Bruce Morgan v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 21 2017, 5:26 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Bruce Morgan Curtis T. Hill, Jr.
Michigan City, Indiana Indianapolis, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bruce Morgan, March 21, 2017
Appellant-Defendant, Court of Appeals Case No.
35A02-1608-CR-1864
v. Appeal from the Huntington
Circuit Court
State of Indiana, The Honorable Thomas M. Hakes,
Appellee-Plaintiff. Judge
Trial Court Cause No.
35C01-0711-FB-78
Barnes, Judge.
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Case Summary
[1] Bruce Morgan appeals the denial of his motion to correct erroneous sentence.
We affirm.
Issue
[2] Morgan presents one issue for our review, which we restate as whether the trial
court abused its discretion by denying Morgan’s motion to correct erroneous
sentence.
Facts
[3] In February 2004, Morgan pled guilty to nine counts of burglary—eight Class B
felonies and one Class C felony. The plea agreement capped Morgan’s
executed sentence for each count at twelve and one-half years, and the parties
agreed the sentences for Counts 4 through 9 (five Class B felonies and the Class
C felony) would run concurrently. Morgan and the State otherwise did not
make an agreement regarding concurrent or consecutive sentencing. Pursuant
to the plea agreement, Morgan waived his right to appeal his sentence.
[4] On Counts 1 through 8, the trial court sentenced Morgan to serve eighteen
years with five and one-half years suspended for each count. On Count 9, the
trial court sentenced Morgan to seven years. The trial court ordered Morgan to
serve his sentences on Counts 1, 2, and 3 consecutively and Counts 4 through 9
concurrently. Morgan was ordered to serve his sentences on Counts 4 through
9 consecutive to Counts 1 through 3. Morgan’s executed sentence was fifty
years. Morgan appealed his sentence. This Court concluded Morgan explicitly
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waived his right to appellate review of his sentence and affirmed that sentence.
Morgan v. State, No. 35A02-0804-CR-350 (Ind. Ct. App. Sept. 26, 2008), trans.
denied. On July 21, 2016, Morgan filed a Motion to Correct Erroneous
Sentence. The trial court denied that motion, and Morgan now appeals.
Analysis
[5] Morgan argues 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).
[6] Morgan does not contend the sentencing order contains a facial error. Instead
he argues that his sentence violates the terms of his plea agreement. This is not
the sort of issue the motion to correct erroneous sentence and a trial court’s
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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 787. Because Morgan raises an issue beyond the
confines of that which a trial court may consider, the trial court did not abuse
its discretion by denying his motion.
Conclusion
[7] The trial court did not abuse its discretion when it denied Morgan’s motion to
correct erroneous sentence. We affirm.
[8] Affirmed.
Kirsch, J., and Robb, J., concur.
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