MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                      Sep 14 2017, 8:02 am
regarded as precedent or cited before any
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
Terrance L. Mitchem                                      Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terrance L. Mitchem,                                     September 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1702-CR-415
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D08-9506-CF-260



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017      Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Terrance Mitchem (Mitchem), appeals the trial court’s

      denial of his motion to correct erroneous sentence.


[2]   We affirm.


                                                    ISSUE
[3]   Mitchem raises five issues on appeal, which we consolidate and restate as the

      following single issue: Whether the trial court properly denied his motion to

      correct erroneous sentence.


                      FACTS AND PROCEDURAL HISTORY
[4]   For the recitation of the facts, we rely on our supreme court’s opinion in

      Mitchem’s direct appeal:

              On June 12, 1995, [Mitchem] and two codefendants, Michael
              Greer and Dorian Lee, armed with weapons, entered a home
              occupied by four adults. [Mitchem] raped the two female
              occupants. [Mitchem] then told the four occupants to line up
              against the wall with their backs towards [him], Greer[,] and Lee.
              [Mitchem] then changed his mind and told the occupants to turn
              around to face [him] and to kneel. Greer, Lee, and [Mitchem]
              opened fire on all four occupants. One victim died and the other
              three survived.


      Mitchem v. State, 685 N.E.2d 671, 673 (Ind. 1997). On June 14, 1995, Mitchem

      was charged with murder; burglary, a Class B felony; three Counts of attempted

      murder, Class A felonies; two counts of rape, Class A felonies; and one Count


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      of criminal deviate conduct, a Class A felony. On December 11, 1995, a jury

      acquitted Mitchem of the burglary offense, but convicted him of all other

      charges. On January 11, 1996, the trial court sentenced Mitchem to fifty-five

      years for murder; and concurrent thirty-five years on each of the three Counts of

      attempted murder, two Counts of rape, and one Count of criminal deviate

      conduct. Mitchem’s fifty-five-year murder sentence was to be served

      consecutively with his other sentences, for an aggregate sentence of ninety

      years. On September 5, 1997, our supreme court affirmed Mitchem’s

      conviction and sentence on direct appeal. Id. at 680.


[5]   On January 8, 2001, Mitchem filed a petition for post-conviction relief. Due to

      changes of counsel, recusal of the initial post-conviction judge, and various

      continuances, the post-conviction court did not commence an evidentiary

      hearing on Mitchem’s petition until December 4, 2009. During that time, the

      post-conviction court observed that the chronological case summary had

      included a notation that an amendment to the petition was anticipated, but had

      not been filed. Therefore, the post-conviction court directed Mitchem’s post-

      conviction counsel to clarify the issues as presented in Mitchem’s original pro se

      petition for post-conviction relief. Accordingly, Mitchem’s counsel restated the

      claims as follows: (1) whether trial counsel was ineffective for abandoning an

      issue regarding suppression of a firearm; (2) whether an adequate record was

      made to preserve an error relating to the requirement of specific intent to kill (as

      related to attempted murder offenses); (3) alleged fundamental error in jury

      instructions; (4) whether appellate counsel was ineffective for failing to raise an


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      argument regarding the jury instructions; and (5) whether appellate counsel was

      ineffective for omitting a sentencing argument as to a mitigating circumstance.

      On August 17, 2011, the post-conviction court issued its findings of fact,

      conclusions of law, and order denying Mitchem’s post-conviction relief.

      Mitchem appealed, claiming that he was denied procedural due process because

      the post-conviction court addressed, in its findings of fact, conclusions of law,

      and order, issues presented by his post-conviction counsel at the post-conviction

      hearing, as opposed to issues he had delineated in his original pro-se petition for

      post-conviction relief. This court denied Mitchem’s appeal. See Mitchem, No.

      719A03-1110-PC-497, slip op. at 2. On December 16, 2016, Mitchem filed a pro

      se motion to correct erroneous sentence. On January 24, 2017, the State filed its

      response. On February 9, 2017, the trial court denied Mitchem’s motion.


[6]   Mitchem now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                            I. Standard of Review


[7]   Mitchem appeals the trial court’s denial of his motion to correct erroneous

      sentence. We review a decision on a motion to correct erroneous sentence for

      an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010).

      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. Indiana Code section 35-

      38-1-15 provides:



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              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.


      The purpose of this 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)). As such, 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. Id. at 787.

      Claims that require consideration of proceedings before, during, or after trial

      may not be presented by way of a motion to correct sentence. Id.


[8]   In his pro se appellate brief, Mitchem makes five arguments, two of which the

      State argues are not appropriate for a motion to correct erroneous sentence.

