trial court corrected Roby’s sentence in accordance
       with the statutory requirements and the resentencing did not affect any of Roby’s legitimate expectations
       concerning his sentence. Although there should have been no delay in effectuating our order, the delay does
       not result in a windfall to Roby. The trial court did not err in denying Roby’s motion to correct erroneous
       sentence.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1704-CR-832| February 14, 2018                  Page 6 of 8
                                           IN THE
    COURT OF APPEALS OF INDIANA

Duward Roby,
Appellant-Defendant,
                                                         Court of Appeals Case No.
        v.                                               10A01-1704-CR-832

State of Indiana,
Appellee-Plaintiff




Kirsch, Judge, dissenting.


I respectfully dissent.


Notwithstanding numerous directives from our Supreme Court and this court

extending over decades that habitual offender enhancements cannot be imposed

as standalone sentences, and notwithstanding the clear statement from this

court in this case in 2010 that the trial court in this case had failed to comply

with that long-standing directive, Duward Roby was never properly

sentenced. At no time was the habitual offender adjudication attached to his

Court of Appeals of Indiana | Memorandum Decision 10A01-1704-CR-832| February 14, 2018   Page 7 of 8
sentence for robbery, and Roby has now served that sentence. There is no

remaining sentence to which the habitual offender enhancement can be

attached, and Roby should be released from incarceration.




Court of Appeals of Indiana | Memorandum Decision 10A01-1704-CR-832| February 14, 2018   Page 8 of 8
