Jesse Baker v. State of Indiana ( 2012 )


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  • 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
    FILED
    Jan 09 2012, 8:21 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the                              CLERK
    of the supreme court,
    case.                                                             court of appeals and
    tax court
    APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:
    JESSE BAKER                                      GREGORY F. ZOELLER
    Pendleton, Indiana                               Attorney General of Indiana
    NICOLE M. SCHUSTER
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    JESSE BAKER,                                     )
    )
    Appellant-Petitioner,                     )
    )
    vs.                                )      No. 49A02-1104-CR-386
    )
    STATE OF INDIANA,                                )
    )
    Appellee-Respondent.                      )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Robert R. Altice, Judge
    The Honorable Amy J. Barbar, Magistrate
    Cause No. 49G02-0001-PC-2522
    January 9, 2012
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    BARNES, Judge
    Case Summary
    Jesse Baker appeals the trial court’s denial of his motion to correct erroneous
    sentence. We affirm.
    Issue
    Baker raises one issue, which we restate as whether the trial court abused its
    discretion by denying his motion to correct erroneous sentence.
    Facts
    In 2000, the trial court sentenced Baker to twenty years for his conviction for
    Class B felony aggravated battery, enhanced by twenty years for his status as an habitual
    offender. The trial court ordered that the sentence be consecutive to a twenty-year
    sentence for Baker’s conviction for Class B felony possession of a firearm by a serious
    violent felon, for an aggregate sentence of sixty years. We affirmed Baker’s convictions
    on direct appeal. Baker v. State, 
    747 N.E.2d 633
     (Ind. Ct. App. 2001), trans. denied.
    Baker then filed a petition for post-conviction relief, which the post-conviction court
    denied. On appeal, we affirmed the denial of Baker’s petition for post-conviction relief.
    Baker v. State, No. 49A05-0408-PC-451 (Ind. Ct. App. Feb. 15, 2005).
    In March 2011, Baker filed a pro se motion to correct erroneous sentence. Baker
    argued that the same underlying conviction could not be used to support both his
    conviction for possession of a firearm by a serious violent felon and his status as an
    habitual offender. The trial court denied the motion, finding that Baker’s claims did not
    involve sentencing errors that were clear from the face of the judgment. Baker now
    appeals.
    2
    Analysis
    Baker argues that the trial court erred by denying his motion to correct erroneous
    sentence.   When reviewing a trial court’s decision to deny a motion to correct an
    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 will be found only when the trial court’s decision is against the logic
    and effect of the facts and circumstances before it. 
    Id.
     However, the trial court’s legal
    conclusions are reviewed under a de novo standard of review. 
    Id.
    An inmate who believes he or she has been erroneously sentenced may file a
    motion to correct the sentence pursuant to Indiana Code Section 35-38-1-15:
    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.
    A motion to correct erroneous sentence may be filed only to address a sentence that is
    “erroneous on its face.” Neff v. State, 
    888 N.E.2d 1249
    , 1251 (Ind. 2008) (quoting
    Robinson v. State, 
    805 N.E.2d 783
    , 786 (Ind. 2004)). Other sentencing errors must be
    addressed via direct appeal or post-conviction relief. 
    Id.
     In addition, a motion to correct
    erroneous sentence may only arise out of information contained on the formal judgment
    of conviction, not from the abstract of judgment. 
    Id.
     If the county does not issue
    3
    judgments of conviction, such as in Marion County, then the trial court’s abstract of
    judgment will serve as an appropriate substitute for purposes of making the claim. 
    Id.
    On appeal, Baker argues that the same underlying conviction could not be used to
    support both his conviction for possession of a firearm by a serious violent felon and his
    status as an habitual offender.1 Baker’s appendix does not contain the trial court’s
    abstract of judgment, but it does contain the Chronological Case Summary, which
    explains the trial court’s order regarding his sentences.                Details of the underlying
    convictions used to support his conviction for possession of a firearm by a serious violent
    felon and his status as an habitual offender are not evident from the trial court’s
    judgment. His argument may be considered only by reference to matters outside of the
    face of the trial court’s orders. Baker has failed to establish any facial error in his
    sentencing judgment. Consequently, his argument must be raised, if at all, through a
    successive petition for post-conviction relief. The trial court did not abuse its discretion
    when it denied Baker’s motion to correct erroneous sentence.
    Conclusion
    The trial court properly denied Baker’s motion to correct erroneous sentence. We
    affirm.
    Affirmed.
    1
    Baker also argues on appeal that he was improperly found to be an habitual offender “where the State
    failed to prove the required statutory sequence of the commissions of two prior unrelated felonies and
    their relation to the present underlying felony.” Appellant’s Br. p. 4. Baker did not make this argument
    to the trial court in his motion to correct erroneous sentence. He, therefore, has waived this argument.
    Stokes v. State, 
    908 N.E.2d 295
    , 301 (Ind. Ct. App. 2009) (holding that “the failure to object at trial
    results in a waiver of an issue on appeal”), trans. denied. Waiver notwithstanding, this argument also
    requires consideration of matters outside the face of the trial court’s sentencing order. Consequently, it
    cannot be raised by way of a motion to correct erroneous sentence.
    4
    KIRSCH, J., and BRADFORD, J., concur.
    5
    

Document Info

Docket Number: 49A02-1104-CR-386

Filed Date: 1/9/2012

Precedential Status: Non-Precedential

Modified Date: 4/17/2021