MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any
                                                                Jun 01 2017, 9:21 am
court except for the purpose of establishing
the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Lionel Gibson                                            Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lionel Gibson,                                           June 1, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A03-1701-CR-130
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane R. Boswell,
Appellee-Respondent.                                     Judge
                                                         The Honorable Kathleen A.
                                                         Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G03-9703-CF-42



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-130 | June 1, 2017       Page 1 of 7
                                              Case Summary
[1]   On January 20, 2000, Appellant-Petitioner Lionel Gibson pled guilty to Class B

      felony voluntary manslaughter. Pursuant to the terms of his plea agreement,

      Gibson and Appellee-Respondent the State of Indiana (“the State”) agreed that

      Gibson would be sentenced to an executed term of ten years and that his

      sentence would be run consecutive to the sentence imposed in Cause #45G03-

      9703-CF-00043. The trial court subsequently accepted Gibson’s guilty plea

      agreement and sentenced him according to its terms. On December 19, 2016,

      Gibson filed a motion to correct erroneous sentence which was subsequently

      denied by the trial court.


[2]   On appeal, Gibson contends that the trial court erred in denying his motion.

      Because we conclude otherwise, we affirm.



                              Facts and Procedural History
[3]   Gibson killed Antione Patterson on or about March 5, 1997, after which he was

      charged with murder.1 On January 20, 2000, Gibson entered into a plea

      agreement with the State. The relevant terms of Gibson’s plea agreement

      provide as follows:




      1
        The details surrounding Patterson’s killing are unknown because Gibson failed to include the stipulated
      factual basis which detailed the killing and was filed together with his guilty plea in the record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-130 | June 1, 2017                   Page 2 of 7
              1. The defendant, Lionel Gibson, is currently charged under
              Cause #45G03-9703-CF-00042 with Murder and in Cause
              #45G03-9704-CF-00085 with Murder.
                                              ****
              6. That notwithstanding the above, the defendant has, with the
              assistance of counsel, entered into an Agreement with the State
              of Indiana, the terms of which are as follows:
                     a. The State agrees to file an amended information
                     charging the defendant with Voluntary
                     Manslaughter, a Class (B) Felony, in Cause #45G03-
                     9703-CF-00042;
                     b. The defendant agrees to plead guilty to the
                     amended charge of Voluntary Manslaughter, a Class
                     (B) Felony, in Cause #45G03-9703-CF-00042;
                     c. The parties agree that the defendant will be
                     sentenced to a term of ten (10) years incarceration in
                     Cause #45G03-9703-CF-00042. The parties further
                     agree that the sentence imposed in #45G03-9703-CF-
                     00042 shall be served consecutive to the sentence
                     imposed in Cause #45G03-9703-CF-00043;
                     d. At the time of sentencing, the State agrees to
                     dismiss Cause #45G03-9704-CF-00085[.]


      Appellant’s Apr. 21, 2017 App. Vol. II, p. 16. The trial court subsequently

      accepted the terms of Gibson’s plea agreement and, on February 11, 2000,

      sentenced Gibson according to its terms.


[4]   On December 19, 2016, Gibson filed a motion to correct erroneous sentence.

      Later that same day, the trial court denied Gibson’s motion. In denying

      Gibson’s motion to correct sentence, the trial court stated:


              The defendant files a pro se motion to correct erroneous sentence,
              which is denied for the reason that a motion to correct erroneous
              sentence may only be used to attack a sentence that is invalid on
      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-130 | June 1, 2017   Page 3 of 7
              its face. The sentence in this case is not erroneous on its face.
              Therefore, the issue raised must be addressed in a petition for
              post-conviction relief if the defendant wishes to attack his
              conviction and/or sentence.


      Appellant’s Apr. 4, 2017 App. Vol. II, p. 36 (emphasis in original). This appeal

      follows.



                                 Discussion and Decision
[5]   On appeal, Gibson contends that the trial court abused its discretion in denying

      his motion to correct erroneous sentence, arguing that the trial court erred in

      finding that his sentence in the instant matter was statutorily required to run

      consecutive to his sentence in Cause #45G03-9703-CF-00043. “When we

      review the court’s decision on a motion to correct erroneous sentence, we defer

      to the trial court’s factual finding and review its decision only for abuse of

      discretion.” Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010) (internal

      quotations omitted). “An abuse of discretion occurs when the trial court’s

      decision is against the logic and effect of the facts and circumstances before it.”

