MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Oct 31 2018, 10:53 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
Terry Hodge                                              Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry A. Hodge,                                          October 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1449
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane R. Boswell,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Kathleen A.
                                                         Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G03-0509-FC-120



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1449 | October 31, 2018               Page 1 of 5
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Terry Hodge (Hodge), appeals the trial court’s denial of

      his motion to correct erroneous sentence.


[2]   We affirm.


                                                    ISSUE
[3]   Hodge presents one issue on appeal: Whether the trial court abused its

      discretion when it denied his motion to correct erroneous sentence.


                      FACTS AND PROCEDURAL HISTORY
[4]   On November 9, 1993, the State charged Hodge with felony murder; murder;

      attempted robbery, a Class A felony; attempted murder, a Class A felony; and

      carrying a handgun without a license, a Class D felony. The State also alleged

      that Hodge was an habitual offender. On September 16, 1994, following a jury

      trial, Hodge was found guilty of murder and attempted murder. The jury also

      found that Hodge was an habitual offender.


[5]   On December 6, 1994, the trial court sentenced Hodge to the Indiana

      Department of Correction for forty years for murder and thirty years for

      attempted murder, to be served consecutively. The trial court enhanced

      Hodge’s attempted murder sentence by twenty-five years for being an habitual

      offender. Hodge’s aggregate sentence is ninety-five years.


[6]   Hodge’s convictions and sentence were affirmed on direct appeal by our

      supreme court in 1997 in Hodge v. State, 688 N.E.2d 1246 (Ind. 1997). The

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1449 | October 31, 2018   Page 2 of 5
      denials of his petition for post-conviction relief and his successive petition for

      post-conviction relief were affirmed by this court in 2001 and 2010, respectively.

      On May 7, 2018, Hodges filed a motion to correct erroneous sentence in which

      he argued that his sentence must be corrected because the trial court imposed a

      sentence in excess of that allowed for criminal convictions arising out of one

      episode of criminal conduct. On May 11, 2018, the trial court denied Hodge’s

      motion because it found that Hodge’s sentence was not erroneous on its face.


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


                              DISCUSSION AND DECISION
[8]   Hodge argues that the trial court abused its discretion when it denied his

      motion to correct erroneous sentence. Specifically, he alleges that his

      convictions were subject to a statutory sentencing cap as provided for in Indiana

      Code section 35-50-1-2 for convictions arising out of a single episode of

      criminal conduct and that his sentence is facially erroneous because he was

      sentenced in excess of that cap.


[9]   A defendant may file a motion to correct erroneous sentence pursuant to

      Indiana Code section 35-38-1-15 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.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1449 | October 31, 2018   Page 3 of 5
[10]   A motion to correct erroneous sentence may only be used to correct sentencing

       errors that are clear from the face of the sentencing judgment in light of

       statutory authority. Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Claims

       that require consideration of the proceedings before, during, or after trial may

       not be presented in a motion to correct erroneous sentence. Id. We review a

       trial court’s denial of a motion to correct erroneous sentence for an abuse of the

       trial court’s discretion. Hobbs v. State, 71 N.E.3d 46, 48 (Ind. Ct. App. 2017),

       trans. denied.


[11]   Hodge claims that his sentence is erroneous because it was in excess of that

       allowed for convictions arising out of a single episode of criminal conduct

       under sentencing statute Indiana Code section 35-50-1-2. Assuming without

       deciding that Indiana Code section 35-50-1-2 applies to Hodge’s sentence,

       Hodge’s claim of erroneous sentence is unavailing. The term “episode of

       criminal conduct” is defined as “offenses or a connected series of offenses that

       are closely related in time, place, and circumstance.” I.C. 35-50-1-2(b).

       Whether offenses constitute a single episode of criminal conduct is necessarily a

       fact-sensitive inquiry to be determined by the trial court. Schlichter v. State, 779

       N.E.2d 1155, 1157 (Ind. 2002).


[12]   In order to evaluate Hodge’s claim, it would be necessary to evaluate the

       evidence adduced at trial to determine if his convictions were so closely related

       in time, place, and circumstance that they constituted a single episode of

       criminal conduct. That would entail consideration of matters extrinsic to the

       sentencing judgment, which a court is not allowed to do when reviewing a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1449 | October 31, 2018   Page 4 of 5
       motion to correct erroneous sentence. Robinson, 805 N.E.2d at 787. This is

       why Hodge’s sentence is not erroneous on its face. As such, we conclude that

       the trial court did not abuse its discretion when it denied Hodge’s motion to

       correct erroneous sentence.


                                             CONCLUSION
[13]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it denied Hodge’s motion to correct erroneous sentence

       because his sentence was not facially erroneous.


[14]   Affirmed.


[15]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1449 | October 31, 2018   Page 5 of 5
