Shawn Twitty v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 13 2019, 9:34 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Shawn Twitty Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shawn Twitty, November 13, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-500
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-9503-CF-33600
Sharpnack, Senior Judge.
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Statement of the Case
[1] Shawn Twitty appeals from the denial of his motion to correct erroneous
sentence, contending that the doctrine of amelioration applies. Finding that
Twitty has already challenged his consecutive sentences, raising the same issue
several times, we affirm the decision of the trial court, rejecting his most recent
challenge.
Issue
[2] Twitty presents the following issue which we restate as the following question:
Did the trial court err by denying Twitty’s motion to correct erroneous
sentence?
Facts and Procedural History
[3] In a memorandum decision, a panel of this court affirmed Twitty’s convictions
of three counts of attempted murder, each as a Class A felony, and one count of
carrying a handgun without a license, a Class A misdemeanor, and affirmed the
trial court’s sentencing decision. Twitty v. State, No. 49A05-9601-CR-16, slip
op. at 2-3 (Ind. Ct. App. Aug. 18, 1997), trans. denied (“Twitty I”). The facts
recited in the direct appeal follow:
On the night of March 4, 1995, Garcia Scott, Chabwera
Underwood, and Craig Mushatte went with a group of friends to
the Barritz Nightclub in Indianapolis. While they were there, a
fight broke out between the group and Shawn Twitty and his
friends. After the two groups were ejected from the club, the
fight continued in the parking lot, where Scott and Underwood
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were both shot in the head. Scott was permanently blinded as a
result of the shooting and Underwood suffered irreversible
memory loss and motor skills impairment.
At Twitty’s jury trial, Mushatte testified that he saw Twitty
remove a gun from the trunk of a car and shoot it at Mushatte,
Scott, and Underwood. Mushatte testified that he believed the
weapon was a nine millimeter gun. Twitty and others left in the
car from which Twitty had removed the gun. The car was later
found at Twitty’s residence. Police at the crime scene found a
spent bullet jacket which a ballistics expert testified was fired
from a nine millimeter gun. Two days later, Mushatte identified
Twitty in a photo array as the person who fired the gun.
Twitty received forty-five year sentences on each of the three
attempted murder counts and a one year sentence on the fourth
count, carrying a handgun without a license. The sentences for
counts I and II were to be served consecutively, and the sentences
on counts II and IV were to be served concurrently with the
sentences for counts I and II.
[4] Twitty filed a petition for post-conviction relief on November 9, 1998. After
amendments by counsel, among the issues presented to the post-conviction
court was that appellate counsel did not argue on direct appeal that the trial
court erred in imposing consecutive sentences. The post-conviction court
denied Twitty’s petition, and the denial was affirmed on appeal. Twitty v. State,
49A02-0503-PC-199 (Ind. Ct. App. Sept. 13, 2005) (“Twitty II”).
[5] On January 28, 2019, Twitty moved to correct erroneous sentence, raising the
doctrine of amelioration in support of that motion. His motion was denied and
this appeal ensued.
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Discussion and Decision
[6] Twitty challenges the denial of his motion to correct erroneous sentence, in
which he cited Indiana Code section 35-38-1-15 (1983), which provides as
follows:
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.
[7] Our Supreme Court has stated that 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 v. State, 805 N.E.2d 783,
785 (Ind. 2004) (citation omitted). A motion to correct erroneous sentence is
appropriate only when the sentencing error is “clear from the face of the
judgment imposing the sentence in light of the statutory authority.” Id. 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.
Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct. App. 2010), trans. denied. Such claims
should instead be addressed on direct appeal or through post-conviction relief.
Robinson, 805 N.E.2d at 787. A motion to correct erroneous sentence is a
narrow remedy, and a reviewing court will strictly apply the requirement of a
facially erroneous sentence. Id.
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[8] On appeal, we review a trial court’s denial of a motion to correct erroneous
sentence for an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct.
App. 2012). 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.
[9] In the direct appeal of his convictions and sentencing, a panel of this court
addressed Twitty’s challenge to his sentence, which included an argument that
the trial court erred by imposing consecutive forty-five year sentences for two of
the attempted murder counts. Twitty’s argument on direct appeal, as pertained
to his sentence, specifically referred to Indiana Code section 35-50-1-2(c),
limiting the total of the consecutive terms of imprisonment for felony
convictions arising out of a single episode of criminal conduct. The exceptions
listed in the subsection of the statute included murder and felony convictions
for which an enhanced sentence is imposed because the defendant knowingly
and intentionally caused serious bodily injury to the victim. Twitty argued,
without citation to authority, that because attempted murder is a crime separate
from murder, and, thus not among the statutory exceptions, he could not be
sentenced to a term of more than fifty years, which was the presumptive
sentence for murder at the time. See Ind. Code § 35-50-2-3 (1994).
