MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Nov 13 2019, 9:34 am

court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Shawn Twitty                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                       Attorney General of Indiana

                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Shawn Twitty,                                           November 13, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-500
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G06-9503-CF-33600



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019             Page 1 of 9
                                     Statement of the Case
[1]   Shawn Twitty appeals from the denial of his motion to correct erroneous

      sentence, contending that the doctrine of amelioration applies. Finding that

      Twitty has already challenged his consecutive sentences, raising the same issue

      several times, we affirm the decision of the trial court, rejecting his most recent

      challenge.


                                                    Issue
[2]   Twitty presents the following issue which we restate as the following question:

      Did the trial court err by denying Twitty’s motion to correct erroneous

      sentence?


                               Facts and Procedural History
[3]   In a memorandum decision, a panel of this court affirmed Twitty’s convictions

      of three counts of attempted murder, each as a Class A felony, and one count of

      carrying a handgun without a license, a Class A misdemeanor, and affirmed the

      trial court’s sentencing decision. Twitty v. State, No. 49A05-9601-CR-16, slip

      op. at 2-3 (Ind. Ct. App. Aug. 18, 1997), trans. denied (“Twitty I”). The facts

      recited in the direct appeal follow:


              On the night of March 4, 1995, Garcia Scott, Chabwera
              Underwood, and Craig Mushatte went with a group of friends to
              the Barritz Nightclub in Indianapolis. While they were there, a
              fight broke out between the group and Shawn Twitty and his
              friends. After the two groups were ejected from the club, the
              fight continued in the parking lot, where Scott and Underwood

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019   Page 2 of 9
              were both shot in the head. Scott was permanently blinded as a
              result of the shooting and Underwood suffered irreversible
              memory loss and motor skills impairment.


              At Twitty’s jury trial, Mushatte testified that he saw Twitty
              remove a gun from the trunk of a car and shoot it at Mushatte,
              Scott, and Underwood. Mushatte testified that he believed the
              weapon was a nine millimeter gun. Twitty and others left in the
              car from which Twitty had removed the gun. The car was later
              found at Twitty’s residence. Police at the crime scene found a
              spent bullet jacket which a ballistics expert testified was fired
              from a nine millimeter gun. Two days later, Mushatte identified
              Twitty in a photo array as the person who fired the gun.


              Twitty received forty-five year sentences on each of the three
              attempted murder counts and a one year sentence on the fourth
              count, carrying a handgun without a license. The sentences for
              counts I and II were to be served consecutively, and the sentences
              on counts II and IV were to be served concurrently with the
              sentences for counts I and II.


[4]   Twitty filed a petition for post-conviction relief on November 9, 1998. After

      amendments by counsel, among the issues presented to the post-conviction

      court was that appellate counsel did not argue on direct appeal that the trial

      court erred in imposing consecutive sentences. The post-conviction court

      denied Twitty’s petition, and the denial was affirmed on appeal. Twitty v. State,

      49A02-0503-PC-199 (Ind. Ct. App. Sept. 13, 2005) (“Twitty II”).


[5]   On January 28, 2019, Twitty moved to correct erroneous sentence, raising the

      doctrine of amelioration in support of that motion. His motion was denied and

      this appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019   Page 3 of 9
                                   Discussion and Decision
[6]   Twitty challenges the denial of his motion to correct erroneous sentence, in

      which he cited Indiana Code section 35-38-1-15 (1983), 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
              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.


[7]   Our Supreme Court has stated that 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) (citation omitted). A motion to correct erroneous sentence is

      appropriate only when the sentencing error is “clear from the face of the

      judgment imposing the sentence in light of the statutory authority.” Id. 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.

      Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct. App. 2010), trans. denied. Such claims

      should instead be addressed on direct appeal or through post-conviction relief.

      Robinson, 805 N.E.2d at 787. A motion to correct erroneous sentence is a

      narrow remedy, and a reviewing court will strictly apply the requirement of a

      facially erroneous sentence. Id.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019   Page 4 of 9
[8]    On appeal, we review a trial court’s denial of a motion to correct erroneous

       sentence for an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct.

       App. 2012). 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.


[9]    In the direct appeal of his convictions and sentencing, a panel of this court

       addressed Twitty’s challenge to his sentence, which included an argument that

       the trial court erred by imposing consecutive forty-five year sentences for two of

       the attempted murder counts. Twitty’s argument on direct appeal, as pertained

       to his sentence, specifically referred to Indiana Code section 35-50-1-2(c),

       limiting the total of the consecutive terms of imprisonment for felony

       convictions arising out of a single episode of criminal conduct. The exceptions

       listed in the subsection of the statute included murder and felony convictions

       for which an enhanced sentence is imposed because the defendant knowingly

       and intentionally caused serious bodily injury to the victim. Twitty argued,

       without citation to authority, that because attempted murder is a crime separate

       from murder, and, thus not among the statutory exceptions, he could not be

       sentenced to a term of more than fifty years, which was the presumptive

       sentence for murder at the time. See Ind. Code § 35-50-2-3 (1994).


