Terrance L. Mitchem v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 14 2017, 8:02 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Terrance L. Mitchem Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terrance L. Mitchem, September 14, 2017
Appellant-Defendant, Court of Appeals Case No.
71A05-1702-CR-415
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff. Miller, Judge
Trial Court Cause No.
71D08-9506-CF-260
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Terrance Mitchem (Mitchem), appeals the trial court’s
denial of his motion to correct erroneous sentence.
[2] We affirm.
ISSUE
[3] Mitchem raises five issues on appeal, which we consolidate and restate as the
following single issue: Whether the trial court properly denied his motion to
correct erroneous sentence.
FACTS AND PROCEDURAL HISTORY
[4] For the recitation of the facts, we rely on our supreme court’s opinion in
Mitchem’s direct appeal:
On June 12, 1995, [Mitchem] and two codefendants, Michael
Greer and Dorian Lee, armed with weapons, entered a home
occupied by four adults. [Mitchem] raped the two female
occupants. [Mitchem] then told the four occupants to line up
against the wall with their backs towards [him], Greer[,] and Lee.
[Mitchem] then changed his mind and told the occupants to turn
around to face [him] and to kneel. Greer, Lee, and [Mitchem]
opened fire on all four occupants. One victim died and the other
three survived.
Mitchem v. State, 685 N.E.2d 671, 673 (Ind. 1997). On June 14, 1995, Mitchem
was charged with murder; burglary, a Class B felony; three Counts of attempted
murder, Class A felonies; two counts of rape, Class A felonies; and one Count
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of criminal deviate conduct, a Class A felony. On December 11, 1995, a jury
acquitted Mitchem of the burglary offense, but convicted him of all other
charges. On January 11, 1996, the trial court sentenced Mitchem to fifty-five
years for murder; and concurrent thirty-five years on each of the three Counts of
attempted murder, two Counts of rape, and one Count of criminal deviate
conduct. Mitchem’s fifty-five-year murder sentence was to be served
consecutively with his other sentences, for an aggregate sentence of ninety
years. On September 5, 1997, our supreme court affirmed Mitchem’s
conviction and sentence on direct appeal. Id. at 680.
[5] On January 8, 2001, Mitchem filed a petition for post-conviction relief. Due to
changes of counsel, recusal of the initial post-conviction judge, and various
continuances, the post-conviction court did not commence an evidentiary
hearing on Mitchem’s petition until December 4, 2009. During that time, the
post-conviction court observed that the chronological case summary had
included a notation that an amendment to the petition was anticipated, but had
not been filed. Therefore, the post-conviction court directed Mitchem’s post-
conviction counsel to clarify the issues as presented in Mitchem’s original pro se
petition for post-conviction relief. Accordingly, Mitchem’s counsel restated the
claims as follows: (1) whether trial counsel was ineffective for abandoning an
issue regarding suppression of a firearm; (2) whether an adequate record was
made to preserve an error relating to the requirement of specific intent to kill (as
related to attempted murder offenses); (3) alleged fundamental error in jury
instructions; (4) whether appellate counsel was ineffective for failing to raise an
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argument regarding the jury instructions; and (5) whether appellate counsel was
ineffective for omitting a sentencing argument as to a mitigating circumstance.
On August 17, 2011, the post-conviction court issued its findings of fact,
conclusions of law, and order denying Mitchem’s post-conviction relief.
Mitchem appealed, claiming that he was denied procedural due process because
the post-conviction court addressed, in its findings of fact, conclusions of law,
and order, issues presented by his post-conviction counsel at the post-conviction
hearing, as opposed to issues he had delineated in his original pro-se petition for
post-conviction relief. This court denied Mitchem’s appeal. See Mitchem, No.
719A03-1110-PC-497, slip op. at 2. On December 16, 2016, Mitchem filed a pro
se motion to correct erroneous sentence. On January 24, 2017, the State filed its
response. On February 9, 2017, the trial court denied Mitchem’s motion.
[6] Mitchem now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[7] Mitchem appeals the trial court’s denial of his motion to correct erroneous
sentence. We review a decision on a motion to correct erroneous sentence for
an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010).
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. Indiana Code section 35-
38-1-15 provides:
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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 this 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) (quoting Gaddie v.
State, 566 N.E.2d 535, 537 (Ind. 1991)). As such, a motion to correct 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. Id. at 787.
Claims that require consideration of proceedings before, during, or after trial
may not be presented by way of a motion to correct sentence. Id.
[8] In his pro se appellate brief, Mitchem makes five arguments, two of which the
State argues are not appropriate for a motion to correct erroneous sentence.
