MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 28 2019, 10:33 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John (Jack) F. Crawford                                  Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Orlando Antonio Feliz, III,                              June 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-14
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Mark A. Smith,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D04-1508-F3-17



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019                   Page 1 of 11
                                        Statement of the Case
[1]   Orlando Feliz, III (“Feliz”) appeals the trial court’s order granting the State’s

      motion to correct erroneous sentence. Concluding that the trial court did not

      abuse its discretion by granting the motion to correct erroneous sentence, we

      affirm the trial court’s judgment.


[2]   We affirm.


                                                      Issue
                Whether the trial court abused its discretion by granting the State’s
                motion to correct Feliz’s erroneous sentence.

                                                     Facts
[3]   In August 2015, the State charged Feliz with Count 1, Level 3 felony robbery;

      Count 2, Level 3 felony conspiracy to commit robbery; Count 3, Level 3 felony

      criminal confinement; and Count 4, Level 5 felony intimidation. In May 2016,

      Feliz entered into a written plea agreement and pled guilty to the Class 3 felony

      robbery charge. At that time, Feliz had five pending causes. In exchange for

      Feliz’s plea in this cause, the State agreed to dismiss the remaining three

      charges and two separate causes.1 The plea agreement provided that Feliz

      would be sentenced to 3,290 days (or the advisory sentence of nine (9) years),

      with 2,190 days (or six (6) years) to be served on work release and 1,100 days

      (or three (3) years) suspended to probation. Feliz’s plea agreement also




      1
          The two causes that were dismissed were 32D04-1509-F3-21 and 32D04-1512-CM-1537.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019            Page 2 of 11
      contained the following provision: “DEFENDANT AGREES TO SERVE

      THE ENTIRE SUSPENDED SENTENCE AT THE INDIANA

      DEPARTMENT OF CORRECTIONS IF FOUND TO HAVE VIOLATED

      ANY TERM OF WORK RELEASE OR PROBATION.” (App. Vol. 2 at

      107) (emphasis and capitalization in original).2 The trial court accepted Feliz’s

      guilty plea to the Level 3 felony robbery charge and imposed the 3,290-day

      sentence as set out in the plea agreement. After applying Feliz’s applicable

      credit time, the trial court ordered him to serve 1,942 days on work release and

      the 1,100 suspended days on probation. The trial court also ordered that Feliz’s

      sentence was to be served consecutively to two other causes.3


[4]   The following month, on June 20, 2016, the State filed a notice of violation of

      work release (“June 2016 Work Release Violation Notice”), alleging that Feliz

      had failed to return to work release after being given a temporary home pass on

      June 19, 2016. The State then issued a warrant for Feliz’s arrest and charged




      2
        Additionally, the plea agreement contained a provision that Feliz was waiving his right to challenge his
      sentence, including any arguments that the sentence was erroneous, that the trial court had erred in finding
      and balancing mitigating and aggravating factors, or that the sentence was inappropriate under Indiana
      Appellate Rule 7(B). During the pendency of this appeal, the State filed a motion to dismiss Feliz’s appeal,
      contending that this plea agreement provision prohibited him from filing this appeal. Our motions panel
      denied the State’s motion. In its appellate brief, the State raises this same dismissal argument. We, however,
      decline to disturb the ruling of the motions panel. Here, Feliz is challenging the order granting the State’s
      motion to correct erroneous sentence; he is not raising one of the prohibited challenges set forth in his plea
      agreement.
      3
       The two causes were 32D04-1512-F6-954 (“F6-954”), in which Feliz pled guilty to Level 6 felony
      possession of a narcotic drug, and 32D04-1512-CM-1485 (“CM-1485”), in which Feliz pled guilty to Class A
      misdemeanor invasion of privacy.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019                       Page 3 of 11
      him with Level 6 felony failure to return to lawful detention under cause

      32D04-1606-F6-564 (“F6-564”).


