Kevin M. Barber v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jun 10 2014, 9:16 am
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:
KEVIN M. BARBER GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN M. BARBER, )
)
Appellant-Defendant, )
)
vs. ) No. 53A01-1310-CR-464
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Marc R. Kellams, Judge
Cause No. 53C02-1208-FC-788
June 10, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Kevin M. Barber appeals from the denial of his motion to correct erroneous sentence
contending that the trial court erred by denying his motion and that his sentence is
inappropriate. Concluding that Barber failed to establish that his sentence is erroneous on
its face and that he has waived his challenge of the appropriateness of his sentence, we
affirm.
FACTS AND PROCEDURAL HISTORY
Barber pleaded guilty to one count of child molesting as a Class C felony (“Count
I”), one count of performing sexual conduct in the presence of a minor as a Class D felony
(“Count II”), and one count of dissemination of matter harmful to minors as a Class D
felony (“Count III”). The trial court sentenced Barber to eight years imprisonment in the
Indiana Department of Correction for his conviction under Count I, two years suspended
to probation for his conviction under Count II, and two years suspended to probation for
his conviction under Count III. The trial court ordered the sentence for Count I to run
consecutively to Count II and Count III, which were to be served concurrently.
On August 1, 2013, Barber filed a petition for permission to file a belated notice of
appeal. The trial court denied Barber’s petition on August 5, 2013, noting that Barber
“entered pleas of guilty and was sentenced pursuant to a Plea and Sentencing Agreement
and thereby waived his right to appeal.” Appellant’s App. at 12. Barber did not appeal the
trial court’s denial of his petition.
On October 11, 2013, Barber filed a motion to correct erroneous sentence in which
he alleged as follows: 1) he was entitled to relief under Indiana Code section 35-38-1-15;
2) the sentencing court was obligated to correct a sentence for clear facial error; 3) the trial
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court has a duty to correct erroneous sentences; 4) the trial court sentenced Barber to the
maximum sentence for Count I; 5) the court sentenced Barber to a sentence above the
advisory sentence for Counts II and III; 6) maximum sentences are appropriate for the
worst offenders; and 7) Barber’s crimes were not the worst of the worst and the trial court’s
imposition of a maximum sentence was not warranted given Barber’s character. The trial
court denied Barber’s motion, observing that Barber “signed a plea and sentencing
agreement on November 14, 2012, agreeing to the sentence he received.” Id. at 8. Barber
now appeals.
DISCUSSION AND DECISION
When reviewing a trial court’s decision to deny a motion to correct an 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) (citing Brattain v.
State, 777 N.E.2d 774, 776 (Ind. Ct. App. 2002)). 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 of review. Id.
Indiana Code section 35-38-1-15 provides as follows:
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.
A motion to correct erroneous sentence is an appropriate remedy only when the sentence
is erroneous on its face. Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004). “When claims
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of sentencing errors require consideration of matters outside the face of the sentencing
judgment, they are best addressed promptly on direct appeal and thereafter via post-
conviction relief proceedings where applicable.” Id. at 787. “Claims that require
consideration of proceedings before, during, or after trial may not be presented by way of
a motion to correct sentence.” Id. However, a motion to correct sentence could be used to
correct errors such as “illegal sentences in violation of express statutory authority or an
erroneous interpretation of a penalty provision of a statute.” Id. at 786.
Here, Barber acknowledges that his sentences for Counts I, II, and III were within
the statutory guidelines. He challenges them nonetheless on grounds implicating Indiana
Appellate Rule 7(B). “[A] request for sentence revision under Appellate Rule (7)(B) is not
truly a claim of sentencing error. Rather, it is a request for [the] court to exercise its
constitutional authority to revise a lawfully entered sentence.” Kimbrough v. State, 979
N.E.2d 625, 630 (Ind. 2012) (quoting Kimbrough v. State, No. 45A04-1106-CR-328, slip
op. at 14 n.3 (Ind. Ct. App. Mar. 21, 2012), Mathias, J. dissenting). The face of Barber’s
sentencing order does not disclose the nature of his offenses or his character, so we would
be unable to review such a claim even if it were properly before us. Barber has failed to
show how his sentence is improper on its face. Since a motion to correct an erroneous
sentence is an improper vehicle by which to present an inappropriateness claim, we
conclude that the trial court did not abuse its discretion by denying Barber’s motion on that
additional ground. By a separate order, we grant the State’s motion to dismiss Barber’s
claims that his sentence is inappropriate. Affirmed.
MAY, J., and BAILEY, J., concur.
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