FOR PUBLICATION                                             FILED
                                                         Nov 21 2012, 8:32 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court



APPELLANT PRO SE:                             ATTORNEYS FOR APPELLEE:

ROBERT D. DAVIS                               GREGORY F. ZOELLER
Carlisle, Indiana                             Attorney General of Indiana

                                              JOSEPH Y. HO
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

ROBERT D. DAVIS,                              )
                                              )
     Appellant-Defendant,                     )
                                              )
            vs.                               )    No. 11A01-1204-CR-251
                                              )
STATE OF INDIANA,                             )
                                              )
     Appellee-Plaintiff.                      )


                    APPEAL FROM THE CLAY SUPERIOR COURT
                     The Honorable Diana LaViolette, Special Judge
                            Cause No.11D01-9204-CF-205



                                 November 21, 2012


                            OPINION - FOR PUBLICATION


BROWN, Judge
      Robert D. Davis, pro se, appeals the trial court’s denial of his motion to correct

erroneous sentence. Davis raises one issue which we revise and restate as whether the

trial court erred by denying his motion to correct erroneous sentence. We affirm.

      The relevant facts follow. In 1992, the State charged Davis with eight counts. On

March 2, 1994, the trial court found Davis guilty of Count II, possession of a schedule II

drug as a class D felony, Count III, dealing in marijuana as a class D felony, and Count

IV, possession of marijuana as a class D felony. On April 20, 1994, the court sentenced

Davis to three years for each count. The court stated: “counts 3 and 4 shall be merged for

sentencing and shall run concurrently with that term of imprisonment imposed on count

2, and count 2 shall be consecutively to counts 3 and 4.” Appellee’s Appendix at 1. A

chronological case summary entry states that “counts 3 and 4 merged for sentencing and

run concurrently with term imposed on Co. 2 and Co 2 consecutively to cos. 3 and 4.”

Appellant’s Appendix at 5.

      On direct appeal, this court sua sponte addressed the entry of a judgment of

conviction and imposition of sentence on the lesser included offense of possession of

marijuana. Davis v. State, 642 N.E.2d 987, 990 (Ind. Ct. App. 1994). The court held that

“[i]n the double jeopardy context, a second conviction is an additional punishment even if

that conviction results in a sentence which runs concurrent with the first conviction.” Id.

The court stated that “the proper remedy is to remand to the trial court for a new

sentencing order which vacates the conviction and sentence on the lesser count.” Id. The

court concluded: “Judgment affirmed but the cause is remanded with instructions to



                                            2
vacate the judgment of conviction and sentence on the lesser offense of possession of

marijuana.” Id.

       On January 26, 1995, Davis appeared by counsel at a hearing, and the court

entered an order vacating Davis’s conviction and sentence for Count IV, possession of

marijuana as a class D felony.1

       On December 15, 2011, Davis filed a pro se motion to correct erroneous sentence.

Davis argued that his sentence was erroneous because the trial court failed to follow the

instructions of the Court of Appeals, his presence with counsel was necessary at the

January 26, 1995 hearing, and he was entitled to be resentenced under the laws in effect

at that time. On March 28, 2012, the court denied Davis’s motion to correct erroneous

sentence.

       The issue is whether the trial court erred by denying Davis’s motion. Davis

appears to argue that the court erred by failing to enter a new sentencing order instead of

merely amending the previous sentencing order. Davis also argues that his presence was

required at the January 26, 1995 hearing. Davis argues that “it is uncontroverted that

neither [he] nor counsel was present when [his] sentence was corrected,” and that “[t]he

proper remedy is to reimpose the order correcting the sentence in [his] presence with

counsel.” Appellant’s Brief at 7. Davis also argues that Ind. Code § 35-50-1-2 was


       1
           Specifically, the court’s order stated:

       Court . . . finds that judgment of conviction imposed on Count 4, Possession of
       Marijuana, a Class D felony is now vacated and said sentence was ordered to run
       concurrently to all other sentences, now vacates said sentence[.] In all other respects
       courts [sic] previous order shall remain in full force and effect.

Appellee’s Appendix at 2.
                                                     3
amended in 1994 and that this amendment should have limited the trial court’s

consecutive sentencing.