[5]   The State also filed two separate notices of probation violations. In the June

      23, 2016 notice (“June 2016 Probation Violation Notice”), the State alleged that

      Feliz had violated the law by committing Level 6 felony failure to return to

      lawful detention as charged in F6-564. In the July 18, 2016 notice (“July 2016

      Probation Violation Notice”), the State alleged that Feliz had: (1) violated the

      law by committing two counts of Class A misdemeanor resisting law

      enforcement and Class A misdemeanor possession of marijuana, which resulted

      in the filing of a new cause in Marion County; and (2) possessed a controlled

      substance.4


[6]   On November 14, 2016, the trial court held a hearing (“November 2016

      Violation Hearing”). Feliz was represented by attorney John Fierek. The

      parties informed the trial court that they had reached an agreement. This

      agreement was not in writing. The parties indicated that the agreement

      included an admission to the probation violations with the imposition of the

      1,100-day suspended sentence minus applicable credit time; an admission to the

      work release violation with “the balance of his time . . . to be served [in]

      DOC[;]” and a guilty plea to the pending Level 6 felony failure to return to

      lawful detention in cause F6-564 and the imposition of a 180-day sentence. (Tr.




      4
       At the same time that the State filed the July 2016 Probation Violation Notice, it also filed probation
      violation notices, based on the same allegations, in causes F6-954 and CM-1485.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019                        Page 4 of 11
      Vol. 2 at 40).5 Feliz admitted to the probation violations as alleged in the two

      probation violation notices, and the trial court revoked Feliz’s probation and

      ordered him to serve the previously suspended 1,100 days in the Indiana

      Department of Correction.6 Feliz also pled guilty to the pending Level 6 felony

      failure to return to lawful detention in F6-564, and the trial court imposed the

      minimum 180-day sentence per the parties’ agreement. There was no further

      discussion of Feliz’s work release violation. Both the trial court’s order

      (“November 2016 Violation Order”) and the abstract of judgment indicate that

      the 1,100-day sentence was only for Feliz’s probation violations. The trial court

      did not specifically address the work release violation.


[7]   A few months later, on May 11, 2017, the State filed a motion to correct

      erroneous sentence pursuant to INDIANA CODE § 35-38-1-15. In this motion,

      the State asserted, in relevant part, as follows:


               5. On November 1[4], 2016[,] a hearing was conducted on the
               work release violation, the probation violation[,] and the new
               charge of Fail[ure] to Return to Lawful Detention (F6-564) were
               held on the above referenced cases. The agreement called for
               [Feliz] to admit to the violations and serve the balance of his
               suspended time, 1100 days, under this cause (F3-17) AND the
               remainder of his original 1,942 day work release sentence at the
               IDOC. The agreement also called for [Feliz] to admit to the new



      5
        The hearing also covered the probation violations filed in causes F6-954 and CM-1485. The parties agreed
      that Feliz would admit to the probation violations filed in these two causes and would receive a ninety-day
      sentence in each cause with time served.
      6
       The trial court also ordered that Feliz’s sentence was to be served consecutively to causes F6-564, F6-954,
      and CM-1485.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019                       Page 5 of 11
              offense and to do the minimum sentence of 180 days on the
              Failure to Return to Lawful Detention.

              6. [Feliz], under the original plea agreement, was to serve 1,942
              days executed to work release of which he only completed
              approximately 30 days before absconding. The court entered a
              sentence of only 1100 days. The State is requesting the court
              issue an[] amended sentencing order and abstract of judgment
              reflecting [Feliz’s] sentence should have included [his] unserved
              work release sentence of 1,942 days PLUS the 1,100 days of his
              suspended [probation] sentence.

      (App. Vol. 2 at 148).


