Lennard Coleman, Sr. 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 Dec 10 2019, 8:54 am
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
Lennard Coleman, Sr. Curtis T. Hill, Jr.
Bunker Hill, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lennard Coleman, Sr., December 10, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-859
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-0503-FB-18
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019 Page 1 of 6
Case Summary
[1] Lennard Coleman, Sr. (“Coleman”) appeals the trial court’s denial of his
motion to correct erroneous sentence. He presents the issue of whether the trial
court abused its discretion by denying the motion.1 We affirm.
Facts and Procedural History
[2] In 2005, Coleman was convicted of Robbery while armed with a Deadly
Weapon, a Class B felony,2 and found to be a habitual offender.3 He was
sentenced to twenty years imprisonment, enhanced by thirty years due to his
status as a habitual offender. Coleman appealed, challenging his pretrial
identification as improper and arguing that his sentence was inappropriate. His
conviction and sentence were affirmed.
[3] On April 26, 2011, Coleman filed a petition for post-conviction relief, which
was later amended and denied. He filed a subsequent petition for post-
conviction relief, which was dismissed with prejudice. His petition for
permission to file a successive petition for post-conviction relief was denied.
1
Coleman also articulates an issue as to whether the sentencing order and Abstract of Judgment are
inconsistent because one document omits some offenses that the other includes. The State responds that any
inconsistency results from bifurcated proceedings whereby Coleman was convicted of robbery and, one year
later, pled guilty to additional offenses (including Criminal Confinement and Theft) under the same cause
number. Nonetheless, Coleman did not raise this issue in the trial court, and it is thus waived for appellate
review. Marshall v. State, 621 N.E.2d 308, 314 (Ind. 1993).
2
Ind. Code § 35-42-5-1. The offense is now a Level 3 felony.
3
I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019 Page 2 of 6
[4] On April 22, 2015, Coleman filed a motion to correct erroneous sentence,
challenging the sentencing court’s identification of aggravating and mitigating
circumstances. The motion was denied on May 18, 2015. Coleman appealed,
and a panel of this Court affirmed the denial. Coleman v. State, No. 79A05-
1506-CR-635, slip op. at 1 (November 10, 2015).
[5] On February 21, 2019, Coleman filed a second motion to correct erroneous
sentence, challenging the habitual offender enhancement. (App. at 14.) On
March 21, 2019, the trial court denied the motion:
Defendant’s Motion to Correct Erroneous Sentence is DENIED
for the reason that any error he now seeks to raise has been
waived since [it was] not raised previously by his prior appeals
and post-conviction matters. Furthermore, Defendant’s Motion
relies upon a version of the Habitual Offender Statute that was
not in effect at the time of his sentence in 2006.
Appealed Order at 1. Coleman now appeals.
Discussion and Decision
[6] We review the denial of a motion to correct erroneous sentence for an abuse of
discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An abuse
of discretion will be found only when the trial court’s decision is against the
logic and effect of the facts and circumstances before it. Id. However, the trial
court’s legal conclusions are reviewed under a de novo standard. Id.Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019 Page 3 of 6
[7] An inmate who believes that he or she has been erroneously sentenced may file
a motion to correct an erroneous sentence. Neff v. State, 888 N.E.2d 1249, 1250-
51 (Ind. 2008). Indiana Code Section 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.
[8] Motions made pursuant to Indiana Code Section 35-38-1-15 may only be used
to attack a sentence that is “erroneous on its face.” Robinson v. State, 805
N.E.2d 783, 786 (Ind. 2004). Alleged sentencing errors that require
consideration of matters outside the face of the sentencing judgment can only
be attacked by direct appeal or, when appropriate, petitions for post-conviction
relief. 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
sentence.” Id.
[9] Coleman argues that, under Indiana Code Section 35-50-2-8, he could not be
adjudicated a habitual offender because one or more of his prior felony
convictions was more than ten years old. The State argues that the motion to
correct erroneous sentence is not a facial attack on the sentencing order and,
thus, is not permissible under Robinson. We agree.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019 Page 4 of 6
[10] Coleman’s sentence is not facially erroneous. He was sentenced to twenty
years for his Class B felony robbery conviction and the sentence was enhanced
by thirty years due to his habitual offender status. At the time Coleman was
sentenced, the maximum term for a Class B felony was twenty years, with an
advisory sentence of ten years. I.C. § 35-50-2-5(a).4 Under the habitual
offender statute, Coleman’s sentence was subject to an enhancement of up to
thirty years. I.C. § 35-50-2-8.5 Coleman has not shown that his fifty-year
sentence is outside the statutory parameters. He argues that the State relied
upon one or more stale predicate felonies.6 But resolution of this argument
would require examination of matters outside the face of the sentencing order,
in particular, the propriety of the prior felonies used to support the habitual
offender adjudication. His argument is not properly before the court through a
motion to correct erroneous sentence.
4
Coleman received the maximum sentence under Indiana Code Section 35-50-2-5(a), which provided: “A
person who commits a Class B felony (for a crime committed before July 1, 2014) shall be imprisoned for a
fixed term of between six (6) and twenty (20) years, with the advisory sentence being ten (10) years.”).
5
“The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less
than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for
the underlying offense. However, the additional sentence may not exceed thirty (30) years.” I.C. § 35-50-2-8
(2006).
6
Coleman sought retroactive application of a change to the habitual offender sentencing statute. Effective in
2013, several years after Coleman’s conviction and sentencing, Indiana Code Section 35-50-2-8 was amended
to include a ten-year limitation for some predicate offenses. The time period for that limitation is calculated
with reference to release from imprisonment, probation, or parole, whichever is latest. In Cox v. State, 38
N.E.3d 702, 704 (Ind. Ct. App. 2015), a panel of this Court held that the version of the habitual offender
statute in effect at the time of the offense is the applicable version.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019 Page 5 of 6
Conclusion
[11] The trial court properly denied Coleman’s motion to correct erroneous
sentence.
[12] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-859 | December 10, 2019 Page 6 of 6