We agree. For example, Mitchem challenges his murder sentence, claiming
that it violates Blakely v. Washington, 542 U.S. 296, 301 (2004), which holds that
“the facts used to support an enhanced sentence, other than the fact of a prior
conviction, must be found by a jury or admitted by a defendant.” Fulkrod v.
State, 855 N.E.2d 1064, 1067 (Ind. Ct. App. 2006) (citing Blakely, 542 U.S. at
301). But “a Blakely claim is not the type of claim which may be brought
through a motion to correct erroneous sentence” because it would require us to
“look beyond the face of the judgment to see if imposition of an enhanced
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sentence was based upon facts determined through constitutionally permissible
channels.” Fulkrod, 855 N.E.2d at 1067.
[9] In addition, Mitchem argues that the trial court abused its statutory sentencing
authority by ordering him to serve his fifty-five-year murder sentence
consecutive to his concurrent thirty-five-year sentences for his three Class A
felony attempted murder convictions. Although phrased differently, this is an
issue that was determined by our supreme court on direct appeal. See. Mitchem,
685 N.E.2d at 680 (holding that to “impose consecutive sentences, there must
be at least one aggravator” and in Mitchem’s case there were several
aggravators present, i.e. “(1) the number of times the victims were shot; (2) the
victims were asked to helplessly kneel before [Mitchem] and face [Mitchem]
while he deliberately executed the victims; and (3) the female victims were
repeatedly raped and forced to perform deviate sexual acts”)
[10] Looking at the remainder of Mitchem’s three arguments, we find them
appropriate for a motion to correct erroneous sentence. First, Mitchem claims
the trial court applied the wrong sentencing statute with regard to his murder
conviction. Secondly, Mitchem asserts that his thirty-five-year sentences for the
attempted murder convictions were not within the statutory sentencing range.
Lastly, Mitchem claims that the Abstract of Judgement shows an omission with
regards to his additional credit time of 213 days earned prior his sentencing.
We will address each issue in turn.
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II. Applicable Sentencing Statute
[11] Mitchem contends that the trial court applied the wrong version of the murder
sentencing statute (I.C. § 35-50-2-3(a) (1995), P.L. 148-1995 (effective July
1995)), when it imposed the fifty-five-year sentence for the murder conviction.
To address this claim, we must discuss in some detail a confusing period in the
history of Indiana’s murder sentencing statute, Indiana Code section 35-50-2-3.
[12] As explained by our supreme court in Smith v. State, 675 N.E.2d 693, 695 (Ind.
1996), the Indiana General Assembly amended the murder sentencing statute
twice in 1994. The first amendment raised the presumptive sentence for murder
from forty to fifty years, but reduced the possible enhancement from twenty to
ten years. Id. See P.L. 164-1994 1 (approved March 11, 1994 and effective July
1, 1994). In other words, the presumptive sentence was raised, but the
maximum sentence remained unchanged. See id. at 697. The second
amendment “allowed for the exclusion of mentally retarded individuals from
the death or life imprisonment without parole sentencing option of the
sentencing statute, but did not incorporate the raised presumptive sentence of
1
The amendment read:
SECTION 2. IC 35–50–2–3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1994]: Sec.
3 (a) A person who commits murder shall be imprisoned for a fixed term of forty (40) fifty (50) years, with
not more than twenty (20) ten (10) years added for aggravating circumstances or not more than ten (10) years
subtracted for mitigating circumstances; in addition, the person may be fined not more than ten thousand
dollars ($10,000).
(b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder
was committed may be sentenced to:
(1) death; or
(2) life imprisonment without parole; under section 9 of this chapter.
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the first amendment. Id. at 695. See P.L. 158-1994 (approved March 15, 1994
and effective July 1, 1994). 2 This situation was corrected on May 5, 1995, when
the General Assembly incorporated the higher presumptive sentence from the
first amendment with the other provisions of the second amendment 3. Id. But
for those who committed murder after the amendments became effective but
before the situation was corrected, “there were two different [murder sentencing
statutes] in effect, each with a different presumptive sentence.” Id. The
2
SECTION 5. IC 35–50–2–3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1994]:
Sec. 3 (a) A person who commits murder shall be imprisoned for a fixed term of forty (40) years, with not
more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted
for mitigating circumstances; in addition, the person may be fined not more than ten thousand dollars
($10,000).
(b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder
was committed may be sentenced to:
(1) death; or
(2) life imprisonment without parole;
under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is a mentally
retarded individual.