      We agree. For example, Mitchem challenges his murder sentence, claiming

      that it violates Blakely v. Washington, 542 U.S. 296, 301 (2004), which holds that

      “the facts used to support an enhanced sentence, other than the fact of a prior

      conviction, must be found by a jury or admitted by a defendant.” Fulkrod v.

      State, 855 N.E.2d 1064, 1067 (Ind. Ct. App. 2006) (citing Blakely, 542 U.S. at

      301). But “a Blakely claim is not the type of claim which may be brought

      through a motion to correct erroneous sentence” because it would require us to

      “look beyond the face of the judgment to see if imposition of an enhanced

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       sentence was based upon facts determined through constitutionally permissible

       channels.” Fulkrod, 855 N.E.2d at 1067.


[9]    In addition, Mitchem argues that the trial court abused its statutory sentencing

       authority by ordering him to serve his fifty-five-year murder sentence

       consecutive to his concurrent thirty-five-year sentences for his three Class A

       felony attempted murder convictions. Although phrased differently, this is an

       issue that was determined by our supreme court on direct appeal. See. Mitchem,

       685 N.E.2d at 680 (holding that to “impose consecutive sentences, there must

       be at least one aggravator” and in Mitchem’s case there were several

       aggravators present, i.e. “(1) the number of times the victims were shot; (2) the

       victims were asked to helplessly kneel before [Mitchem] and face [Mitchem]

       while he deliberately executed the victims; and (3) the female victims were

       repeatedly raped and forced to perform deviate sexual acts”)


[10]   Looking at the remainder of Mitchem’s three arguments, we find them

       appropriate for a motion to correct erroneous sentence. First, Mitchem claims

       the trial court applied the wrong sentencing statute with regard to his murder

       conviction. Secondly, Mitchem asserts that his thirty-five-year sentences for the

       attempted murder convictions were not within the statutory sentencing range.

       Lastly, Mitchem claims that the Abstract of Judgement shows an omission with

       regards to his additional credit time of 213 days earned prior his sentencing.

       We will address each issue in turn.




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                                         II. Applicable Sentencing Statute

[11]   Mitchem contends that the trial court applied the wrong version of the murder

       sentencing statute (I.C. § 35-50-2-3(a) (1995), P.L. 148-1995 (effective July

       1995)), when it imposed the fifty-five-year sentence for the murder conviction.

       To address this claim, we must discuss in some detail a confusing period in the

       history of Indiana’s murder sentencing statute, Indiana Code section 35-50-2-3.


[12]   As explained by our supreme court in Smith v. State, 675 N.E.2d 693, 695 (Ind.

       1996), the Indiana General Assembly amended the murder sentencing statute

       twice in 1994. The first amendment raised the presumptive sentence for murder

       from forty to fifty years, but reduced the possible enhancement from twenty to

       ten years. Id. See P.L. 164-1994 1 (approved March 11, 1994 and effective July

       1, 1994). In other words, the presumptive sentence was raised, but the

       maximum sentence remained unchanged. See id. at 697. The second

       amendment “allowed for the exclusion of mentally retarded individuals from

       the death or life imprisonment without parole sentencing option of the

       sentencing statute, but did not incorporate the raised presumptive sentence of



       1
           The amendment read:

       SECTION 2. IC 35–50–2–3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1994]: Sec.
       3 (a) A person who commits murder shall be imprisoned for a fixed term of forty (40) fifty (50) years, with
       not more than twenty (20) ten (10) years added for aggravating circumstances or not more than ten (10) years
       subtracted for mitigating circumstances; in addition, the person may be fined not more than ten thousand
       dollars ($10,000).
       (b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder
       was committed may be sentenced to:
       (1) death; or
       (2) life imprisonment without parole; under section 9 of this chapter.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017          Page 7 of 11
the first amendment. Id. at 695. See P.L. 158-1994 (approved March 15, 1994

and effective July 1, 1994). 2 This situation was corrected on May 5, 1995, when

the General Assembly incorporated the higher presumptive sentence from the

first amendment with the other provisions of the second amendment 3. Id. But

for those who committed murder after the amendments became effective but

before the situation was corrected, “there were two different [murder sentencing

statutes] in effect, each with a different presumptive sentence.” Id. The




2
  SECTION 5. IC 35–50–2–3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1994]:
Sec. 3 (a) A person who commits murder shall be imprisoned for a fixed term of forty (40) years, with not
more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted
for mitigating circumstances; in addition, the person may be fined not more than ten thousand dollars
($10,000).
(b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder
was committed may be sentenced to:
(1) death; or
(2) life imprisonment without parole;
under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is a mentally
retarded individual.
3
  As noted, the General Assembly finally corrected the problem on May 5, 1995 when it amended the
Indiana Code to make technical corrections. The amendment read as follows:
SECTION 128. IC 35–50–2–3, AS AMENDED BY P.L. 158–1994, SECTION 5 AND P.L. 164–1994,
SECTION 2, IS CORRECTED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3.(a) A
person who commits murder shall be imprisoned for a fixed term of forty (40) fifty (50) years, with not more
than twenty (20) ten (10) years added for aggravating circumstances or not more than ten (10) years subtracted
for mitigating circumstances; in addition, the person may be fined not more than ten thousand dollars
($10,000).
(b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder
was committed may be sentenced to:
(1) death; or
(2) life imprisonment without parole;
under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is a mentally
retarded individual.
P.L. 2–1995 (approved May 5, 1995).

