MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                 Aug 17 2018, 8:55 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
Charles Kinnel                                           Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Kinnel,                                          August 17, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1708-CR-1892
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Respondent.                                     Hawkins, Judge
                                                         Trial Court Cause No.
                                                         CR82156E



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018            Page 1 of 5
                                          Case Summary
[1]   Charles Kinnel (“Kinnel”) brings this pro se appeal from the denial of his

      motion to correct error, which related to the denial of his motion to correct a

      facially erroneous sentence pursuant to Indiana Code Section 35-38-1-15.

      Kinnel argues that the trial court abused its discretion by declining to correct the

      alleged sentencing error. We affirm.



                            Facts and Procedural History
[2]   In the 1980s, Kinnel was convicted of murder, robbery, and conspiracy to

      commit robbery, and received an aggregate sentence of 110 years in prison.

      Kinnel’s direct appeal was unsuccessful, but he later obtained post-conviction

      relief that resulted in a vacated sentence with respect to the robbery conviction.

      Kinnel eventually brought the instant motion to correct erroneous sentence,

      which the trial court denied. The trial court then denied Kinnel’s motion to

      correct error. Although Kinnel initially filed a belated appeal that resulted in its

      dismissal, this Court reinstated the appeal upon Kinnel’s request.



                                 Discussion and Decision
[3]   Generally, we review a ruling on a motion to correct error “only for abuse of

      discretion.” Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). “But when . . . a

      motion to correct error depends on a question of law, we review the trial court’s

      resolution of that question de novo.” Id. In this case, the motion to correct error

      involved the denial of a motion to correct erroneous sentence.
      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018   Page 2 of 5
[4]   Independent of pursuing a direct appeal or seeking post-conviction relief, an

      individual may challenge his sentence by filing a motion to correct erroneous

      sentence in accordance with Indiana Code Section 35-38-1-15. See Robinson v.

      State, 805 N.E.2d 783, 786 (Ind. 2004). A court may grant the motion “only

      when the sentence is erroneous on its face.” Id. (quotation marks omitted).

      That is, where “sentencing errors . . . are clear from the face of the judgment

      imposing the sentence in light of the statutory authority.” Id. at 787. Thus, a

      motion to correct erroneous sentence is improper where its resolution would

      require “reference to other matters in or extrinsic to the record.” Id. at 787-88.


[5]   At bottom, Kinnel argues that his sentence is erroneous due to double jeopardy

      principles. That is, Kinnel asserts that his conspiracy to commit robbery

      conviction was elevated to a Class A felony because of the same act of murder

      supporting his murder conviction, in violation of his rights. Yet, evaluating a

      claim of double jeopardy requires reference to offense-specific facts that are not

      apparent from the face of the judgment. See, e.g., Richardson v. State, 717 N.E.2d

      32, 50-55 (Ind. 1999) (articulating tests for double jeopardy). Kinnel attempts

      to escape this issue by arguing that the trial court should have entered a more

      specific judgment showing that he was convicted of “murder in the commission

      of robbery” instead of just “show[ing] that he was convicted of murder.”

      Appellant’s Br. at 7 (emphasis added). Yet, even if the judgment contained the

      additional language Kinnel suggests, there would still be no facially apparent

      violation of double jeopardy principles. Rather, to evaluate alleged error of this

      nature, the trial court would need to examine the facts supporting the murder

      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018   Page 3 of 5
      conviction and the elevation, including whether there were separate victims.

      See id. at 56 (Sullivan, J., concurring) (articulating the analysis for a double

      jeopardy claim involving an enhancement “for the very same behavior or harm

      as another crime for which the defendant has been convicted and punished,” in

      which case no relief would be provided “where separate victims are involved”).


[6]   Ultimately, based upon Kinnel’s motion to correct erroneous sentence, Kinnel

      would be entitled to relief only after consideration of the merits of his claim of

      double jeopardy—an allegation of error that cannot be addressed by referring

      only to the face of the judgment. Thus, the trial court could not have properly

      corrected Kinnel’s sentence upon a motion to correct erroneous sentence. See

      Robinson, 805 N.E.2d at 787 (“[T]he ‘facially erroneous’ prerequisite should

      henceforth be strictly applied.”); see also Micheau v. State, 74 N.E.3d 567 (Ind.

      Ct. App. 2017) (vacating the trial court’s grant of relief on double jeopardy

      grounds where the double jeopardy issue was raised in a motion to correct

      erroneous sentence), trans. denied.1 Accordingly, the trial court did not abuse its

      discretion by denying Kinnel’s motion to correct error and underlying motion.




      1
        Directing us to Woodcox v. State, 30 N.E.3d 748 (Ind. Ct. App. 2015), Kinnel asserts that a court may
      nevertheless look beyond the face of the judgment when doing so serves the interests of justice. However,
      Kinnel’s reliance on Woodcox is misplaced. There, this Court looked beyond a facially defective sentencing
      judgment to prevent an unjust “sentencing windfall”—where the facial defect arose from a clerical error
      showing a conviction for a Class B felony instead of the actual Class A felony. See Woodcox, 30 N.E.3d at
      752-53. Nonetheless, it is not as though Kinnel lacks a procedural vehicle to pursue his claim, as he may seek
      authorization to file a successive petition for post-conviction relief. See Ind. Post-Conviction Rule 12.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018            Page 4 of 5
[7]   Affirmed.


      Mathias, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1892 | August 17, 2018   Page 5 of 5
