Philip Gregory Yeary v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
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 PRO-SE: ATTORNEYS FOR APPELLEE:
PHILIP GREGORY YEARY GREGORY F. ZOELLER
Greencastle, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
FILED
Feb 22 2012, 9:16 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
PHILIP GREGORY YEARY, )
)
Appellant-Defendant, )
)
vs. ) No. 78A01-1108-CR-388
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SWITZERLAND CIRCUIT COURT
The Honorable Fred H. Hoying, Special Judge
Cause No. 78C01-0902-FB-613
February 22, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Philip Yeary appeals the trial court’s denial of his motion to
correct erroneous sentence. Yeary essentially argues the trial court abused its discretion
when it denied his motion to correct erroneous sentence. Concluding that Yeary may not
challenge his sentence through a motion to correct erroneous sentence, we affirm the
judgment of the trial court.
FACTS
Following a jury trial, Yeary was found guilty of nine separate criminal acts,
including criminal confinement, intimidation, pointing a firearm, illegal possession of a
handgun, and criminal recklessness. At the sentencing hearing, the trial court identified
the fact that the offenses were committed in front of children who were under the age of
eighteen years old as an aggravating factor. It also identified Yeary’s lack of a criminal
history and the hardship that imprisonment would cause his children as mitigating
circumstances but determined that those mitigating factors did not warrant a reduced
sentence. Concluding that four of the counts arose from the same episode of criminal
conduct, the trial court merged those counts into a single count of criminal confinement,
as a class B felony, and sentenced Yeary to ten years. Similarly, the trial court found the
five remaining counts were for another episode of criminal conduct, and it merged those
counts into a single count of criminal confinement as a class B felony, and entered a ten-
year sentence for that offense. The trial court ordered that Yeary’s sentences be served
consecutively, for a total of twenty years.
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On direct appeal, Yeary argued that his sentence was inappropriate in light of his
character and the nature of his offense. Yeary v. State, Cause No. 78A01-0706-CR-
00282 slip op. 23-24 (Ind. Ct. App. March 11, 2008), trans. denied. A panel of this court
found that his sentence was not inappropriate and affirmed. Id.
On July 8, 2011, Yeary filed a motion to correct erroneous sentence alleging that
the sole aggravating circumstance found by the trial court was invalid as a matter of law.
On August 3, 2011, the trial court denied the motion, concluding that a panel of this court
had already decided on direct appeal the issue raised in the motion to correct error.
Yeary now appeals.
DECISION AND DISCUSSION
Yeary argues that the trial court abused its discretion when it denied his motion to
correct erroneous. Specifically, he argues that the trial court considered an inappropriate
factor and should have ordered a lesser sentence.
An inmate may only file a motion to correct erroneous sentence to address a
sentence that is illegal and thus “erroneous on its face.” Robinson v. State. 805 N.E.2d
783, 786 (Ind. 2004)). As for sentencing claims that are not facially apparent, the motion
to correct sentence is an improper remedy. Id. at 787. Thus, Yeary may not challenge
his sentence through a motion to correct erroneous sentence. Moreover, the
appropriateness of Yeary’s sentence was already addressed on direct appeal. Slip op. at
23-24. Thus, Yeary’s motion is barred under the doctrine of res judicata. See Holt v.
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State, 656 N.E.2d 495, 496 (Ind. Ct. App. 1995) (holding that “issues which have been
raised and adjudicated on direct appeal are res judicata”).
The judgment of the trial court is affirmed.
DARDEN, J., and BAILEY, J., concur.
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