John Chupp v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 09 2015, 9:32 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT ATTORNEYS FOR APPELLEE
John Chupp, Pro Se Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Chupp, March 9, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A02-1408-CR-579
v. Appeal from the Marion Superior
Court; The Honorable Sheila A.
Carsile, Judge; The Honorable
State of Indiana, Stanley E. Kroh, Magistrate;
Appellee-Plaintiff. CR 82-81 A
May, Judge.
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[1] John Chupp appeals the denial of his Motion to Correct Erroneous Sentence.
As the trial court did not abuse its discretion, we affirm.
[2] Affirmed.
Facts and Procedural History
[3] In 1982, Chupp and two accomplices broke into a woman’s home in Southport,
robbed her, tied her up, and sexually assaulted her. A jury found Chupp guilty
of Class A felony burglary, Class A felony robbery, and Class B felony criminal
confinement. The trial court sentenced him to concurrent sentences of fifty
years for each Class A felony conviction, and to twenty years for the Class B
felony to run consecutively to the fifty-year sentences, for an aggregate sentence
of seventy years. Our Indiana Supreme Court affirmed Chupp’s convictions
and sentence. Chupp v. State, 509 N.E.2d 835 (Ind. 1987).
[4] We provided further procedural history in our opinion affirming the denial of
Chupp’s first Motion to Correct Erroneous Sentence:
On two separate occasions, Chupp filed a petition for post-conviction
relief, each of which was withdrawn without prejudice. On April 24,
2007, Chupp filed a third petition for post-conviction relief, asserting
newly discovered evidence and claiming that his sentence was
erroneous because the robbery and burglary convictions were
enhanced based on the same injuries. The post-conviction court
denied his petition. On appeal, we denied most of Chupp’s claims but
concluded that the elevation of both the burglary and robbery count to
Class A felonies was based on the same injuries and thus violated the
principles of double jeopardy. See Chupp v. State, 933 N.E.2d 586,*5
(Ind. Ct. App. 2010) (unpublished opinion). We vacated Chupp’s
conviction for robbery as a Class A felony and directed the post-
conviction court to enter judgment on the robbery conviction as a
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Class C felony and to resentence him accordingly. See id. at *10. On
January 20, 2011, the trial court modified Chupp’s Class A felony
robbery conviction to a Class C felony, vacated the fifty year sentence
and imposed an eight year sentence to run concurrent to the fifty year
sentence of the Class A felony burglary conviction, and consecutive to
the twenty year sentence for the Class B felony criminal confinement,
for an aggregate sentence of seventy years.
On June 13, 2012, Chupp filed a motion to correct erroneous sentence,
alleging that his conviction for both robbery, a Class C felony, and
criminal confinement, a Class B felony, violated the double jeopardy
doctrine. The trial court denied Chupp’s motion on the same day.
Chupp v. State, 49A05-1206-CR-328, slip op at 1-2 (Ind. Ct. App. December 20,
2012), trans. denied. We affirmed the denial of Chupp’s Motion to Correct
Erroneous Sentence.
[5] On August 13, 2014, Chupp filed a second Motion to Correct Erroneous
Sentence, which is the subject of the instant appeal. The trial court denied his
motion the same day.
Discussion and Decision1
[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. 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.
Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Claims that require
consideration of the proceedings are best addressed on direct appeal or as part
1
We note Chupp appears pro se. Pro se litigants are held to the same standards as licensed attorneys and are
required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
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of a petition for post-conviction relief if applicable. Id. When reviewing a
decision on a Motion to Correct Erroneous Sentence, we “defer to the trial
court’s factual findings and review such decision for an abuse of discretion.”
Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). 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. The trial court’s legal conclusions are
reviewed de novo. Id.[6] Chupp argues the court violated statutory law when ordering his sentences be
served consecutively, and the statute he cites is Ind. Code § 35-50-1-2(b). At the
time Chupp committed his crime, that statute provided:
If, after being arrested for one (1) crime, a person commits another
crime:
(1) Before the date the person is discharged from probation, parole, or
a term of imprisonment imposed for the first crime; or
(2) While the person is released:
(A) Upon the person’s own recognizance; or
(B) On bond;
the terms of imprisonment for the crimes shall be served consecutively,
regardless of the order in which the crimes are tried and sentences are
imposed.
[7] Chupp asserts that statute “called for concurrent sentences for any defendant
not On [sic] parole or probation or out on bond,” (Br. of Appellant at 5), and
because he was not on parole, probation, or bond when he committed his
crime, his Class B felony sentence could not be ordered served consecutive to
his two concurrent Class A felony sentences. The parties do not dispute that
Chupp was not on parole, probation, or out on bond when he was sentenced.
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[8] However, the version of Ind. Code § 35-50-1-2(a) in effect at the time of
Chupp’s crime stated: “Except as provided in subsection (b), the court shall
determine whether terms of imprisonment shall be served concurrently or
consecutively.” Pursuant to that subsection of the statute, trial courts had
discretion to order consecutive sentences for those whose sentences were not
required to be consecutive pursuant to subsection (b). Pearson v. State, 543
N.E.2d 1141, 1144 (Ind. Ct. App. 1989). As Chupp was not on parole,
probation, or out on bond, subsection (a) gave the court discretion to order
consecutive sentences. See id.[9] Neither we nor the trial court could review, pursuant to a Motion to Correct
Erroneous Sentence, whether the trial court had abused its discretion by
imposing consecutive sentences, as review of such issue would require looking
outside the face of the judgment to the facts and circumstances underlying the
court’s sentencing decision. See Robinson, 805 N.E.2d at 787 (appellate court
can only consider errors on the face of the sentence when reviewing a Motion
to Correct Erroneous Sentence).
[10] As Chupp’s argument regarding the court’s authority to order consecutive
sentences fails, the trial court did not abuse its discretion when it denied
Chupp’s Motion to Correct Erroneous Sentence. Accordingly, we affirm.
[11] Affirmed.
Barnes, J., and Pyle, J., concur.
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