MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Sep 29 2015, 9:45 am
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
William A. Russell                                       Gregory F. Zoeller
Pendleton Correctional Facility                          Attorney General of Indiana
Pendleton, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William A. Russell,                                      September 29, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         41A04-1504-CR-155
        v.                                               Appeal from the Johnson Circuit
                                                         Court
State of Indiana,                                        The Honorable K. Mark Loyd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         41C01-0511-FB-24



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A04-1504-CR-155 | September 29, 2015   Page 1 of 7
                                       Statement of the Case
[1]   William A. Russell (“Russell”), pro se, appeals the trial court’s order denying

      his fourth motion to correct erroneous sentence, in which he alleged that the

      charging information for the habitual offender allegation was flawed and

      challenged the sufficiency of the evidence to support the habitual offender

      determination. On appeal, Russell does not argue or show how the trial court’s

      denial of his motion was erroneous. Instead, he merely rehashes his arguments

      made to the trial court regarding his challenge to his habitual offender

      allegation and determination. Because a motion to correct erroneous sentence

      is limited to correcting sentencing errors apparent on the face of the judgment

      and Russell raises issues outside of this context, we conclude that the trial court

      did not err by denying his motion to correct erroneous sentence.


[2]   Affirmed.


                                                     Issue
              Whether the trial court erred by denying Russell’s motion to
              correct erroneous sentence.

                                                     Facts
[3]   The underlying facts of Russell’s case were set forth in our opinion from

      Russell’s appeal of the denial of his third motion to correct erroneous sentence:


              On November 7, 2005, Russell, with the intent to commit a theft
              therein, entered the residence of Christopher Stainbrook.
              Stainbrook awoke to find Russell in his bedroom. Stainbrook



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        subsequently discovered that Russell had stolen $52.00 from
        inside of Stainbrook’s girlfriend’s purse.


        On November 9, 2005, Appellee-Plaintiff the State of Indiana
        (the “State”) charged Russell with Class B felony burglary. The
        State also alleged that Russell was a habitual offender. On
        November 14, 2006, the trial court found Russell guilty of Class
        B felony burglary. The trial court also found that Russell was a
        habitual offender. The trial court subsequently sentenced Russell
        to a term of twenty years for Class B felony burglary and
        enhanced the sentence by an additional twenty-year term by
        virtue of Russell’s status as a habitual offender. The trial court’s
        sentencing order makes no mention as to whether Russell’s
        sentence was to be run consecutive to his prior unrelated
        sentence.


        On January 11, 2007, Russell filed a notice of appeal. Russell
        subsequently filed a motion to dismiss the appeal, which was
        dismissed with prejudice on June 4, 2007. On October 27, 2008,
        Russell filed a petition for post-conviction relief (“PCR
        petition”). Russell did not raise any challenge relating to his
        sentence in his PCR petition. A hearing was held on Russell’s
        PCR petition on August 10, 2009, after which the post-conviction
        court denied Russell’s request for post-conviction relief.


        On August 4, 2011, Russell, by counsel, filed a motion to correct
        erroneous sentence. In this motion, Russell claimed that his
        sentence was erroneous pursuant to Indiana Code section 35-38-
        1-15 and the Indiana Supreme Court’s opinion in Breaston v. State,
        907 N.E.2d 992 (Ind. 2009) because he was on parole for an
        unrelated conviction, the sentence for which has also been
        enhanced by virtue of his status as a habitual offender, at the time
        that he was sentenced in the instant matter. The trial court
        subsequently denied Russell’s motion. Russell filed a notice of
        appeal on September 16, 2011. On January 30, 2012, Russell


Court of Appeals of Indiana | Memorandum Decision 41A04-1504-CR-155 | September 29, 2015   Page 3 of 7
        filed a motion to dismiss the appeal. Russell’s appeal was
        thereafter dismissed with prejudice.


