MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           May 31 2016, 8:25 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeffrey W. Elftman                                      Gregory F. Zoeller
Bolinger Law Firm                                       Attorney General of Indiana
Kokomo, Indiana
                                                        Karl Scharnberg
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandy G. Hoebee,                                       May 31, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A04-1511-CR-1951
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable George A.
Appellee-Plaintiff.                                     Hopkins, Judge
                                                        Trial Court Cause Nos.
                                                        34D04-1109-FC-151
                                                        34D04-1305-FD-69
                                                        34D04-1306-FD-104
                                                        34D04-1309-FB-156



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016      Page 1 of 13
[1]   Brandy G. Hoebee appeals the trial court’s order denying her motion to correct

      credit time. Hoebee raises three issues which we consolidate and restate as

      whether the trial court abused its discretion in denying her motion. We affirm

      in part, reverse in part, and remand.


                                      Facts and Procedural History

[2]   On February 10, 2012, the trial court entered judgment of conviction under

      cause number 34D04-1109-FC-151 (“Cause No. 151”) for two counts of forgery

      as class C felonies and sentenced Hoebee on each count to concurrent sentences

      of six years with two years executed on in-home detention, the balance

      suspended to supervised probation, and credit for 150 actual days served

      awaiting disposition.


[3]   On July 19, 2013, the State filed a petition to revoke suspended sentence under

      Cause No. 151 and alleged that Hoebee failed to report to the probation

      department and failed to timely inform her probation officer of the charges filed

      in cause number 34D04-1305-FD-69 (“Cause No. 69”) and cause number

      34D04-1306-FD-104 (“Cause No. 104”). On March 14, 2014, the court entered

      a sentencing order on the State’s petition to revoke probation under Cause No.

      151 and found that Hoebee violated the terms of probation. Specifically, the

      order states:


              Defendant’s suspended sentence in the amount of 1,462 days is
              revoked and ordered served in the Howard County Criminal
              Justice Center. Defendant is given credit for time on in-home
              [detention] from 10/2/2012 to 10/17/12 for a total of (15) days.
              (no credit for day credit is given for this time) Defendant is
      Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 2 of 13
              further given credit for time served in jail from 10/18/2012 to
              11/15/2012 for a total of (29) days and further given credit from
              7/24/13 to 3/13/14 for a total of (233) days for a grand total of
              jail credit of 262 actual days (day for day credit given).
              Defendant is further given credit for 176 days served on
              probation.


      Appellant’s Appendix at 40.


[4]   On October 10, 2014, the court entered a sentencing order under Cause Nos.

      69, 104, and 34D04-1309-FB-156 (“Cause No. 156”). Specifically, the court

      sentenced Hoebee to two years with one year executed and 365 days suspended

      to supervised probation for theft as a class D felony under Cause No. 69, to two

      years with one year executed and 365 days suspended to supervised probation

      for theft as a class D felony under Cause No. 104, and to three years executed

      for possession of a narcotic drug as a class D felony under Cause No. 156. The

      court gave Hoebee credit for time served in Cause No. 104 in the amount of 475

      actual days or 950 days with day for day credit, and ordered that all three

      causes run consecutive to each other.


[5]   On December 2, 2014, the court entered an amended sentencing order which

      listed Cause No. 104 in the caption, stating:


              Court finds that at the time of this sentencing, the Defendant was
              serving a sentence and given jail credit in Cause No. [151].
              Therefore, the jail credit in this cause should be amended to read
              the Defendant is given credit for time served only from June 23,
              2013 to July 24, 2013 in the amount of Thirty Two (32) actual
              days or Sixty Four (64) days with day for day credit.


      Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 3 of 13
              Further the sentences in Cause [Nos. 69, 104, and 156] should
              run consecutive to each other as well as consecutive to [Cause
              No. 151].


      Id. at 94.


[6]   On July 30, 2015, Hoebee filed a motion to correct credit time under Cause No.

      151 and Cause No. 104. She requested that the court issue an amended abstract

      of judgment under Cause No. 151 and “amend Part III, line 3 to read:

      Incarceration, 7/24/2013, 10/10/2014, 444, 888.” Id. at 43, 97.


