MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Jan 24 2020, 7:34 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Shaun L. Steele                                          Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana

                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Shaun L. Steele,                                         January 24, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-CR-79
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Respondent.                                     Bowers, Judge
                                                         Trial Court Cause No.
                                                         20D02-1007-FC-60



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020                 Page 1 of 9
                                           Statement of the Case
[1]   Shaun L. Steele appeals the trial court’s denial of his motion to correct

      erroneous sentence. We affirm.


                                                          Issues
[2]   Steele presents three issues in his appeal of the denial of his motion to correct

      his sentence:


                 I.       Whether the trial court erred by imposing an
                          impermissible hybrid sentence.


                 II.      Whether the trial court erred by suspending a portion of
                          the habitual offender enhancement.


                 III.     Whether Steele’s credit time has been correctly calculated.


                                   Facts and Procedural History
[3]   Based on an incident in July 2010, Steele was charged with resisting law

      enforcement as a Class D felony, operating a vehicle while intoxicated as a

      Class A misdemeanor, and receiving stolen property as a Class C felony, which
                                                                               1
      was enhanced, under a progressive penalty statute, from a Class D felony due

      to a previous conviction of auto theft. The State also alleged that Steele was an

      habitual offender. Steele pleaded guilty to all of these charges and admitted to




      1
          See Ind. Code § 35-43-4-2.5 (1991). This statute was repealed effective July 1, 2018.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020              Page 2 of 9
      being an habitual offender. The court sentenced Steele to eight years for

      receiving stolen property, enhanced by an additional eight years for his status as

      an habitual offender. Those sentences were to be served consecutive to the

      concurrent sentences of two years for his resisting conviction and one year for

      his operating while intoxicated conviction.


[4]   In 2011, Steele filed a post-conviction petition alleging that trial counsel was

      ineffective for not challenging what he alleged was an impermissible double

      enhancement—the habitual offender enhancement in addition to the

      enhancement of the receiving stolen property offense. The post-conviction

      court granted his petition, and the State appealed. This Court reversed the post-

      conviction court because, at the time Steele was sentenced, Beldon v. State, 926

      N.E.2d 480 (Ind. 2010) provided that a prior conviction could not be used to

      enhance a felony under both the progressive penalty statute and the habitual

      offender statute. State v. Steele, No. 20A03-1111-PC-502 (Ind. Ct. App. Oct. 18,

      2012). Steele’s receiving stolen property conviction had been enhanced under

      the progressive penalty statute using a prior conviction of auto theft in cause

      number 20D05-0804-FD-119 (FD-119). In contrast, his habitual offender

      enhancement was based on his admission to prior convictions of robbery in

      cause number 20D01-9807-CF-152 (CF-152) and escape in cause number

      37C01-0205-FA-241 (FA-241). Thus, this Court determined that the trial court

      had not violated the prohibition in Beldon and, therefore, Steele’s trial counsel

      had not rendered deficient performance in failing to object to a sentence that

      was lawful at the time.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020   Page 3 of 9
[5]   Steele’s case was remanded, and, on remand, the trial court resentenced Steele

      in January 2013 to eight years for receiving stolen property, enhanced by eight

      years for his habitual offender status, with four years suspended. As before,

      that sentence was to be served consecutive to the concurrent sentences of two

      years for resisting and one year for operating while intoxicated.


[6]   In 2016, Steele was granted permission to file a belated appeal. There, Steele

      raised the argument of impermissible double enhancement that had been

      previously adjudicated in his post-conviction proceeding, and the Court

      concluded that his appeal was barred by res judicata. Steele v. State, No. 20A03-

      1604-CR-889 (Ind. Ct. App. Sept. 15, 2016).


[7]   After Steele was released to probation, the State filed a petition for probation

      violation in November 2017, and, in February 2018, it filed a violation

      supplement. Following an evidentiary hearing, the court revoked a portion of

      Steele’s suspended sentence in August 2018. In October 2018, Steele filed a

      motion to modify his sentence and a petition for additional credit time, which

      were denied by the court. Steele subsequently filed a motion to correct

      erroneous sentence in November 2018, which the court also denied. This

      appeal ensued.


                                   Discussion and Decision
[8]   Steele appeals the trial court’s denial of his motion to correct erroneous

      sentence. We review a trial court’s decision on a motion to correct erroneous

      sentence only for an abuse of discretion, and we defer to the trial court’s factual

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020   Page 4 of 9
       findings. 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 Indiana Code section 35-38-1-15 (1983),

       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.


[10]   Our Supreme Court has held that a motion to correct erroneous sentence is

       appropriate only when the sentence is “erroneous on its face.” Robinson v. State,

       805 N.E.2d 783, 786 (Ind. 2004). The facially erroneous prerequisite is to be

       strictly applied; accordingly, “[c]laims that require consideration of the

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

       motion to correct sentence.” Id. at 787. Indeed the court specifically stated that

       “[a]s to sentencing claims not facially apparent, the motion to correct sentence

       is an improper remedy. Such claims may be raised only on direct appeal and,

       where appropriate, by post-conviction proceedings.” Id.


