MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Feb 01 2019, 8:58 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
Anthony Warren                                           Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Warren,                                          February 1, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1070
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa Borges, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G04-9808-CF-128010



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1070 | February 1, 2019                Page 1 of 7
                                      Statement of the Case
[1]   After his conviction of murder and a finding that he was an habitual offender,

      Anthony Warren appeals from the trial court’s denial of his motion to correct

      erroneous sentence and his motion to correct error. We affirm.


                                                    Issues
[2]   Warren presents these two, restated issues for our review as follows:


              I. Did the trial court abuse its discretion by denying Warren’s
              motion to correct erroneous sentence?


              II. Did the trial court commit reversible error by denying
              Warren’s motion to correct error?


                               Facts and Procedural History
[3]   To briefly summarize, on August 2, 1998, Warren, Lynn Coe, and Darlene

      Massengill engaged in a night of heavy drinking. The next morning, Coe

      discovered Massengill dead in his one-room apartment and further discovered

      that his handgun was missing. An autopsy revealed Massengill’s cause of death

      was a single, fatal, gunshot wound to the head. Coe called 911 reporting that

      he had seen Warren shoot Massengill, but at trial recanted and testified that he

      saw nothing because he had passed out in his bed from his alcohol

      consumption.


[4]   The same morning Massengill’s body was discovered, Warren returned to the

      apartment he shared with his girlfriend Charlene Davis. Davis told law

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      enforcement officers that Warren showed her a handgun, told her he knew he

      was going to jail, and mentioned something about removing gunshot residue.

      He removed his clothing, covered them in bleach and tossed them in a

      dumpster behind the apartment building. He also told Davis that she no longer

      had to worry about Massengill. Previously, Warren had tried to get Davis to

      purchase a gun for him because of problems he believed Massengill and her

      family were causing him.


[5]   After a jury trial, Warren was convicted of murder and was adjudged an

      habitual offender. The trial court sentenced Warren to sixty-five years for

      murder, enhanced by an additional thirty years for the habitual offender

      adjudication.


[6]   On direct appeal, the Supreme Court affirmed Warren’s murder conviction, but

      vacated his habitual offender adjudication, remanding the matter for further

      proceedings. Warren v. State, 725 N.E.2d 828 (Ind. 2000). The trial court once

      again adjudicated Warren an habitual offender and enhanced his murder

      sentence by thirty years for the habitual offender adjudication. Warren’s appeal

      from that decision was affirmed by the Supreme Court. Warren v. State, 769

      N.E.2d 170 (Ind. 2002).


[7]   In the meantime, on September 8, 2000, Warren filed a pro se petition for post-

      conviction relief. After an evidentiary hearing, the post-conviction court

      ordered both sides to submit proposed findings of fact and conclusions of law.

      The post-conviction court entered its findings of fact and conclusions of law,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1070 | February 1, 2019   Page 3 of 7
       denying Warren the relief he sought. On April 28, 2004, Warren filed a pro se

       Notice of Appeal in which he acknowledged the submission was late, but

       claimed he had not learned of the post-conviction court’s ruling until April 19,

       2004, despite a notation on the chronological case summary indicating that

       copies of the court’s order had been sent to all parties. On May 18, 2004, the

       post-conviction court denied Warren’s Notice of Appeal as untimely. On June

       4, 2004 Warren filed with this Court a petition for permission to file a belated

       appeal. On June 17, 2004, the Court granted Warren permission to file a

       belated appeal but limited the issue for consideration to the post-conviction

       court’s denial of Warren’s Notice of Appeal. After considering the appeal, the

       Court affirmed the post-conviction court’s denial of Warren’s Notice of Appeal.

       Warren v. State, 49A04-0405-PC-283 (Ind. Ct. App. Apr. 15, 2005).