[7]   On September 25, 2015, the court held a hearing, and Hoebee’s counsel stated:

              Ms. Hoebee was serving a sentence that was pending sentencing
              under two cause numbers. At one point the defendant was
              sentenced, the credit time was applied, an error was made in that
              Ms. Hoebee received credit time under a probation violation and
              a new case, in violation of the statute. The court, some months
              later, I believe in October of ’14, caught the issue and corrected
              it. However, when the court submitted the updated abstract, the
              Amended Abstract of Judgment correcting the issue, it included
              the date to report to incarceration as the date of the correction
              and not the date of the original sentence, which caused the
              Department of Correction to deprive Ms. Hoebee, if I can reflect
              here in my motion, 211 days of credit time was excised because
              the correction did not reflect the original sentencing date in
              March and instead contained the October date. So by the
              correction in that missed date, the DOC calculated the credit
              time and removed credit on both causes from March 14th, 2014
              to October 14th, 2014, giving neither credit towards the
              probation violation nor the felony charge for which she was
              sentenced to the Department of Corrections. The error can be
              corrected, Your Honor, by an Amended Abstract of Judgment


      Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 4 of 13
              under [Cause No. 104], correcting report date to incarceration
              not 12/2 of 2014, but March 14th of –


      Transcript of September 25, 2015 Hearing at 5-6. The trial court asked what

      correction he was requesting, and Hoebee’s counsel stated:

              There are two possible options. One would be to change Part 4
              of the abstract to read the report date for incarceration of not
              12/2 of ‘14 but to read 3/14 of ‘14. . . [o]r, to change Part 3, to
              incarceration credit dates of confinement prior to sentencing to
              not 32 actual days –


      Id. at 6-7. The trial court asked “Change Part 3 to?” Id. at 7. Hoebee’s counsel

      replied: “Removing the 32 actual days and making that 243 actual days, thereby

      crediting the defendant for the 211 days that were missed.” Id. at 7. On

      October 29, 2015, the court denied Hoebee’s motion.


                                                  Discussion

[8]   Hoebee appears to argue that she was confined on all four cause numbers for a

      considerable amount of overlapping time and that the court erred in failing to

      award her credit time under each cause number. She concedes that her plea

      called for consecutive sentences, but asserts that there was no statutory

      requirement that such sentences be consecutive and that she should be entitled

      to a full credit for her presentence confinement. In other words, she asserts that

      she is entitled to credit time under each cause number “due to the fact that the

      above cases are not mandatorily consecutive.” Appellant’s Brief at 11.




      Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 5 of 13
[9]    She argues that “when reviewing the final Abstracts of Judgment, it appears the

       time [she] spent incarcerated at the Howard County Criminal Justice Center

       from March 13th, 2013 until October 10th, 2013 was not applied to any of the

       four cause numbers.”1 Id. She also asserts that she was placed on home

       detention until her arrest on October 17, 2012, for non-compliance and that

       “[a]ccording to records of the home detention office [she] was scheduled for

       release from home detention on October 6th, 2012.” Id. at 13. She states that

       she satisfied her original home detention sentence on October 6, 2012, but

       remained on home detention until her arrest on October 17, 2012, and that she

       is entitled “to good time credit applied to her sentence for this additional time

       spent deprived of liberty.” Id.


[10]   She argues that her plea agreement and the February 10, 2012 order called for a

       suspended sentence of four years, but the March 14, 2014 order revoking her

       probation and her suspended sentence in the amount of 1,462 days was two

       days greater than four years. The State concedes that Hoebee is correct that the

       court’s calculation was erroneous, and asserts that the court should have

       imposed “1,461 days (365 days x 4 + 1 day for the leap year).” Appellee’s Brief

       at 13. However, the State says this issue is moot because Hoebee has already




       1
        Hoebee references the same months from 2014 in the next sentence in her brief. Specifically, she states that
       “credit for time spent incarcerated for the two hundred eleven (211) days between sentencing under [Cause
       No. 151] in March of 2014, and the final sentencing resolving the remaining issues in October of 2014, must
       be applied to at least one of her sentences.” Appellant’s Brief at 12.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016              Page 6 of 13
       completed her sentence. In her reply brief, Hoebee asserts that the issue is not

       moot and cites to an amended abstract of judgment.