[11]   We note that Steele brings his appeal pro se. Pro se litigants are held to the

       same standard as licensed attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020   Page 5 of 9
       Ct. App. 2016), trans. denied. This means that they must follow the established

       rules of procedure and accept the consequences when they fail to do so. Id.


                                           I. Hybrid Sentence
[12]   Steele first contends that his sentence is an impermissible hybrid sentence in

       that his sentence for resisting is partially concurrent with his sentence for

       operating while intoxicated and partially consecutive to his sentence for

       receiving stolen auto parts.


[13]   In support of his argument, Steele cites to Wilson v. State, 5 N.E.3d 759 (Ind.

       2014). However, Wilson is inapposite to this case. Wilson was sentenced to

       forty-five years on each of two class A felony convictions and twenty years for a

       class B felony conviction. The forty-five-year sentences were ordered to be

       served concurrent with one another, but the twenty-year sentence was split:

       fifteen years were to be served concurrent with the forty-five-year sentences and

       five years were to be served consecutive to them. The court held that a sentence

       for a single conviction may not be split into both concurrent and consecutive

       forms, as the trial court had done with Wilson’s sentence on his B felony

       conviction. Id. at 764. In so holding, the court reiterated that, in a single

       sentencing order, courts may impose some sentences as consecutive and some

       as concurrent. Id. In fact, the court noted that, where several convictions are

       involved, it is a relatively common practice for courts to fashion an aggregate

       sentence so that some sentences are served concurrently and others are served

       consecutively. Id. at 764 n.3.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020   Page 6 of 9
[14]   Here, in contrast, the trial court in 2013 resentenced Steele to two years on his

       resisting conviction and one year on his operating while intoxicated conviction

       and ordered those sentences to run concurrently. The court further ordered

       Steele to serve eight years for his conviction of receiving stolen property and for

       that sentence to be served consecutive to his concurrent sentences for resisting

       and operating while intoxicated. The court also enhanced Steele’s receiving

       sentence by eight years, with four years suspended, based on his adjudication as

       an habitual offender. Pursuant to the criteria set out by our Supreme Court in

       Wilson, Steele’s sentence is clearly not a hybrid sentence. The trial court

       properly denied his motion to correct erroneous sentence on this issue.


                 II. Suspension of Habitual Offender Enhancement
[15]   Steele asserts that the trial court improperly suspended a portion of his habitual

       offender enhancement. He does so because he is currently serving the

       suspended portion following the court’s finding that he violated his probation.

       He posits that he should be resentenced and claims that the court could not give

       him any additional time; therefore, he would be released from jail.


[16]   In support of his argument, Steele cites State v. Williams, 430 N.E.2d 756 (Ind.

       1982). The Williams court held that an habitual offender enhancement could

       not be suspended according to the 1979 version of Indiana Code section 35-50-

       2-2, which provided: “The court may suspend any part of a sentence for a

       felony unless: (1) The person has a prior unrelated felony conviction.” Id. at

       758. But as recognized by this Court in Bauer v. State, 875 N.E.2d 744 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020   Page 7 of 9
       App. 2007), trans. denied, Section 35-50-2-2 underwent numerous revisions after

       Williams was decided in 1982, and in 2010, when Steele committed these

       offenses, it no longer contained the language used by the Williams court to reach
                      2
       its holding. Accordingly, the Bauer Court concluded that habitual offender
                                                       3
       enhancements could be suspended. See id. at 748-50 (distinguishing and

       respectfully disagreeing with Devaney v. State, 578 N.E.2d 386 (Ind. Ct. App.

       1991)).


[17]   In accordance with this precedent, it was not improper for the court, under the

       statutes in effect in 2010, to suspend a portion of Steele’s habitual offender

       enhancement. Thus, the trial court did not abuse its discretion by denying

       Steele’s motion to correct erroneous sentence on this issue.


                                  III. Calculation of Credit Time
[18]   Finally, Steele alleges an error in the calculation of his credit time for time he

       spent in jail when he was arrested for his violation of probation. Steele’s claim

       raises an alleged error that requires consideration of matters outside the face of

       the sentencing judgment; consequently, it may not be presented by way of a




       2
        Section 35-50-2-2 was repealed effective July 2, 2014; much of that statute was then recodified under
       Indiana Code section 35-50-2-2.2.
       3
         Several years after Bauer was decided and Steele committed these offenses, Indiana Code section 35-50-2-8
       (the habitual offender statute) was amended, effective July 1, 2014, to provide that habitual offender
       enhancements are nonsuspendible.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020                    Page 8 of 9
       motion to correct sentence. See Robinson, 805 N.E.2d at 787. We therefore

       conclude the trial court properly denied his motion.


                                                Conclusion
[19]   For the reasons stated, we conclude the trial court did not abuse its discretion

       when it denied Steele’s motion to correct erroneous sentence.


[20]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020   Page 9 of 9