         The State argues that Davis’s arguments require this court to consider matters

outside the face of the sentencing order and that a motion to correct erroneous sentence is

inappropriate. The State asserts that Davis’s arguments are without merit even assuming

that a motion to correct erroneous sentence is appropriate. The State also contends that

because “this Court did not disturb the trial court’s judgment in any other respects,

[Davis’s] personal presence was not required and the trial court’s January 26, 1995,

Sentencing Order complied with this Court’s instructions.” Appellee’s Brief at 5.

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

for an abuse of discretion. 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. Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App.

1999).

         An inmate who believes he has been erroneously sentenced may file a motion to

correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888 N.E.2d 1249,

1250-1251 (Ind. 2008). Ind. 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.

         In Robinson v. State, the Indiana Supreme Court noted that a motion to correct

erroneous sentence is available only when the sentence is “erroneous on its face.” 805
                                          4
N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court emphasized that “a motion to

correct an erroneous sentence may only arise out of information contained on the formal

judgment of conviction . . . .” Neff, 888 N.E.2d at 1251 (citing Robinson, 805 N.E.2d at

793-794). A motion to correct 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.             Claims that require consideration of the

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

correct erroneous sentence. Id. Sentencing claims that are not facially apparent “may be

raised only on direct appeal and, where appropriate, by post-conviction proceedings.” 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 . . . be strictly applied . . . .” Id.

       Even assuming that Davis may argue in a motion to correct erroneous sentence

that the trial court’s January 26, 1995 order did not follow the instructions of this court,

we observe that the court’s order vacated the judgment of conviction and sentence on

Count IV, possession of marijuana as a class D felony, which was the instruction of this

court in its opinion on direct appeal.

       With respect to Davis’s argument that “it is uncontroverted that neither [he] nor

counsel was present when [his] sentence was corrected,” Appellant’s Brief at 7, we

observe that the court’s January 26, 1995 order stated that Davis appeared by counsel. In

support of his argument that his presence was necessary at the January 26, 1995 hearing,

Davis cites Ind. Code § 35-38-1-15.

                                                  5
        The Indiana Supreme Court has addressed a trial court’s responsibility when a

criminal case is remanded for a new sentencing order. Specifically, the Court has held:

        Unless this Court specifically directs otherwise, a trial court’s responsibility
        in that circumstance is to produce a new sentencing order that responds to
        the concerns this Court has raised. Depending upon the nature of those
        concerns, this responsibility may be discharged by the trial court (1) issuing
        a new sentencing order without taking any further action; (2) ordering
        additional briefing on the sentencing issue and then issuing a new order
        without holding a new sentencing hearing; or (3) ordering a new sentencing
        hearing at which additional factual submissions are either allowed or
        disallowed and then issuing a new order based on the presentations of the
        parties.

O’Connell v. State, 742 N.E.2d 943, 952-953 (Ind. 2001) (emphases added). Thus, based

upon the nature of the concerns raised by this court in Davis’s direct appeal, we cannot

say that a new sentencing hearing was required. We also observe that Davis would not

have been entitled to present additional evidence before the court entered its January 26,

1995 order.2 Moreover, Ind. Code § 35-38-1-15 “is applicable only when a defendant

files a motion to correct an erroneous sentence.” Ousley v. State, 807 N.E.2d 758, 760

(Ind. Ct. App. 2004). Thus, Ind. Code § 35-38-1-15 is not applicable here because the

court’s January 26, 1995 order followed this court’s decision and not a motion to correct

erroneous sentence.3 We cannot say that the court erred on this basis.

        2
           Cf. Saylor v. State, 765 N.E.2d 535, 560 (Ind. 2002) (addressing petitioner’s argument that his
appellate counsel rendered ineffective assistance for not raising the issue that he was not allowed the
opportunity to present evidence at the time the trial court entered its new sentencing order imposing the
death penalty where the Indiana Supreme Court had previously entered an order remanding the cause to
the trial court with instructions to reconsider its sentencing order because it appeared the trial court had
improperly relied upon victim impact evidence and holding that defendant was entitled to be present in
that circumstance), reh’g granted and rev’d on other grounds, 808 N.E.2d 646 (Ind. 2004).
        3
           Davis cites Collier v. State, 572 N.E.2d 1299 (Ind. Ct. App. 1991), trans. denied. In Collier,
Danny Collier was resentenced after a direct appeal in which the Indiana Supreme Court had remanded
for a statement of reasons for sentencing and a specification of which felony was being enhanced by the
habitual offender penalty. 572 N.E.2d at 1300-1301 (citing Collier v. State, 498 N.E.2d 1219, 1221 (Ind.
                                                     6
        To the extent that Davis argues that he was entitled to be resentenced under the

laws in effect at the time of the resentencing and that the amendment in 1994 of Ind.