[11]   Initially, we note that Hoebee’s motion to correct credit time is tantamount to a

       motion to correct erroneous sentence.2 Generally, we review a trial court’s

       decision on a motion to correct erroneous sentence only 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.


[12]   An inmate who believes she has been erroneously sentenced may file a motion

       to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888

       N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 35-38-1-15 provides:

               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.


[13]   In Robinson v. State, the Indiana Supreme Court noted that a motion to correct

       erroneous sentence is available only when the sentence is “erroneous on its

       face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court




       2
        Indeed, Hoebee’s brief mentions a “motion to correct erroneous sentence” in her standard of review.
       Appellant’s Brief at 9.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016            Page 7 of 13
       emphasized that “a motion to correct an erroneous sentence may only arise out

       of information contained on the formal judgment of conviction . . . .” Neff, 888

       N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A motion to correct

       erroneous 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. Robinson, 805 N.E.2d 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. Id. Sentencing claims that are not

       facially apparent “may be raised only on direct appeal and, where appropriate,

       by post-conviction proceedings.” Id. “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 should . . . be

       strictly applied . . . .” Id. The Court also held that the “sentence” that is subject

       to correction under Ind. Code § 35-38-1-15 “means the trial court’s judgment of

       conviction imposing the sentence and not the trial court’s entries on the

       Department of Correction’s abstract of judgment form.” Id. at 794.


[14]   With respect to Hoebee’s arguments which rely upon the home detention

       records, her plea agreement, and parts of the record other than the judgments of

       conviction, resolution of these issues would require consideration of factors

       outside of the face of the judgments. To address these claims would require a

       consideration of proceedings before, during, or after her sentencing. Thus,

       these arguments are not properly presented by way of a motion to correct

       erroneous sentence. We cannot say that the trial court abused its discretion by


       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 8 of 13
       denying her motion on this basis. See Jackson v. State, 806 N.E.2d 773, 774 (Ind.

       2004) (holding that the trial court properly denied the defendant’s motion to

       correct erroneous sentence and noting that a motion to correct erroneous

       sentence is available only to correct sentencing errors clear from the face of the

       judgment).


[15]   To the extent Hoebee requested that the court issue an amended abstract of

       judgment and cites to the abstracts of judgment on appeal, we observe that a

       motion to correct erroneous sentence is not the proper vehicle. See Robinson,

       805 N.E.2d at 794 (holding that the “sentence” that is subject to correction

       under Ind. Code § 35-38-1-15 “means the trial court’s judgment of conviction

       imposing the sentence and not the trial court’s entries on the Department of

       Correction’s abstract of judgment form,” that “a motion to correct sentence

       may not be used to seek corrections of claimed errors or omissions in an

       abstract of judgment,” and that “[b]ecause the defendant is seeking correction

       of the abstract of judgment in his case, there is no error in denying the

       defendant’s motion to correct sentence”).3




       3
         In Neff, the Indiana Supreme Court observed that it “emphasized in Robinson that a motion to correct an
       erroneous sentence may only arise out of information contained on the formal judgment of conviction, and
       not from an abstract of judgment.” Neff, 888 N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). The
       Court then held that “when a defendant files a motion to correct an erroneous sentence in a county that does
       not issue judgments of conviction (we are currently aware only of Marion County), the trial court’s abstract
       of judgment will serve as an appropriate substitute for purposes of making the claim.” Id. We note that the
       trial court in Howard County entered judgments of conviction in this case.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016             Page 9 of 13
[16]   We will address Hoebee’s arguments to the extent they are based on the face of

       the judgments. With respect to her argument that the court ordered that she

       serve two extra days, we note that the February 10, 2012 sentencing order in

       Cause No. 151 sentenced her in part to four years suspended to probation, and

       the March 14, 2014 sentencing order on the State’s petition to revoke probation

       under Cause No. 151 stated that Hoebee’s “suspended sentence in the amount

       of 1,462 days is revoked and ordered served in the Howard County Criminal

       Justice Center.” Appellant’s Appendix at 40. Four years consists of 1,460 days

       and 2016 is a leap year. As the State concedes, the trial court should have

       sentenced Hoebee to 1,461 days. Based upon the record, we cannot determine

       whether Hoebee has completed her sentence and decline to dismiss this

       argument as moot. Accordingly, we remand to the trial court to enter a revised

       judgment of conviction ordering that Hoebee serve her suspended sentence of

       1,461 days.