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017          Page 8 of 11
       question before the court in Smith was which statute to apply to those who

       committed murder when both statutes were in effect.


[13]   The defendant in Smith pleaded guilty to murder, and the parties agreed that the

       defendant would receive a sentence of no more than fifty years executed. Id.

       At the plea hearing, the parties appeared to agree that the fifty-year presumptive

       sentencing statute applied. Id. at 696. At sentencing, however, the defendant

       argued that the forty-year sentencing statute was appropriate. Id. On appeal,

       our supreme court agreed with the defendant, holding that when sentencing for

       murders committed between July 1, 1994 and May 5, 1995, trial courts must

       employ the statute which prescribes a forty-year presumptive sentence and

       allows an enhancement of up to twenty years.


[14]   The long-standing rule that the sentencing statute in effect at the time a crime is

       committed governs the sentence for that crime. Gutermuth v. State, 868 N.E.2d

       427, 431 n. 4 (Ind. 2007). Thus, on June 12, 1995, the day Mitchem committed

       the murder, the presumptive sentence for murder was fifty years with a possible

       enhancement of ten years. See P.L. 164-1994. Mitchem’s argument that P.L.

       158-1994, providing for a forty-year presumptive sentence was the applicable

       statute, lacks merit.


                                              III. Statutory Range

[15]   Next, Mitchem claims that the concurrent thirty-five-year sentences for the

       Class A attempted murder felonies, were not within the statutory sentencing

       range. Specifically, Mitchem argues that he should have been sentenced to a


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       fixed term of twenty-five years on each of his Class A felonies instead of thirty-

       five years. At the time of the instant offenses, the presumptive sentence for a

       Class A felony was twenty-five years, with up to twenty years added for

       aggravating circumstances. See I.C.§ 35-50-2-4 (1994). Thus, Mitchem faced a

       possible sentence of forty-five years on a single Count. Again, we find no merit

       in Mitchem’s claim, and we conclude that the trial court did not abuse its

       discretion by denying his motion to correct erroneous sentence.


                                                IV. Credit Time

[16]   In his last argument, Mitchem claims that his sentence is erroneous because he

       is entitled to receive additional credit time of 213 days spent in pre-trial

       confinement. See I.C. § 35-38-3-2 (requiring the judgment of conviction to

       include “the amount of credit, including credit time earned, for time spent in

       confinement before sentencing”). In support of his claim, Mitchem points us to

       the Abstract of Judgment, indicating the alleged omission.


[17]   In Robinson v. State, 805 N.E.2d 783, 784 (Ind. 2004), the defendant filed a

       motion to correct erroneous sentence asserting that the trial court’s sentence

       improperly failed to award credit for time served and good time credit. The

       supreme court explained that “[i]t is the court’s judgment of conviction and not

       the abstract of judgment that is the official trial court record and which

       thereafter is the controlling document. Therefore, a motion to correct

       erroneous sentence may not be used to seek corrections of claimed errors or

       omissions in an abstract of judgment.” Id. at 794. See also Jackson v State, 806

       N.E.2d 773, 774 (Ind. 2004) (“A motion to correct sentence may not be used to

       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017   Page 10 of 11
       challenge entries or omissions in an abstract of judgment”); Laycock v. State, 805

       N.E.2d 796, 798 (Ind. 2004) (“Entries in the abstract of judgment may not be

       challenged by a motion to correct sentence.”).


[18]   Mitchem cites to the Abstract of Judgement showing that he only received 213

       days of earned credit time. Mitchem claims that there was an omission in the

       abstract of judgment since it failed to include his additional 213 days of credit

       time earned during pre-sentence confinement. We recognize that Mitchem’s

       challenge is to the abstract of judgment and not the sentencing judgment. As

       the court held in Robinson, “a motion to correct sentence may not be used to

       seek corrections of claimed errors or omissions in an abstract of judgment.”

       Robinson, 805 N.E.2d at 794. Accordingly, the trial court did not err in denying

       his motion.


                                             CONCLUSION
[19]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in denying Mitchem’s motion to correct erroneous sentence.


[20]   Affirmed.


[21]   Robb, J. and Pyle, J. concur




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