Mark W. Gregory v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Feb 29 2016, 9:46 am
this 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 PRO SE ATTORNEYS FOR APPELLEE
Mark W. Gregory Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark W. Gregory, February 29, 2016
Appellant-Defendant, Court of Appeals Cause No.
48A02-1508-CR-1083
v.
Appeal from the Madison Circuit
Court
State of Indiana,
The Honorable Angela Warner
Appellee-Plaintiff. Sims, Judge
Trial Court Cause No.
48C01-9803-CF-49,
48C01-9809-CF-226
Barnes, Judge.
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Case Summary
[1] Mark Gregory appeals the denial of his motion to correct erroneous sentence.
We affirm.
Issue
[2] Gregory raises one issue, which we restate as whether the trial court properly
denied his motion to correct erroneous sentence.
Facts
In a previous appeal, we described the facts of this case as follows:
[In May 1998,] Mark Gregory pled guilty to sixteen felony
charges and was sentenced to a total of eighty years, with fifty-
five years in prison and twenty-five suspended to probation.
Three years later, he was convicted of escape and given a
consecutive eight-year sentence, with four years[] in prison and
four years[] probation. [In July 2009], he requested that his
sentence be modified, and the trial court granted his request,
ordering him to be released on probation for the balance of his
term. Less than two months after his release, he was charged
with burglary and theft in a neighboring county. As a result, the
trial court revoked Gregory's probation and ordered that he serve
his remaining term of approximately sixty-five years in prison.
[3] Gregory v. State, No. 48A02-1009-CR-984, slip op. at 1 (Ind. Ct. App. April 8,
2011), trans. denied. The amended abstracts of judgment that the trial court
issued when it modified Gregory’s sentences simply state that each count is
“MODIFIED TO PROBATION FOR BALANCE OF SENTENCE.” App.
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pp. 55-58. The abstracts do not specify whether Gregory was required to
complete his probationary periods concurrently or consecutively.
[4] On June 8, 2015, Gregory filed a motion to correct erroneous sentence. 1 On
July 7, 2015, the trial court denied his motion. Gregory now appeals.
Analysis
[5] Gregory argues the trial court erred by denying his motion to correct erroneous
sentence. In essence, he seems to contend the trial court did not have the
authority to modify the sentence imposed for his escape conviction because he
had not yet begun serving that sentence at the time of the modification.
[6] Indiana Code Section 35-38-1-15 provides that a defendant may file a 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.
1
Gregory has also challenged his modified sentences on direct appeal and in a petition for post-conviction
relief, the denial of which he also appealed. This Court affirmed the trial court in both cases. See Gregory v.
State, No. 48A02-1009-CR-984 (Ind. Ct. App. Apr. 8, 2011), trans. denied, and Gregory v. State, No. 48A02-
1302-PC-198 (Ind. Ct. App. Oct. 4, 2013), trans. denied.
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[7] We “defer to the trial court’s factual finding” on a motion to correct erroneous
sentence and “review its decision only for abuse of discretion.” Fry v. State, 939
N.E.2d 687, 689 (Ind. Ct. App. 2010) (quotations omitted) (citation omitted).
An abuse of discretion occurs when the trial court’s decision is against the logic
and effect of the facts and circumstances before it. Davis v. State, 978 N.E.2d
470, 472 (Ind. Ct. App. 2012).
[8] Sentencing errors are best presented to the trial court in a motion to correct
error under Indiana Trial Rule 59 or on direct appeal. Robinson v. State, 805
N.E.2d 783, 786 (Ind. 2004). Thereafter, a defendant may seek relief for certain
claims under the Indiana Post-Conviction Rules. Id. A motion to correct
erroneous sentence is an alternate remedy; however, that remedy is reserved for
correcting only those sentencing errors that are clear from the face of the
judgment imposing the sentence in light of the statutory authority. Id. “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. at 787. “As to
sentencing claims not facially apparent, the motion to correct sentence is an
improper remedy. Such claims may be raised only on direct appeal and, where
appropriate, by post-conviction proceedings.” Id.
[9] Gregory urges us to “review information outside the sentencing orders . . .
because they are extremely vague.” Appellant’s Br. p. 8. He effectively
concedes the error he raises is not “facially apparent.” See Robinson, 805
N.E.2d at 787. Citing Jones v. State, 544 N.E.2d 492 (Ind. 1989), Gregory
asserts, “The Court has in certain rare circumstances chosen to look at
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information outside the sentencing order to properly address the merits of a
claim . . . .” Appellant’s Br. p. 8. Robinson acknowledged several cases,
including Jones, “may not have rigorously applied the ‘erroneous on its face’
standard,” but held, “the ‘facially erroneous’ prerequisite should henceforth be
strictly applied, notwithstanding Jones . . . .” Robinson, 805 N.E.2d at 786. We,
decline Gregory’s request that we review extraneous information. The trial
court, also, was prohibited from doing so.
[10] Gregory claims the trial court lacked the authority to modify his sentence for
escape because he had not begun serving that sentence. The July 6 and July 8,
2009 abstracts of judgment modifying Gregory’s 1998 and 2001 sentences
contain no details related to those sentences. There is no indication whether he
was serving his sentences consecutively or concurrently or which he began
serving first. To obtain this information, the trial court would have needed to
review, at a minimum, the original sentencing orders. Thus, there is no error
apparent on the face of the 2009 modification orders, and a motion to correct
erroneous sentence is not the appropriate remedy for the errors Gregory claims.
Gregory has not established that the trial court abused its discretion by denying
his motion.2
2
Because we conclude a motion to correct erroneous sentence is not the proper vehicle for addressing
Gregory’s claim, we need not address the State’s alternative argument.
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Conclusion
[11] The trial court did not abuse its discretion in denying Gregory’s motion to
correct erroneous sentence. We affirm.
[12] Affirmed.
Robb, J., and Altice, J., concur.
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