                                                                     FILED
                                                                 Jul 26 2016, 8:32 am
MEMORANDUM DECISION
                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
Pursuant to Ind. Appellate Rule 65(D), this                           and Tax Court

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
Herbert Cox III                                          Gregory F. Zoeller
Westville, Indiana                                       Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Herbert Cox III,                                         July 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         64A03-1509-CR-1505
        v.
                                                         Appeal from the Porter Superior
                                                         Court
State of Indiana,
                                                         The Honorable Roger V.
Appellee-Plaintiff.                                      Bradford, Judge
                                                         Trial Court Cause No.
                                                         64D01-1208-FC-8140



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016     Page 1 of 5
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Herbert Cox (Cox), appeals the trial court’s denial of his

      motion to correct erroneous sentence.


[2]   We affirm.


                                                     ISSUE

[3]   Cox raises one issue on appeal, which we restate as: Whether the trial court

      improperly denied his motion to correct erroneous sentence.


                           FACTS AND PROCEDURAL HISTORY

[4]   On August 4, 2012, at approximately 4:15 p.m., Cox was driving a black 1997

      Chevy Silverado on Old Porter Road in Porter County, Indiana, when an

      officer initiated a traffic stop. The officer had observed Cox’s car travelling at

      48 mph in a 30 mph posted zone. When the officer ran Cox’s driver’s license

      through the Bureau of Motor Vehicles’ database, it reflected that Cox had been

      adjudged an Habitual Traffic Violator (HTV) with a lifetime suspension

      beginning from August 22, 1996.


[5]   On August 9, 2012, the State filed an Information, charging Cox with operating

      a motor vehicle while suspended as an HTV, a Class C felony. On June 16,

      2014, Cox pled guilty to that offense, and, in exchange, the State agreed to

      dismiss another HTV, a Class C felony in a different cause number. In

      addition, the plea agreement capped the executed portion of Cox’s sentence at

      five years. In the sentencing order dated September 22, 2014, the trial court


      Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016   Page 2 of 5
      sentenced Cox to four years in the Department of Correction (DOC) pursuant

      to the terms of the plea agreement, and it ordered that Cox’s sentence be served

      consecutively to his existing sentence in Lake County.


[6]   On July 6, 2015, Cox, pro se, filed a motion to correct erroneous sentence

      claiming that on February 19, 2013, he was sentenced to seven years for an

      HTV offense in Lake County. According to Cox, the imposition of the instant

      four-year sentence consecutive to his existing HTV offense in Lake County led

      to an illegal sentence. On July 9, 2015, the trial court denied Cox’s motion.

      Following the trial court’s denial of his motion, Cox filed a motion to correct

      error on August 11, 2015. On August 13, 2015, the trial court denied Cox’s

      motion.


[7]   Cox now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[8]   Cox claimed that the trial court imposed an illegal consecutive sentence. We

      review a ruling on a motion to correct erroneous sentence for an abuse of

      discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012). A motion

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

      are apparent from the face of the sentencing order. Robinson v. State, 805

      N.E.2d 783, 787 (Ind. 2004). As a result, claims that require consideration of

      the proceedings before, during, or after trial do not warrant relief. Id.


[9]   Indiana Code Section 35-50-1-2 grants the trial court discretion to impose

      consecutive sentences in certain circumstances. But Indiana Code Section 35-

      Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016   Page 3 of 5
       50-2-8, which authorizes the imposition of enhanced sentences for habitual

       offenders, is “silent on the question of whether courts have the authority to

       require habitual offender sentences to run consecutively[.]” Starks v. State, 523

       N.E.2d 735, 737 (Ind. 1988). In Starks, our supreme court construed the

       consecutive sentencing statute and the habitual offender statute to hold that trial

       courts are not authorized to order habitual offender sentences to be served

       consecutively. Id. To remedy the erroneous “stacking” of habitual offender

       sentences, the court ordered the two habitual offender sentences to be served

       concurrently. Id.


[10]   Relying on Starks, Cox argues that the only remedy for his erroneous sentence is

       to order that his instant sentence is illegal or, in the alternative, order his

       sentences to run concurrently. In the present case, the trial court sentenced Cox

       to an executed sentence of four years in the DOC for his HTV offense. Also,

       the trial court ordered that sentence to run consecutively to his existing sentence

       in Lake County. Despite Cox’s claim, the State argues that Cox has simply not

       provided an adequate record to determine whether he received an illegal

       consecutive sentence. Specifically, the State argues that Cox has not provided

       any documents from Lake County showing what charge or charges he faced

       there, and whether he received an habitual offender sentence.


[11]   A party waives an issue where the party fails to provide adequate citation to

       authority and portions of the record. Smith v. State, 822 N.E.2d 193, 202-03

       (Ind. Ct. App. 2005), trans. denied; see also Ind. Appellate Rule

       46(A)(8) (requiring that contentions in appellant’s brief be supported by cogent

       Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016   Page 4 of 5
       reasoning and citations to authorities, statutes, and the appendix or parts of the

       record on appeal). We agree with the State that Cox has waived this claim by

       failing to provide an adequate record to assist in deciding his appeal.


[12]   Waiver notwithstanding, Cox’s claim is not one that may be addressed through

       a motion to correct erroneous sentence because it requires this court to look

       beyond the face of the sentencing judgment. Specifically, it requires a review of

       records from Lake County to determine whether Cox received a habitual

       offender sentence in that case. Therefore, a motion to correct erroneous

       sentence is an improper vehicle for Cox’s claim. Accordingly, the trial court

       did not abuse its discretion in denying Cox’s motion.


                                               CONCLUSION

[13]   Based on the foregoing, we affirm the trial court’s denial of Cox’s motion to

       correct erroneous sentence.


[14]   Affirmed.


[15]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 64A03-1509-CR-1505 | July 26, 2016   Page 5 of 5