[10]   Instead of deeming the issue waived for failure to cite to authority, we

       considered the argument and reviewed case law, ultimately concluding that the

       statutory reference to murder convictions necessarily included attempted

       murder convictions as exempt from consecutive sentencing limitations. Twitty

       I, slip op. at 5-7.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019   Page 5 of 9
[11]   In 1998, Twitty filed a petition for post-conviction relief. After amendments by

       counsel, among the issues presented to the post-conviction court was whether

       Twitty had received ineffective assistance of trial and appellate counsel. On

       January 12, 2005, the post-conviction court denied the petition.


[12]   Next, Twitty appealed the denial of his petition for post-conviction relief. As

       respects his sentencing challenges, Twitty presented those arguments in his

       claim of ineffective assistance of appellate counsel. Shortly after our decision in

       Twitty’s direct appeal, our Supreme Court handed down a case discussing how

       to treat consecutive sentencing in attempted murder cases. See Greer v. State,

       684 N.E.2d 1140 (Ind. 1997).


[13]   Greer defined the steps to be taken in analyzing whether consecutive sentences

       are warranted under the sentencing statute in effect at that time. The first step

       is to identify the presumptive sentence for the felony that is one class higher

       than the most serious felony with which the defendant was charged. 684

       N.E.2d at 1142. Murder is the next highest offense, therefore, the presumptive

       sentence is fifty years. Regarding Greer’s convictions for three counts of

       attempted murder and one count of criminal deviate conduct, for which

       consecutive sentences were imposed, the next step is to determine if the

       defendant received an enhanced penalty because the felony resulted in serious

       bodily injury, and, if so, did the defendant knowingly or intentionally cause the

       serious bodily injury. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019   Page 6 of 9
[14]   In Twitty’s case, the trial court enhanced all three attempted murder

       convictions to forty-five years based in pertinent part on the seriousness of the

       crime. Twitty I, slip op. at 8. We found that the evidence was sufficient to

       support Twitty’s conviction, which meant that his conduct was done knowingly

       and intentionally. Id. at 5. The specific circumstances of the crime, beyond

       that which is needed to support an attempted murder conviction, establish that

       the enhanced penalty was imposed because the felony resulted in serious bodily

       injury. Scott was permanently blinded because of the shooting and Underwood

       suffered irreversible memory loss and motor skills impairment.


[15]   Twitty argued in his petition that appellate counsel should have cited to Greer in

       the petition to transfer filed in his case. When reviewing this argument, we

       noted that the Supreme Court reached the same conclusion as did our court in

       Twitty’s direct appeal, but reached that conclusion applying a different

       rationale. After reciting Twitty’s burden of establishing the claim and the

       deference afforded to appellate counsel’s choice of which issues to raise on

       appeal, we concluded that appellate counsel was not ineffective. Twitty II, slip

       op. at 17-19. Citation to Greer would not have provided Twitty the sentencing

       relief he was seeking.


[16]   Twitty argues that his consecutive sentences for two of the attempted murder

       counts is erroneous on the face of the sentencing order. The State contends

       that: (1) the sentencing order is not erroneous on its face; (2) the doctrine of

       amelioration is inapplicable; and (3) Twitty’s claim is barred by res judicata.

       We have considered each of the arguments presented by the parties and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019   Page 7 of 9
       conclude that the dispositive argument is that Twitty’s claim is barred by res

       judicata. Thus, the trial court did not err in denying the motion.


[17]   Twitty’s support for his motion to correct erroneous sentence is his claim that

       the consecutive sentences for two of his three attempted murder convictions

       constituted an erroneous sentence under the doctrine of amelioration and his

       citation to the timing of amendments to Indiana Code section 35-50-1-2 and

       case law addressing how to treat attempted murder convictions for purposes of

       consecutive sentencing.


[18]   Twitty unsuccessfully challenged his consecutive sentences on direct appeal and

       transfer was denied by the Supreme Court. Twitty unsuccessfully challenged

       his consecutive sentences in a petition for post-conviction relief. This Court

       affirmed the denial of Twitty’s petition. Further, Twitty challenged his

       consecutive sentences in a motion to correct erroneous sentence.


[19]   “Res judicata, whether in the form of claim preclusion or issue preclusion (also

       called collateral estoppel), aims to prevent repetitious litigation of disputes that

       are essentially the same, by holding a prior final judgment binding against both

       the original parties and their privies.” Becker v. State, 992 N.E.2d 697, 700 (Ind.

       2013). Here, Twitty has raised the same or similar challenges to his consecutive

       sentences, each time resulting in a denial of relief. We conclude that Twitty’s

       argument is barred by res judicata. Thus, the trial court did not err by denying

       Twitty relief.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019   Page 8 of 9
                                                Conclusion
[20]   Because Twitty’s motion to correct erroneous is barred by res judicata, we

       conclude that the trial court did not err by denying Twitty the relief requested.


[21]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019   Page 9 of 9