3
As noted, the General Assembly finally corrected the problem on May 5, 1995 when it amended the
Indiana Code to make technical corrections. The amendment read as follows:
SECTION 128. IC 35–50–2–3, AS AMENDED BY P.L. 158–1994, SECTION 5 AND P.L. 164–1994,
SECTION 2, IS CORRECTED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3.(a) A
person who commits murder shall be imprisoned for a fixed term of forty (40) fifty (50) years, with not more
than twenty (20) ten (10) years added for aggravating circumstances or not more than ten (10) years subtracted
for mitigating circumstances; in addition, the person may be fined not more than ten thousand dollars
($10,000).
(b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder
was committed may be sentenced to:
(1) death; or
(2) life imprisonment without parole;
under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is a mentally
retarded individual.
P.L. 2–1995 (approved May 5, 1995).
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question before the court in Smith was which statute to apply to those who
committed murder when both statutes were in effect.
[13] The defendant in Smith pleaded guilty to murder, and the parties agreed that the
defendant would receive a sentence of no more than fifty years executed. Id.
At the plea hearing, the parties appeared to agree that the fifty-year presumptive
sentencing statute applied. Id. at 696. At sentencing, however, the defendant
argued that the forty-year sentencing statute was appropriate. Id. On appeal,
our supreme court agreed with the defendant, holding that when sentencing for
murders committed between July 1, 1994 and May 5, 1995, trial courts must
employ the statute which prescribes a forty-year presumptive sentence and
allows an enhancement of up to twenty years.
[14] The long-standing rule that the sentencing statute in effect at the time a crime is
committed governs the sentence for that crime. Gutermuth v. State, 868 N.E.2d
427, 431 n. 4 (Ind. 2007). Thus, on June 12, 1995, the day Mitchem committed
the murder, the presumptive sentence for murder was fifty years with a possible
enhancement of ten years. See P.L. 164-1994. Mitchem’s argument that P.L.
158-1994, providing for a forty-year presumptive sentence was the applicable
statute, lacks merit.
III. Statutory Range
[15] Next, Mitchem claims that the concurrent thirty-five-year sentences for the
Class A attempted murder felonies, were not within the statutory sentencing
range. Specifically, Mitchem argues that he should have been sentenced to a
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fixed term of twenty-five years on each of his Class A felonies instead of thirty-
five years. At the time of the instant offenses, the presumptive sentence for a
Class A felony was twenty-five years, with up to twenty years added for
aggravating circumstances. See I.C.§ 35-50-2-4 (1994). Thus, Mitchem faced a
possible sentence of forty-five years on a single Count. Again, we find no merit
in Mitchem’s claim, and we conclude that the trial court did not abuse its
discretion by denying his motion to correct erroneous sentence.
IV. Credit Time
[16] In his last argument, Mitchem claims that his sentence is erroneous because he
is entitled to receive additional credit time of 213 days spent in pre-trial
confinement. See I.C. § 35-38-3-2 (requiring the judgment of conviction to
include “the amount of credit, including credit time earned, for time spent in
confinement before sentencing”). In support of his claim, Mitchem points us to
the Abstract of Judgment, indicating the alleged omission.
[17] In Robinson v. State, 805 N.E.2d 783, 784 (Ind. 2004), the defendant filed a
motion to correct erroneous sentence asserting that the trial court’s sentence
improperly failed to award credit for time served and good time credit. The
supreme court explained that “[i]t is the court’s judgment of conviction and not
the abstract of judgment that is the official trial court record and which
thereafter is the controlling document. Therefore, a motion to correct
erroneous sentence may not be used to seek corrections of claimed errors or
omissions in an abstract of judgment.” Id. at 794. See also Jackson v State, 806
N.E.2d 773, 774 (Ind. 2004) (“A motion to correct sentence may not be used to
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challenge entries or omissions in an abstract of judgment”); Laycock v. State, 805
N.E.2d 796, 798 (Ind. 2004) (“Entries in the abstract of judgment may not be
challenged by a motion to correct sentence.”).
[18] Mitchem cites to the Abstract of Judgement showing that he only received 213
days of earned credit time. Mitchem claims that there was an omission in the
abstract of judgment since it failed to include his additional 213 days of credit
time earned during pre-sentence confinement. We recognize that Mitchem’s
challenge is to the abstract of judgment and not the sentencing judgment. As
the court held in Robinson, “a motion to correct sentence may not be used to
seek corrections of claimed errors or omissions in an abstract of judgment.”
Robinson, 805 N.E.2d at 794. Accordingly, the trial court did not err in denying
his motion.
CONCLUSION
[19] Based on the foregoing, we conclude that the trial court did not abuse its
discretion in denying Mitchem’s motion to correct erroneous sentence.
[20] Affirmed.
[21] Robb, J. and Pyle, J. concur
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