Michael D. Hickingbottom v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 19 2016, 9:20 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Michael D. Hickingbottom Gregory F. Zoeller
New Castle, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael D. Hickingbottom, December 19, 2016
Appellant-Defendant, Court of Appeals Case No.
45A05-1606-CR-1362
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D.
Appellee-Plaintiff. Murray, Judge
Trial Court Cause No.
45G02-0108-CF-178
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CR-1362 | December 19, 2016 Page 1 of 4
Summary
[1] Michael Hickingbottom appeals the denial of his motion to correct erroneous
sentence. We affirm.
Issue
[2] Hickingbottom presents two issues for review, which we consolidate and restate
as whether the trial court abused its discretion by denying his motion to correct
erroneous sentence.
Facts
[3] In October 2004, at his third trial, a jury convicted Hickingbottom of murder.
Hickingbottom v. State, No. 45A05-0705-PC-243 (Ind. Ct. App. July 11, 2008),
trans. denied. The trial court sentenced Hickingbottom to sixty years of
imprisonment. On direct appeal, this court affirmed Hickingbottom’s
conviction. Id. Hickingbottom then sought post-conviction relief. Id. He
alleged that he received ineffective assistance of trial counsel. Id. Following a
hearing, the post-conviction court denied Hickingbottom’s petition. Id. On
appeal, this court affirmed the trial court’s denial of Hickingbottom’s petition.
Id. In May 2016, Hickingbottom filed a “Motion to Correct Erroneous
Sentence and Claims of Fundamental Error.” App. p. 18. The trial court
denied the motion without a hearing on May 11, 2016. Hickingbottom now
appeals.
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Analysis
[4] Hickingbottom contends the trial court erred by denying his motion to correct
erroneous sentence.
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.
Ind. Code § 35-38-1-15. “When we review the court’s decision on a motion to
correct erroneous sentence, we defer to the trial court’s factual finding and
review its decision only for abuse of discretion.” Fry v. State, 939 N.E.2d 687,
689 (Ind. Ct. App. 2010) (quotations omitted) (citations omitted). Our supreme
court has “repeatedly cautioned” that a motion to correct erroneous sentence is
“only appropriate when the sentence is erroneous on its face.” Robinson v. State,
805 N.E.2d 783, 786 (Ind. 2004) (quotation omitted) (citation omitted).
[5] Hickingbottom does not contend the sentencing statement contains a facial
error. Instead, he raises substantive issues, including a constitutional
sentencing argument, allegations of fundamental error, and a claim of
ineffective assistance of counsel. These are not the sort of issues the motion to
correct erroneous sentence and a trial court’s ruling thereon are permitted to
address. “[T]he statutory motion to correct sentence should [] be narrowly
confined to claims apparent from the face of the sentencing judgment.” Id. at
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787. Because Hickingbottom raises issues beyond the confines of that which a
trial court may consider, the trial court did not abuse its discretion by denying
Hickingbottom’s motion.
Conclusion
[6] The trial court did not abuse its discretion when it denied Hickingbottom’s
motion to correct erroneous sentence. We affirm.
[7] Affirmed.
Kirsch, J., and Robb, J., concur.
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