        On December 13, 2012, Russell, again by counsel, filed a second
        motion to correct erroneous sentence. In this motion, Russell
        again claimed that his sentence was erroneous under Indiana
        Code section 35-38-1-15 and the Indiana Supreme Court’s
        opinion in Breaston. Russell attached a document which he
        claimed indicated that he was still on parole for his prior
        unrelated conviction at the time he was sentenced in the instant
        matter. Russell, however, failed to present any proof that the
        instant sentence was ordered to run consecutive to the sentence
        that was imposed in relation to his prior unrelated conviction.
        On January 25, 2013, the trial court denied Russell’s December
        13, 2012 motion. Russell subsequently filed a motion to correct
        error, which was denied by the trial court on March 13, 2013.
        Russell did not appeal the trial court’s denial of his motion to
        correct error.


        On April 7, 2014, Russell, again by counsel, filed a third motion
        to correct erroneous sentence. The April 7, 2014 motion was
        identical to the motion filed by Russell on December 13, 2012.
        The trial court denied Russell’s third motion to correct an
        erroneous sentence on May 30, 2014.


Russell v. State, 2014 WL 6609074, *1-2 (Ind. Ct. App. Nov. 21, 2014) (footnotes

omitted). Russell then appealed the denial of his third motion to correct

erroneous sentence. This Court affirmed the trial court’s denial of the motion,

holding that Russell’s third motion to correct erroneous sentence was barred by

the doctrine of res judicata. Specifically, we held that “the trial court’s previous

rulings on Russell’s repetitious motions, both of which became final judgments,

[were] an absolute bar to Russell again raising the claim at issue in this appeal.”

Court of Appeals of Indiana | Memorandum Decision 41A04-1504-CR-155 | September 29, 2015   Page 4 of 7
      Id. at *3. Additionally, we explained that, even if the doctrine of res judicata

      did not apply, Russell’s argument on appeal would fail because he did not claim

      that his sentence was erroneous on the face of the judgment and required

      consideration of materials outside of the judgment. Id. We further explained

      that, pursuant to Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004), his

      argument was not one that could be adjudicated through a motion to correct

      erroneous sentence and should have, instead, been brought in a petition for

      post-conviction relief. Id. at *4.


[4]   On March 2, 2015, Russell, pro se, filed his fourth motion to correct erroneous

      sentence pursuant to INDIANA CODE § 35-38-1-15. In his motion, Russell

      attacked his habitual offender enhancement and argued that: (1) the State had

      used related felonies as the basis of his habitual offender enhancement; and (2)

      the charging information for his habitual offender allegation was insufficient

      because it did not contain offense and sentencing dates for his prior convictions.

      Ten days later, the trial court denied Russell’s motion. Russell now appeals.1


                                                    Decision
[5]   Russell appeals the trial court’s denial of his motion to correct erroneous

      sentence pursuant to INDIANA CODE § 35-38-1-15. We review a trial court’s




      1
        The same day that Russell filed his motion to correct erroneous sentence, he also filed a “Motion for
      Change of Venue from Judge” and a “Verified Application for Leave to Prosecute or Defendant [sic] Action
      as a Poor Person and for Assignment of Counsel.” (App. 12). The trial court denied these motions on the
      same day as it denied Russell’s motion to correct erroneous sentence. Russell does not appeal the denial of
      these other motions.

      Court of Appeals of Indiana | Memorandum Decision 41A04-1504-CR-155 | September 29, 2015         Page 5 of 7
      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).


[6]   An inmate who believes 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:


              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.


[7]   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.” Robinson, 805 N.E.2d 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.


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      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 henceforth be strictly applied[.]” Id.


[8]   Here, Russell does not allege that his sentence is facially erroneous. Instead, he

      challenges his habitual offender determination and enhancement. The errors he

      alleges are not clear from the face of the sentencing order and are not

      appropriate for a motion to correct erroneous sentence. See Robinson, 805

      N.E.2d at 787. Accordingly, because he has failed to show that the trial court

      abused its discretion by denying his motion, we affirm the trial court’s

      judgment. See, e.g., Bauer v. State, 875 N.E.2d 744, 746 (Ind. Ct. App. 2007)

      (affirming the trial court’s denial of the defendant’s motion to correct erroneous

      sentence where the defendant’s claims required consideration of matters in the

      record outside the face of the judgment and were, accordingly, not the types of

      claims properly presented in a motion to correct erroneous sentence), trans.

      denied.


[9]   Affirmed.


      Vaidik, C.J., and Robb, J., concur.




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