[10] Instead of deeming the issue waived for failure to cite to authority, we
considered the argument and reviewed case law, ultimately concluding that the
statutory reference to murder convictions necessarily included attempted
murder convictions as exempt from consecutive sentencing limitations. Twitty
I, slip op. at 5-7.
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[11] In 1998, Twitty filed a petition for post-conviction relief. After amendments by
counsel, among the issues presented to the post-conviction court was whether
Twitty had received ineffective assistance of trial and appellate counsel. On
January 12, 2005, the post-conviction court denied the petition.
[12] Next, Twitty appealed the denial of his petition for post-conviction relief. As
respects his sentencing challenges, Twitty presented those arguments in his
claim of ineffective assistance of appellate counsel. Shortly after our decision in
Twitty’s direct appeal, our Supreme Court handed down a case discussing how
to treat consecutive sentencing in attempted murder cases. See Greer v. State,
684 N.E.2d 1140 (Ind. 1997).
[13] Greer defined the steps to be taken in analyzing whether consecutive sentences
are warranted under the sentencing statute in effect at that time. The first step
is to identify the presumptive sentence for the felony that is one class higher
than the most serious felony with which the defendant was charged. 684
N.E.2d at 1142. Murder is the next highest offense, therefore, the presumptive
sentence is fifty years. Regarding Greer’s convictions for three counts of
attempted murder and one count of criminal deviate conduct, for which
consecutive sentences were imposed, the next step is to determine if the
defendant received an enhanced penalty because the felony resulted in serious
bodily injury, and, if so, did the defendant knowingly or intentionally cause the
serious bodily injury. Id.
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[14] In Twitty’s case, the trial court enhanced all three attempted murder
convictions to forty-five years based in pertinent part on the seriousness of the
crime. Twitty I, slip op. at 8. We found that the evidence was sufficient to
support Twitty’s conviction, which meant that his conduct was done knowingly
and intentionally. Id. at 5. The specific circumstances of the crime, beyond
that which is needed to support an attempted murder conviction, establish that
the enhanced penalty was imposed because the felony resulted in serious bodily
injury. Scott was permanently blinded because of the shooting and Underwood
suffered irreversible memory loss and motor skills impairment.
[15] Twitty argued in his petition that appellate counsel should have cited to Greer in
the petition to transfer filed in his case. When reviewing this argument, we
noted that the Supreme Court reached the same conclusion as did our court in
Twitty’s direct appeal, but reached that conclusion applying a different
rationale. After reciting Twitty’s burden of establishing the claim and the
deference afforded to appellate counsel’s choice of which issues to raise on
appeal, we concluded that appellate counsel was not ineffective. Twitty II, slip
op. at 17-19. Citation to Greer would not have provided Twitty the sentencing
relief he was seeking.
[16] Twitty argues that his consecutive sentences for two of the attempted murder
counts is erroneous on the face of the sentencing order. The State contends
that: (1) the sentencing order is not erroneous on its face; (2) the doctrine of
amelioration is inapplicable; and (3) Twitty’s claim is barred by res judicata.
We have considered each of the arguments presented by the parties and
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conclude that the dispositive argument is that Twitty’s claim is barred by res
judicata. Thus, the trial court did not err in denying the motion.
[17] Twitty’s support for his motion to correct erroneous sentence is his claim that
the consecutive sentences for two of his three attempted murder convictions
constituted an erroneous sentence under the doctrine of amelioration and his
citation to the timing of amendments to Indiana Code section 35-50-1-2 and
case law addressing how to treat attempted murder convictions for purposes of
consecutive sentencing.
[18] Twitty unsuccessfully challenged his consecutive sentences on direct appeal and
transfer was denied by the Supreme Court. Twitty unsuccessfully challenged
his consecutive sentences in a petition for post-conviction relief. This Court
affirmed the denial of Twitty’s petition. Further, Twitty challenged his
consecutive sentences in a motion to correct erroneous sentence.
[19] “Res judicata, whether in the form of claim preclusion or issue preclusion (also
called collateral estoppel), aims to prevent repetitious litigation of disputes that
are essentially the same, by holding a prior final judgment binding against both
the original parties and their privies.” Becker v. State, 992 N.E.2d 697, 700 (Ind.
2013). Here, Twitty has raised the same or similar challenges to his consecutive
sentences, each time resulting in a denial of relief. We conclude that Twitty’s
argument is barred by res judicata. Thus, the trial court did not err by denying
Twitty relief.
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Conclusion
[20] Because Twitty’s motion to correct erroneous is barred by res judicata, we
conclude that the trial court did not err by denying Twitty the relief requested.
[21] Affirmed.
Kirsch, J., and Robb, J., concur.
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