[8]   On June 13, 2017, the trial court held a hearing on the State’s motion to correct

      erroneous sentence (“June 2017 Erroneous Sentence Hearing”). Feliz, who

      was incarcerated in the Putnamville Correctional Facility, appeared for the

      hearing via a video link and was represented by Annie Fierek “on behalf of Jim

      Fierek.” (App. Vol. 2 at 18). During the hearing, the State informed the trial

      court that its November 2016 Violation Order was “inconsistent” with the

      agreement that the parties had previously reached for Feliz to serve 1,942 days

      for his work release violation and 1,100 days for his probation violation at the

      Indiana Department of Correction and for Feliz to receive the minimum 180-

      day sentence for his failure to return to lawful detention conviction in cause F6-

      564. (Tr. Vol. 2 at 52). The State requested the trial court to enter an amended

      order to include the work release violation or, alternatively, to set the matter for

      a work release hearing. Feliz’s counsel “agree[d]” that the trial court “should

      correct the record and add in the time that [Feliz] [wa]s supposed to do at work



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019   Page 6 of 11
       release, the nineteen forty-two (1942) [days].” (Tr. Vol. at 55).7 The trial court

       granted the State’s motion to correct erroneous sentence and entered an

       amended order (“June 2017 Erroneous Sentence Order”) and abstract of

       judgment, which both indicated that the 3,042-day sentence was for Feliz’s

       probation violations (1,100 days) and work release violation (1,942 days).


[9]    Feliz then filed a motion to correct error, which was filed by his new attorney,

       Jack Crawford. Feliz argued, in part, that the June 2017 Erroneous Sentence

       Hearing did not procedurally comply with the requirements of INDIANA CODE

       § 35-38-1-15.


[10]   On November 20, 2017, the trial court held a hearing on Feliz’s motion to

       correct error. Feliz suggested that the trial court should not impose any

       additional time for his work release violation, contending that: (1) the State

       could not file a motion to correct erroneous sentence under INDIANA CODE §

       35-38-1-15 because the sentence in the November 2016 Violation Order was not

       erroneous on its face; and (2) the November 2016 Violation Hearing had

       addressed the work release violation and the parties had agreed that Feliz

       would serve only 1,100 days for both his probation and work release violations.


[11]   The State pointed out that our supreme court, in Hardley v. State, 905 N.E.2d

       399 (Ind. 2009), had explained that the State can file a motion to correct




       7
         During the hearing, the trial court noted, and both counsels agreed, that the court needed to correct a
       clerical error in the abstract of judgment to correctly reflect that Feliz had pled guilty to a Level 3 felony, not
       a Level 5 felony.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019                            Page 7 of 11
       erroneous sentence under INDIANA CODE § 35-38-1-15 and that the State was

       not limited by the facially erroneous requirement set forth in Robinson v. State,

       805 N.E.2d 783 (Ind. 2004). The State disagreed about the nature of the

       parties’ agreement in the November 2016 Violation Hearing and pointed out

       that the trial court’s November 2016 Violation Order addressed only the

       probation violation and did not rule upon the work release violation. The State

       argued that the trial court should impose 1,942 days for Feliz’s work release

       violation.


[12]   The trial court agreed with the State, and it specifically noted in its order that it

       had failed to address and resolve the work release violation when it held the

       November 2016 Violation Hearing. The trial court granted, in part, Feliz’s

       motion to correct error and vacated the part of its June 2017 Erroneous

       Sentence Order that imposed a 1,942-day sentence for the work release

       violation. The trial court scheduled a hearing on the allegation contained in

       June 2016 Work Release Violation and also ruled that its revocation of Feliz’s

       probation and order that he serve the 1,100 days for his probation violation

       remained in effect.


[13]   On December 11, 2017, the trial court held a hearing on the work release

       violation. Feliz objected to the hearing based on the same arguments he had

       raised in the previous motion to correct error hearing. The trial court again

       rejected his arguments, took judicial notice of Feliz’s previous guilty plea to the

       Level 6 felony failure to return to lawful detention in cause F6-564, and ordered

       Feliz to serve the 1,942 days from the work release portion of his sentence.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019   Page 8 of 11
       When the trial court entered the abstract of judgment, it noted that Feliz was

       “sentenced to 1100 days on the Probation Violation and 1942 days on the Work

       Release Violation, for a total sentence of 3,042 days.” (App. Vol. 2 at 24).