[8]    Warren also filed a petition for a state writ of habeas corpus, which the trial

       court dismissed, and this Court dismissed his appeal from that decision. See

       Warren v. State, 49A02-1703-CR-598 (Ind. Ct. App. Oct. 30, 2017), citing

       Docket of Cause No. 49A02-1001-PC-53.


[9]    In January 2017, Warren filed a motion for relief from judgment and a motion

       to correct error, both of which were denied by the trial court. A panel of this

       Court affirmed the trial court’s decision in a memorandum decision. Warren v.

       State, 49A02-1703-CR-598, *1 (Ind. Ct. App. Oct. 30, 2017).


[10]   Next, on March 9, 2018, Warren filed a motion to correct erroneous sentence,

       which was denied by the trial court on March 12, 2018. The trial court entered


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       an order on April 10, 2018, denying Warren’s motion to correct error. He now

       appeals those decisions.


                                    Discussion and Decision
                        I. Motion to Correct Erroneous Sentence
[11]   Warren contends that the trial court abused its discretion by denying his motion

       to correct erroneous sentence. Indiana Code section 35-38-1-15 (1983) provides

       as follows about such motions:


               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.


[12]   Our Supreme Court, in Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004), held

       that the purpose of the statute was to “provide prompt, direct access to an

       uncomplicated legal process for correcting the occasional erroneous or illegal

       sentence.” On review of a trial court’s denial of such a motion, we defer to the

       trial court’s factual findings and review it for an abuse of discretion. Felder v.

       State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). We will find an abuse of

       discretion only when the trial court’s decision is against the logic and effect of

       the facts and circumstances before it. Id. The trial court’s legal conclusions, on

       the other hand, are reviewed de novo. Id.



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[13]   The Supreme Court opinion in Robinson further informs us that a motion to

       correct an erroneous sentence may only be used to correct sentencing errors that

       are clear on the face of the “judgment imposing sentence.” 805 N.E.2d at 787.

       Any claims requiring consideration of the proceedings before, during, or after

       the trial may not be presented by way of a motion to correct erroneous

       sentence. Id.


[14]   Here, Warren received an executed sentence of sixty-five years for his murder

       conviction. The sentencing range for murder at the time he committed his

       offense was a fixed term of fifty-five years with not more than ten years added

       for aggravating circumstances or not more than ten years subtracted for

       mitigating circumstances. See Ind. Code § 35-50-2-3 (1995). After remand,

       Warren’s sentence was enhanced by thirty years due to his habitual offender

       adjudication. That sentence enhancement was within the statutory parameters

       under Indiana Code section 35-50-2-8 (1995). Consequently, we conclude that

       Warren’s sentence was not deficient on the face of the judgment imposing

       sentence. Therefore, the trial court did not abuse its discretion in denying

       Warren’s motion to correct erroneous sentence.


                                   II. Motion to Correct Error
[15]   We address this separately because it appears that Warren is attempting to

       revive or revisit claims he has previously presented regarding the authority of

       the magistrate to sign his original abstract of judgment reflecting the sentence

       imposed for murder and the enhancement for his status as an habitual offender,

       under Indiana Code sections 33-4-8-8 and 33-4-7-8 (1998) (repealed by P.L. 98-
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1070 | February 1, 2019   Page 6 of 7
       2004, SEC. 164). His arguments regarding those claims were denied by the trial

       court and that denial was affirmed in Warren v. State, 49A02-1703-CR-598, *1

       (Ind. Ct. App. Oct. 30, 2017). In that opinion, as we do now, we observe that

       the correct procedure to use to present this claim would be through requesting

       permission to file a Successive Petition for Post-Conviction Relief with this

       Court. See Ind. Post-Conviction Rule 1(12). Because the trial court correctly

       identified Warren’s motion as an improper substitute for such a request for

       permission to file a Successive Petition for Post-Conviction Relief, the trial

       court did not err.


                                                Conclusion
[16]   Based on the foregoing, we affirm the judgment of the trial court.


[17]   Affirmed.


       Mathias, J., and Tavitas, J., concur.




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