      Id.


[6]   In seeking the requested relief, Gibson cites to Indiana Code section 35-38-1-15,

      which provides as follows:


              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

      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-130 | June 1, 2017   Page 4 of 7
              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.


      “The purpose of the statute ‘is to provide prompt, direct access to an

      uncomplicated legal process for correcting the occasional erroneous or illegal

      sentence.’” Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (quoting Gaddie

      v. State, 566 N.E.2d 535, 537 (Ind. 1991)). “When an error related to

      sentencing occurs, it is in the best interests of all concerned that it be

      immediately discovered and corrected.” Id. at 786.


[7]   While the motion to correct sentence is available as a potential remedy, we

      have repeatedly cautioned that it is appropriate only when the sentence is

      erroneous on its face. Id. (internal quotations omitted). “When a motion to

      correct sentence presents a claim that 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, such a motion may be expeditiously

      considered and corrections made without invoking post-conviction

      proceedings.” Id. at 787-88. However,


              [w]hen claims of sentencing errors require consideration of
              matters outside the face of the sentencing judgment, they are best
              addressed promptly on direct appeal and thereafter via post-
              conviction relief proceedings where applicable. 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.… We
              therefore hold that a motion to correct sentence may only be used
              to correct sentencing errors that are clear from the face of the

      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-130 | June 1, 2017   Page 5 of 7
              judgment imposing the sentence in light of the statutory
              authority. Claims that require consideration of the proceedings
              before, during, or after trial may not be presented by way of a
              motion to correct sentence.


      Id. at 787.


[8]   The sentencing order at issue in this appeal provides, in relevant part, as

      follows:


              The defendant is committed to the custody of the Department of
              Correction for classification and confinement in a maximum
              security facility for a period of ten (10) years.

              The sentence of imprisonment shall run consecutively to the
              sentence imposed in cause 45G03-9703-CF-00043 for the reason
              that it is mandatory pursuant to I.C. 35-50-1-2(2).


      Appellant’s Apr. 4, 2017 App. Vol. II, p. 13. Again, in denying Gibson’s

      motion to correct sentence, the trial court stated:


              The defendant files a pro se motion to correct erroneous sentence,
              which is denied for the reason that a motion to correct erroneous
              sentence may only be used to attack a sentence that is invalid on
              its face. The sentence in this case is not erroneous on its face.
              Therefore, the issue raised must be addressed in a petition for
              post-conviction relief if the defendant wishes to attack his
              conviction and/or sentence.


      Appellant’s Apr. 4, 2017 App. Vol. II, p. 36 (emphasis in original).


[9]   Review of the trial court’s sentencing order indicates that the trial court

      appropriately denied Gibson’s motion to correct an erroneous sentence because

      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-130 | June 1, 2017   Page 6 of 7
       the trial court’s order is not erroneous on its face. The trial court sentenced

       Gibson within the statutory range for a class B felony. Further, the trial court

       correctly cited to Indiana Code section 35-50-1-22 for the proposition that

       Gibson’s sentence was required to be run consecutive to his sentence in Cause

       #45G03-9703-CF-00043. Thus, the trial court correctly recognized that

       Gibson’s argument as to why his sentence was erroneous required

       consideration of matters outside the face of the sentencing order. Accordingly,

       we affirm the judgment of the trial court.


[10]   The judgment of the trial court is affirmed.


       Najam, J., and Riley, J., concur.




       2
          The version of Indiana Code section 35-50-1-2 in effect at the time Gibson committed the criminal
       offense at issue provided as follows:
                (a) As used in this section, “crime of violence” means:
                                                              ****
                (2) voluntary manslaughter (IC 35-42-1-3);
                                                              ****
                (d) If, after being arrested for one (1) crime, a person commits another crime:
                           (1) before the date the person is discharged from probation, parole, or
                           a term of imprisonment imposed for the first crime; or
                           (2) while the person is released:
                                    (A) upon the person’s own recognizance; or
                                    (B) on bond;
                the terms of imprisonment for the crimes shall be served consecutive, regardless of the
                order in which the crimes are tried and the sentences imposed.

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