Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                               FILED
                                                             Jan 09 2012, 8:21 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                              CLERK
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APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

JESSE BAKER                                      GREGORY F. ZOELLER
Pendleton, Indiana                               Attorney General of Indiana

                                                 NICOLE M. SCHUSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


JESSE BAKER,                                     )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 49A02-1104-CR-386
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Robert R. Altice, Judge
                         The Honorable Amy J. Barbar, Magistrate
                             Cause No. 49G02-0001-PC-2522


                                      January 9, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
                                    Case Summary

      Jesse Baker appeals the trial court’s denial of his motion to correct erroneous

sentence. We affirm.

                                          Issue

       Baker raises one issue, which we restate as whether the trial court abused its

discretion by denying his motion to correct erroneous sentence.

                                         Facts

      In 2000, the trial court sentenced Baker to twenty years for his conviction for

Class B felony aggravated battery, enhanced by twenty years for his status as an habitual

offender. The trial court ordered that the sentence be consecutive to a twenty-year

sentence for Baker’s conviction for Class B felony possession of a firearm by a serious

violent felon, for an aggregate sentence of sixty years. We affirmed Baker’s convictions

on direct appeal. Baker v. State, 747 N.E.2d 633 (Ind. Ct. App. 2001), trans. denied.

Baker then filed a petition for post-conviction relief, which the post-conviction court

denied. On appeal, we affirmed the denial of Baker’s petition for post-conviction relief.

Baker v. State, No. 49A05-0408-PC-451 (Ind. Ct. App. Feb. 15, 2005).

      In March 2011, Baker filed a pro se motion to correct erroneous sentence. Baker

argued that the same underlying conviction could not be used to support both his

conviction for possession of a firearm by a serious violent felon and his status as an

habitual offender. The trial court denied the motion, finding that Baker’s claims did not

involve sentencing errors that were clear from the face of the judgment. Baker now

appeals.

                                            2
                                         Analysis

       Baker argues that the trial court erred by denying his motion to correct erroneous

sentence.   When reviewing a trial court’s decision to deny a motion to correct an

erroneous sentence, we defer to the trial court’s factual findings and review such decision

for an abuse of discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An

abuse of discretion will be found only when the trial court’s decision is against the logic

and effect of the facts and circumstances before it. Id. However, the trial court’s legal

conclusions are reviewed under a de novo standard of review. Id.

       An inmate who believes he or she has been erroneously sentenced may file a

motion to correct the sentence pursuant to Indiana Code Section 35-38-1-15:

              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.

A motion to correct erroneous sentence may be filed only to address a sentence that is

“erroneous on its face.” Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008) (quoting

Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004)). Other sentencing errors must be

addressed via direct appeal or post-conviction relief. Id. In addition, a motion to correct

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

of conviction, not from the abstract of judgment. Id. If the county does not issue




                                             3
judgments of conviction, such as in Marion County, then the trial court’s abstract of

judgment will serve as an appropriate substitute for purposes of making the claim. Id.

          On appeal, Baker argues that the same underlying conviction could not be used to

support both his conviction for possession of a firearm by a serious violent felon and his

status as an habitual offender.1 Baker’s appendix does not contain the trial court’s

abstract of judgment, but it does contain the Chronological Case Summary, which

explains the trial court’s order regarding his sentences.                Details of the underlying

convictions used to support his conviction for possession of a firearm by a serious violent

felon and his status as an habitual offender are not evident from the trial court’s

judgment. His argument may be considered only by reference to matters outside of the

face of the trial court’s orders. Baker has failed to establish any facial error in his

sentencing judgment. Consequently, his argument must be raised, if at all, through a

successive petition for post-conviction relief. The trial court did not abuse its discretion

when it denied Baker’s motion to correct erroneous sentence.

                                             Conclusion

          The trial court properly denied Baker’s motion to correct erroneous sentence. We

affirm.

          Affirmed.

1
  Baker also argues on appeal that he was improperly found to be an habitual offender “where the State
failed to prove the required statutory sequence of the commissions of two prior unrelated felonies and
their relation to the present underlying felony.” Appellant’s Br. p. 4. Baker did not make this argument
to the trial court in his motion to correct erroneous sentence. He, therefore, has waived this argument.
Stokes v. State, 908 N.E.2d 295, 301 (Ind. Ct. App. 2009) (holding that “the failure to object at trial
results in a waiver of an issue on appeal”), trans. denied. Waiver notwithstanding, this argument also
requires consideration of matters outside the face of the trial court’s sentencing order. Consequently, it
cannot be raised by way of a motion to correct erroneous sentence.
                                                    4
KIRSCH, J., and BRADFORD, J., concur.




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