MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Mar 09 2015, 9:32 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT                                                ATTORNEYS FOR APPELLEE
John Chupp, Pro Se                                       Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

John Chupp,                                              March 9, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1408-CR-579
        v.                                               Appeal from the Marion Superior
                                                         Court; The Honorable Sheila A.
                                                         Carsile, Judge; The Honorable
State of Indiana,                                        Stanley E. Kroh, Magistrate;
Appellee-Plaintiff.                                      CR 82-81 A




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-579| March 9, 2015       Page 1 of 5
[1]   John Chupp appeals the denial of his Motion to Correct Erroneous Sentence.

      As the trial court did not abuse its discretion, we affirm.


[2]   Affirmed.


                                 Facts and Procedural History
[3]   In 1982, Chupp and two accomplices broke into a woman’s home in Southport,

      robbed her, tied her up, and sexually assaulted her. A jury found Chupp guilty

      of Class A felony burglary, Class A felony robbery, and Class B felony criminal

      confinement. The trial court sentenced him to concurrent sentences of fifty

      years for each Class A felony conviction, and to twenty years for the Class B

      felony to run consecutively to the fifty-year sentences, for an aggregate sentence

      of seventy years. Our Indiana Supreme Court affirmed Chupp’s convictions

      and sentence. Chupp v. State, 509 N.E.2d 835 (Ind. 1987).


[4]   We provided further procedural history in our opinion affirming the denial of

      Chupp’s first Motion to Correct Erroneous Sentence:

              On two separate occasions, Chupp filed a petition for post-conviction
              relief, each of which was withdrawn without prejudice. On April 24,
              2007, Chupp filed a third petition for post-conviction relief, asserting
              newly discovered evidence and claiming that his sentence was
              erroneous because the robbery and burglary convictions were
              enhanced based on the same injuries. The post-conviction court
              denied his petition. On appeal, we denied most of Chupp’s claims but
              concluded that the elevation of both the burglary and robbery count to
              Class A felonies was based on the same injuries and thus violated the
              principles of double jeopardy. See Chupp v. State, 933 N.E.2d 586,*5
              (Ind. Ct. App. 2010) (unpublished opinion). We vacated Chupp’s
              conviction for robbery as a Class A felony and directed the post-
              conviction court to enter judgment on the robbery conviction as a
      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-579| March 9, 2015   Page 2 of 5
               Class C felony and to resentence him accordingly. See id. at *10. On
               January 20, 2011, the trial court modified Chupp’s Class A felony
               robbery conviction to a Class C felony, vacated the fifty year sentence
               and imposed an eight year sentence to run concurrent to the fifty year
               sentence of the Class A felony burglary conviction, and consecutive to
               the twenty year sentence for the Class B felony criminal confinement,
               for an aggregate sentence of seventy years.
               On June 13, 2012, Chupp filed a motion to correct erroneous sentence,
               alleging that his conviction for both robbery, a Class C felony, and
               criminal confinement, a Class B felony, violated the double jeopardy
               doctrine. The trial court denied Chupp’s motion on the same day.
      Chupp v. State, 49A05-1206-CR-328, slip op at 1-2 (Ind. Ct. App. December 20,

      2012), trans. denied. We affirmed the denial of Chupp’s Motion to Correct

      Erroneous Sentence.


[5]   On August 13, 2014, Chupp filed a second Motion to Correct Erroneous

      Sentence, which is the subject of the instant appeal. The trial court denied his

      motion the same day.


                                       Discussion and Decision1
               [A] motion to correct sentence may only be used to correct sentencing
               errors that are clear from the face of the 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 erroneous sentence.
      Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Claims that require

      consideration of the proceedings are best addressed on direct appeal or as part




      1
        We note Chupp appears pro se. Pro se litigants are held to the same standards as licensed attorneys and are
      required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-579| March 9, 2015                 Page 3 of 5
      of a petition for post-conviction relief if applicable. Id. When reviewing a

      decision on a Motion to Correct 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 occurs when the trial court’s decision is against the logic and effect of

      the facts and circumstances before it. Id. The trial court’s legal conclusions are

      reviewed de novo. Id.


[6]   Chupp argues the court violated statutory law when ordering his sentences be

      served consecutively, and the statute he cites is Ind. Code § 35-50-1-2(b). At the

      time Chupp committed his crime, that statute provided:

              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 consecutively,
              regardless of the order in which the crimes are tried and sentences are
              imposed.
[7]   Chupp asserts that statute “called for concurrent sentences for any defendant

      not On [sic] parole or probation or out on bond,” (Br. of Appellant at 5), and

      because he was not on parole, probation, or bond when he committed his

      crime, his Class B felony sentence could not be ordered served consecutive to

      his two concurrent Class A felony sentences. The parties do not dispute that

      Chupp was not on parole, probation, or out on bond when he was sentenced.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-579| March 9, 2015   Page 4 of 5
[8]    However, the version of Ind. Code § 35-50-1-2(a) in effect at the time of

       Chupp’s crime stated: “Except as provided in subsection (b), the court shall

       determine whether terms of imprisonment shall be served concurrently or

       consecutively.” Pursuant to that subsection of the statute, trial courts had

       discretion to order consecutive sentences for those whose sentences were not

       required to be consecutive pursuant to subsection (b). Pearson v. State, 543

       N.E.2d 1141, 1144 (Ind. Ct. App. 1989). As Chupp was not on parole,

       probation, or out on bond, subsection (a) gave the court discretion to order

       consecutive sentences. See id.


[9]    Neither we nor the trial court could review, pursuant to a Motion to Correct

       Erroneous Sentence, whether the trial court had abused its discretion by

       imposing consecutive sentences, as review of such issue would require looking

       outside the face of the judgment to the facts and circumstances underlying the

       court’s sentencing decision. See Robinson, 805 N.E.2d at 787 (appellate court

       can only consider errors on the face of the sentence when reviewing a Motion

       to Correct Erroneous Sentence).


[10]   As Chupp’s argument regarding the court’s authority to order consecutive

       sentences fails, the trial court did not abuse its discretion when it denied

       Chupp’s Motion to Correct Erroneous Sentence. Accordingly, we affirm.


[11]   Affirmed.


       Barnes, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-579| March 9, 2015   Page 5 of 5
