David Streeter v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision
Oct 02 2015, 9:02 am
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 PRO SE ATTORNEYS FOR APPELLEE
David Streeter Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Streeter, October 2, 2015
Appellant-Defendant, Court of Appeals Case No.
44A03-1408-CR-291
v. Appeal from the LaGrange
Superior Court;
State of Indiana, The Honorable George E. Brown,
Judge;
Appellee-Plaintiff. 44D01-0011-CF-49
May, Judge.
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[1] David Streeter appeals the denial of his motion to correct erroneous sentence.
Because analysis of the alleged error required looking beyond the face of the
sentencing order to determine the facts underlying his convictions, his claim
could not be addressed in the context of a motion to correct erroneous sentence.
[2] We therefore affirm.
Facts and Procedural History
[3] For acts that occurred between May and September of 1999, the State charged
Streeter with one count of Class A felony child molesting, 1 two counts of Class
C felony child molesting, 2 and an allegation he is a repeat sexual offender. 3
Streeter entered a guilty plea to all four allegations, and the court imposed a
sixty-year sentence. The court ordered Streeter to serve fifty years for the Class
A felony consecutive to ten years for being a repeat offender, with two eight-
year sentences for the Class C felonies to be served concurrent to the rest of the
sentence.
[4] Streeter filed a motion to correct erroneous sentence. The court denied that
motion in an order that explained only: “After considering the evidence and
1
Ind. Code § 35-42-4-3.
2
Ind. Code § 35-42-4-3.
3
Ind. Code § 35-50-2-14.
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argument presented at the hearing, the Court now denies the Defendant’s
motion to correct erroneous sentence.” (App. at 136.)
Discussion and Decision
[5] A motion to correct erroneous sentence derives from Indiana Code § 35-38-1-
15, which 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.
[6] Such a motion is intended “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)). However, it is appropriate for use
“only when the sentence is ‘erroneous on its face,’” id. at 786, and “the ‘facially
erroneous’ prerequisite should . . . be strictly applied.” Id. at 787. If claims of
sentencing errors require consideration of matters other than the sentencing
judgment itself, they should be raised on direct appeal or in a petition for post-
conviction relief. Id.[7] A ruling on a motion to correct erroneous sentence is appealed by “normal
appellate procedures.” Id. at 786. We review the trial court’s decision for an
abuse of discretion, which occurs when the “court’s decision is against the logic
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and effect of the facts and circumstances before it.” Fry v. State, 939 N.E.2d
687, 689 (Ind. Ct. App. 2010).
[8] Streeter’s motion to correct erroneous sentence asserted his multiple convictions
of child molesting “violate the prohibition against double jeopardy,” because
they are based on the same evidence. (App. at 115-16.) In support thereof he
cites the transcript and the circumstances under which he entered his guilty
plea. Thus, he asked the trial court to look at the proceedings to determine
whether his sentence is erroneous. It could not. See Fry, 939 N.E.2d at 690(“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.”).
[9] Nor do we see any double jeopardy violation apparent on the face of his
sentencing order. That document provides, in relevant part:
The Court enters JUDGMENTS OF CONVICTION for
the offense CHILD MOLESTING, a Class A Felony, as
charged in Count I; CHILD MOLESTING, a Class C Felony,
as charged in Count II; CHILD MOLESTING, a Class C
Felony, as charged in Count III; and REPEAT SEXUAL
OFFENDER.
Argument heard as to sentencing. The Court sentences
the defendant as follows:
COUNT I – That he pay a fine to the State of Indiana in the
amount of $1.00 plus court costs of $129.00 plus a child abuse
prevention fee of $100.00; and that he serve fifty (50) years at the
Indiana Department of Correction.
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COUNT II – That he pay a fine to the State of Indiana in the
amount of $1.00; and that he serve eight (8) years at the Indiana
Department of Correction, concurrent with Count I.
COUNT III – That he pay a fine to the State of Indiana in the
amount of $1.00; and that he serve eight (8) years at the Indiana
Department of Correction, concurrent with Count I and II.
COUNT IV – That he serve ten (10) years at the Indiana
Department of Correction, consecutive to Counts I, II, & III.
[10] (App. at 73) (emphases in original). As no double jeopardy violation is
apparent from the language in that document, Streeter was not entitled to relief.
and the court did not abuse its discretion by denying his motion.
Conclusion
[11] Because Streeter’s argument required the court to look past the face of the
sentencing order, he could not obtain relief by filing a motion to correct
erroneous sentence. Nor was any double jeopardy violation apparent from the
face of his sentencing order. We therefore affirm the trial court’s denial of his
motion.
[12] Affirmed.
Crone, J., and Bradford, J., concur.
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