[17]   To the extent the faces of the judgments indicate that the court did not award

       Hoebee credit for time served under Cause No. 151 in the other cause numbers

       as well, we cannot say that reversal is required on this basis. We find Lanham v.

       State, 540 N.E.2d 612 (Ind. Ct. App. 1989), trans. denied, instructive. In that

       case, Donny Lanham was convicted of child molesting and criminal

       confinement. 540 N.E.2d at 612-613. The court sentenced him to ten years for

       child molesting with no credit time to be served consecutive to five years for

       confinement. Id. at 613. The court applied 379 days of credit time against the

       five-year sentence for confinement, corresponding to Lanham’s pre-trial time in


       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 10 of 13
jail. Id. On appeal, Lanham argued that the court failed to give him 379 days

credit on both counts for which he was sentenced. Id. We rejected Lanham’s

argument that credit time is applied against the aggregate sentence only where

the sentences are mandatorily consecutive. Id. at 613-614. Specifically, we

held:

        Lanham confines his argument to the trial court’s failure to give
        him 379 days credit on both counts for which he was sentenced.
        This precise issue was squarely decided in Simms v. State (1981),
        Ind. App., 421 N.E.2d 698. That holding is adverse to Lanham’s
        position. Simms also had received consecutive sentences, but
        was awarded credit time under only the first sentence. The court
        held that where a defendant is confined during the same time
        period for multiple offenses for which he is convicted and
        sentenced to consecutive terms, credit time is applied against the
        aggregate sentence, not against each individual sentence. Simms,
        id. The court observed that if credit were given against each
        sentence, defendant would receive a “double” credit, which
        would result in a defendant who posted bail serving more total
        time than the defendant who had not posted bail. Id. at 702.


        Lanham attempts to distinguish Simms, asserting that Simms’
        sentence was mandatorily consecutive, unlike his sentence,
        which the trial court had ordered to run consecutive in its
        discretion, utilizing statutory guidelines. Lanham reasons that a
        defendant charged with two offenses for which the court would
        be required to make consecutive upon conviction would be
        apprised in advance that he would only receive credit against the
        aggregate of those sentence. He also argues that a court ordering
        consecutive sentences in its discretion is retroactively removing
        credit time on two offenses already earned. We find little merit
        in Lanham’s argument; the issue is not whether defendant may
        or may not anticipate receiving consecutive sentences, but
        whether defendant may be assured how his credit time will be
Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 11 of 13
               applied for any given outcome. Our cases remove any doubt
               with respect to how credit time will be applied. Lanham should
               not have expected to receive[] “double” credit; therefore, no
               credit time was “retroactively removed.” The trial court has not
               abused its discretion in sentencing Lanham.


       Id.


[18]   To the extent Hoebee argues that credit time was required to be applied to all

       four of her sentences on the basis that the sentences were not statutorily

       required to be served consecutively, we cannot say that reversal is warranted.

       See Lanham, 540 N.E.2d at 613-614; see also Shane v. State, 716 N.E.2d 391, 399-

       400 (Ind. 1999) (rejecting the defendant’s argument that his sentence was

       incorrectly calculated when the trial court failed to reduce each of his sentences

       by the 775 days he spent in prison prior to conviction, observing that he was

       sentenced in part to sixty years with four years suspended for murder and eight

       years for feticide consecutive to his murder charge, holding that “[w]here a

       defendant is convicted of multiple offenses and sentenced to consecutive terms,

       the jail credit is applied against the aggregate sentence,” and also holding that

       the trial court properly applied the jail credit against the aggregate sentence)

       (citing Lanham, 540 N.E.2d at 613).


                                                   Conclusion

[19]   For the foregoing reasons, we reverse the denial of Hoebee’s motion to correct

       credit time with respect to the court’s March 14, 2014 order that Hoebee serve

       1,462 days instead of 1,461 days, remand for the entry of a corrected judgment

       of conviction, and affirm the denial in all other respects.
       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 12 of 13
[20]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016   Page 13 of 13