Code § 35-50-1-2 should have limited the trial court’s authority with respect to

consecutive sentencing, we observe that the version of Ind. Code § 35-50-1-2 prior to the

1994 amendment provided in part that “the court shall determine whether terms of

imprisonment shall be served concurrently or consecutively.” In 1994, the statute was

amended to provide:

        [T]he court shall determine whether terms of imprisonment shall be served
        concurrently or consecutively. . . . However, except for murder and felony
        convictions for which a person receives an enhanced penalty because the
        felony resulted in serious bodily injury if the defendant knowingly or
        intentionally caused the serious bodily injury, under IC 35-50-2-8 and IC
        35-50-2-10, to which the defendant is sentenced for felony convictions
        arising out of an episode of criminal conduct shall not exceed the
        presumptive sentence for a felony which is one (1) class of felony higher
        than the most serious of the felonies for which the person has been
        convicted.

Pub. L. No. 164-1994, § 1 (eff. July 1, 1994).

        Generally, courts must sentence defendants under the statute in effect at the time

the defendant committed the offense. Palmer v. State, 679 N.E.2d 887, 892 (Ind. 1997).

When, however, the legislature enacts an ameliorative amendment without including a

1986)). On appeal from the denial of his petition for post-conviction relief, Collier raised the issue of
whether he was denied due process of law when the trial court resentenced him on remand after his direct
appeal without him or his counsel being present. Id. The court observed that it was uncontroverted that
neither Collier nor his counsel was present when his sentence was corrected. Id. at 1303. The court cited
Ind. Code § 35-38-1-15 and held that the proper remedy for this defect was to remand to the trial court
with instructions to reimpose the order correcting the sentence in the defendant’s presence. Id. Collier is
distinguishable in that here the CCS indicates that Davis’s counsel was present and because the remand
by this court did not order the trial court to provide a statement of reasons for sentencing. Additionally,
the Indiana Supreme Court has clarified that a new sentencing hearing was not required. See Taylor v.
State, 840 N.E.2d 324, 342 (Ind. 2006) (holding that when a case is remanded for a new sentencing order
the trial court may discharge the responsibility by issuing a new sentencing order without taking any
further action or ordering additional briefing on the sentencing issue and then issuing a new order without
holding a new sentencing hearing) (citing O’Connell, 742 N.E.2d at 953).
                                                    7
specific savings clause, the new statute will apply to all those sentenced after its effective

date. Id. When a court sentences a defendant before the effective date of an ameliorative

amendment, the new statute does not apply unless the legislature expressly designates

that the new statute applies retroactively.              Id.   If an appellate court remands for a

technical correction of a sentence, and not for re-sentencing, the general rule, that the

court sentences the defendant under the statute in effect at the time the defendant

committed the offense, applies. Id.

       Even assuming, without deciding, that the 1994 amendment applied at the time

that the court entered its order on January 26, 1995, Davis does not develop a cogent

argument with respect to how the 1994 amendment would have affected his sentence.

Moreover, to the extent that Davis suggests that the trial court’s ability would have been

limited by the 1994 amendment, such a conclusion would require a determination of

whether Davis’s offenses were closely related in time, place, and circumstance and the

specific facts underlying each count. As noted above, a motion to correct erroneous

sentence is “available only to correct sentencing errors clear from the face of the

judgment.” Robinson, 805 N.E.2d at 794. Thus, Davis’s argument is not properly

presented by way of a motion to correct erroneous sentence.4 As a result, we cannot say

that the trial court abused its discretion by denying Davis’s motion. See Jackson v. State,

806 N.E.2d 773, 774 (Ind. 2004) (holding that the trial court properly denied the

defendant’s motion to correct erroneous sentence and noting that a motion to correct

erroneous sentence is available only to correct sentencing errors clear from the face of the

       4
           Our ruling today does not impact whatever right Davis may have to seek post-conviction relief.

                                                     8
judgment); Bauer v. State, 875 N.E.2d 744, 746 (Ind. Ct. App. 2007) (noting that the

defendant’s claims required consideration of matters in the record outside the face of the

judgment and accordingly they are not the types of claims that are properly presented in a

motion to correct erroneous sentence), trans. denied.

      For the foregoing reasons, we affirm the denial of Davis’s motion to correct

erroneous sentence.

      Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.




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