Damon Nelson v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                     FILED
    this Memorandum Decision shall not be                                 Oct 27 2017, 10:03 am
    regarded as precedent or cited before any                                  CLERK
    Indiana Supreme Court
    court except for the purpose of establishing                              Court of Appeals
    and Tax Court
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
    Damon Nelson                                             Curtis T. Hill, Jr.
    Pendleton, Indiana                                       Attorney General of Indiana
    Angela Sanchez
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Damon Nelson,                                            October 27, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A02-1611-CR-2600
    v.                                               Appeal from the Marion Superior
    Court
    State of Indiana,                                        The Honorable Stanley Kroh,
    Appellee-Plaintiff.                                      Magistrate
    Trial Court Cause Nos.
    49G03-0108-FB-172920
    49G03-0108-PC-172920
    Brown, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017        Page 1 of 6
    [1]   Damon Nelson appeals the order of the trial court denying his motion to correct
    erroneous sentence. Nelson raises one issue which we revise and restate as
    whether the trial court abused its discretion in denying his motion. We affirm.
    Facts and Procedural History
    [2]   On December 19, 2001, the court sentenced Nelson in Cause No. 49G03-0108-
    DF-172920 (“Cause No. 920”) to twenty years for aggravated battery as a class
    B felony, eight years for battery as a class C felony, and one year for battery as a
    class A misdemeanor.
    [3]   On November 13, 2015, the court sentenced Nelson under cause number
    49G14-1401-FD-264 (“Cause No. 264”) to 1020 days for possession of cocaine
    or a schedule I or II drug pursuant to a plea agreement and dismissed other
    charges. The sentencing order states that he had already served 510 days and
    had earned 510 credit days.
    [4]   On October 19, 2016, Nelson, pro se, filed a motion to correct erroneous
    sentence under Cause No. 920 alleging that he was released from the
    Department of Correction on May 31, 2013, was rearrested on refiled charges
    on January 23, 2014, and remained in custody until December 3, 2015 with a
    parole hold, and that the parole warrant was served on January 28, 2014
    starting his sentence. He also asserted that he remained in jail for 705 days on a
    parole hold and was entitled to credit days. On October 20, 2016, the court
    denied Nelson’s motion.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 2 of 6
    Discussion
    [5]   The issue is whether the trial court abused its discretion in denying Nelson’s
    motion to correct erroneous sentence. Nelson argues that he should be
    awarded “credit and good days,” that the trial court violated Ind. Code §§ 35-
    50-6-3 and 35-50-6-4, and that “those sentences are to run consecutive I was
    only credited 510-1020 total days toward the case however I remained in
    custody a total of 702-1404 days.” Appellant’s Brief at 7. The State argues that
    Nelson waived all of his claims for failure to make a cogent argument. The
    State also argues that regardless of waiver, Nelson appears to be arguing that he
    should have received more credit days under Cause No. 920 for his
    confinement during the pendency of his case in Cause No. 264, that such an
    argument requires the trial court to look at matters outside the face of the
    judgment, and that the trial court properly denied Nelson’s motion.
    [6]   We note that although Nelson is proceeding pro se, such litigants are held to the
    same standard as trained counsel and are required to follow procedural rules.
    Evans v. State, 
    809 N.E.2d 338
    , 344 (Ind. Ct. App. 2004), trans. denied. Nelson
    does not cite to the record in his statement of the case, statement of the facts, or
    argument, and he does not include a standard of review. See Ind. Appellate
    Rule 46(A)(5) (governing the Statement of Case and providing that “[p]age
    references to the Record on Appeal or Appendix are required in accordance
    with Rule 22(C)”); Ind. Appellate Rule 46(A)(6) (providing that the Statement
    of Facts “shall be supported by page references to the Record on Appeal or
    Appendix in accordance with Rule 22(C)”); Ind. Appellate Rule 46(A)(8)
    Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 3 of 6
    (providing that “[e]ach contention must be supported by citations to the
    authorities, statutes, and the Appendix or parts of the Record on Appeal relied
    on, in accordance with Rule 22,” and that “[t]he argument must include for
    each issue a concise statement of the applicable standard of review”). To the
    extent Nelson fails to cite to relevant authority or the record or develop an
    argument with respect to the issue he attempts to raise on appeal, those
    arguments are waived. See Cooper v. State, 
    854 N.E.2d 831
    , 834 n.1 (Ind. 2006)
    (holding that the defendant’s contention was waived because it was “supported
    neither by cogent argument nor citation to authority”); Shane v. State, 
    716 N.E.2d 391
    , 398 n.3 (Ind. 1999) (holding that the defendant waived argument
    on appeal by failing to develop a cogent argument); Smith v. State, 
    822 N.E.2d 193
    , 202-203 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised
    on appeal where the party fails to develop a cogent argument or provide
    adequate citation to authority and portions of the record.”), trans. denied.
    [7]   To the extent Nelson is arguing that the trial court improperly denied his
    motion because he is entitled to credit time, we cannot say that reversal is
    warranted. Generally, we review a trial court’s decision on a motion to correct
    erroneous sentence only 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. Court of
    Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 4 of 6
    [8]   An inmate who believes he has been erroneously sentenced may file a motion
    to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 
    888 N.E.2d 1249
    , 1250-1251 (Ind. 2008). Ind. Code § 35-38-1-15 provides:
    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.
    [9]   In Robinson v. State, the Indiana Supreme Court noted that a motion to correct
    erroneous sentence is available only when the sentence is “erroneous on its
    face.” 
    805 N.E.2d 783
    , 786 (Ind. 2004) (citations omitted). The Court
    emphasized that “a motion to correct an erroneous sentence may only arise out
    of information contained on the formal judgment of conviction . . . .” 
    Neff, 888 N.E.2d at 1251
    (citing 
    Robinson, 805 N.E.2d at 793-794
    ). A motion to correct
    erroneous sentence may be only used to correct sentencing errors that are clear
    from the face of the judgment imposing the sentence in light of the statutory
    authority. 
    Robinson, 805 N.E.2d 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. 
    Id. Sentencing claims
    that are not
    facially apparent “may be raised only on direct appeal and, where appropriate,
    by post-conviction proceedings.” 
    Id. “Use of
    the statutory motion to correct
    sentence should thus be narrowly confined to claims apparent from the face of
    the sentencing judgment, and the ‘facially erroneous’ prerequisite should . . . be
    Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 5 of 6
    strictly applied . . . .” 
    Id. The Court
    also held that the “sentence” that is subject
    to correction under Ind. Code § 35-38-1-15 “means the trial court’s judgment of
    conviction imposing the sentence and not the trial court’s entries on the
    Department of Correction’s abstract of judgment form.” 
    Id. at 794.
    [10]   To address the claims that Nelson is entitled to credit would require a
    consideration of proceedings before, during, or after his sentencing. Thus, these
    arguments are not properly presented by way of a motion to correct erroneous
    sentence. We cannot say that the trial court abused its discretion by denying his
    motion. See Jackson v. State, 
    806 N.E.2d 773
    , 774 (Ind. 2004) (holding that the
    trial court properly denied the defendant’s motion to correct erroneous sentence
    and noting that a motion to correct erroneous sentence is available only to
    correct sentencing errors clear from the face of the judgment).
    Conclusion
    [11]   For the foregoing reasons, we affirm the denial of Nelson’s motion to correct
    erroneous sentence.
    [12]   Affirmed.
    Najam, J., and Kirsch, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2600 | October 27, 2017   Page 6 of 6