       Feliz now appeals.


                                                      Decision
[14]   Feliz appeals the trial court’s grant of the State’s motion to correct erroneous

       sentence. His challenge to the trial court’s order that he serve 1,942 days for his

       work release violation is based on his procedural challenge regarding the State’s

       ability to file a motion to correct erroneous sentence under INDIANA CODE §

       35-38-1-15. Specifically, Feliz contends such a statutory motion can be filed

       only when the challenged sentence is erroneous on its face. 8


[15]   We review a trial court’s ruling on a motion to correct erroneous sentence for

       an abuse of discretion, which occurs when the trial court’s decision is against

       the logic and effect of the facts and circumstances before it. Davis v. State, 978

       N.E.2d 470, 472 (Ind. Ct. App. 2012). INDIANA CODE § 35-38-1-15 provides:




       8
         Feliz also challenges the nature of the November 2016 Violation Hearing and the nature of the parties’
       agreement during the hearing. As he did below, he contends that the hearing addressed his work release
       violation and that the parties had agreed that Feliz would serve only 1,100 days for both his probation and
       work release violations. The trial court rejected this argument below, determined that it had not addressed or
       ruled upon the work release violation during the November 2016 Violation Hearing, held a hearing on the
       work release violation, and ordered Feliz to serve 1,942 days for his work release violation. Feliz’s argument
       is nothing more than an invitation to reweigh the trial court’s factual determination, which we will not do.
       Moreover, Feliz acknowledges that the trial court had authority, upon determining that he had violated a
       condition of his work release by absconding, to order him to serve the work release portion of his sentence in
       the Indiana Department of Correction.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019                       Page 9 of 11
               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 the statute ‘is to provide prompt, direct access to an

       uncomplicated legal process for correcting the occasional erroneous or illegal

       sentence.’” Robinson, 805 N.E.2d at 785 (quoting Gaddie v. State, 566 N.E.2d

       535, 537 (Ind. 1991)).


[16]   A motion to correct erroneous sentence under INDIANA CODE § 35-38-1-15 can

       be used by an inmate or by the State. See Hardley, 905 N.E.2d at 402; Neff v.

       State, 888 N.E.2d 1249, 1250-51 (Ind. 2008). When filed by an inmate, a

       statutory 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.

       “Such claims may be resolved by considering only the face of the judgment and

       the applicable statutory authority without reference to other matters in or

       extrinsic to the record.” Fulkrod v. State, 855 N.E.2d 1064, 1066 (Ind. Ct. App.

       2006). Our supreme court, however, has “decline[d] to extend Robinson’s

       ‘facially erroneous’ requirement to restrict efforts by the State to challenge an

       illegal sentence.” Hardley, 905 N.E.2d at 402. The Hardley Court explained

       that the State has “constrained access to direct appeal and post-conviction



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019   Page 10 of 11
       remedies” and refused to limit the State’s use of a motion to correct erroneous

       sentence to only facially erroneous sentencing judgments. Id.


[17]   Here, the State filed a motion to correct erroneous sentence when it realized

       that the trial court’s November 2016 Violation Order had failed to address and

       enter a judgment on Feliz’s work release violation, which was based on the

       allegation that he had failed to return to lawful detention and resulted in him

       being charged with a Level 6 felony in cause F6-564. The trial court ultimately

       held a hearing to address the work release violation, took judicial notice of

       Feliz’s previous guilty plea to the Level 6 felony failure to return to lawful

       detention in cause F6-564, and ordered Feliz to serve the 1,942 days from the

       work release portion of his sentence. We conclude that there was no abuse of

       discretion in the trial court’s judgment or grant of the State’s motion to correct

       erroneous sentence. See I.C. § 35-38-2.6-5 (providing that if a defendant violates

       the terms of his placement, the trial court may change the terms of the

       placement, continue the placement, or revoke the placement and commit the

       person to DOC for the remainder of the person’s sentence).


[18]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-14 | June 28, 2019   Page 11 of 11
