Samuel L. Wait v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 30 2020, 8:20 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Samuel L. Wait Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samuel L. Wait, October 30, 2020
Appellant, Court of Appeals Case No.
20A-CR-1188
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee. Judge
Trial Court Cause No.
20D03-0708-FA-55
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1188 | October 30, 2020 Page 1 of 5
Case Summary
[1] Samuel L. Wait (“Wait”) appeals, pro se, the trial court’s order denying his
motion to correct erroneous sentence.
[2] We affirm.
Issues
[3] Wait raises three issues on appeal which we consolidate and restate as follows:
I. Whether the trial court erred when it denied his motion to
correct sentence as untimely.
II. Whether he may raise his claims regarding his repeat
sexual offender and credit restricted felon statuses in a
motion to correct sentence.
Facts and Procedural History
[4] In 2009, a jury found Wait guilty of four counts of Class A felony child
molesting and Wait admitted that he is a habitual offender and repeat sexual
offender. The trial court sentenced Wait to an aggregate term of 110 years
imprisonment. Wait appealed his convictions and the order that he serve
consecutive sentences. We affirmed Wait’s convictions and sentence. Wait v.
State, No. 20A03-0904-CR-135, 2009 WL 3199127 (Ind. Ct. App. October 7,
2009). Wait subsequently litigated a petition for post-conviction relief in which
he alleged ineffective assistance of counsel. The post-conviction court denied
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the petition and we affirmed. Wait v. State, No. 20A03-1512-PC-2304, 2017
WL 127714 (Ind. Ct. App. January 13, 2017), trans. denied.
[5] On April 27, 2020, Wait filed a motion to correct erroneous sentence and
supporting memorandum in which he alleged, on ex post facto grounds, that he
could not be sentenced as a repeat sexual offender or be found to be a credit
restricted felon. On May 27, 2020, the trial court denied Wait’s motion on the
grounds that it was “not timely filed.” App. at 21. This appeal ensued.
Discussion and Decision
[6] Wait appeals the denial of his motion to correct erroneous sentence. We review
such a ruling for an abuse of discretion. E.g., Woodcox v. State, 30 N.E.3d 748,
750 (Ind. Ct. App. 2015). An abuse of discretion occurs when the decision is
against the logic and effect of the facts and circumstances before the trial court.
Id. “While we defer to the trial court’s factual determinations, we review legal
conclusions de novo.” Id.
[7] As the State admits, the trial court’s conclusion that Wait’s motion to correct
erroneous sentence was untimely was incorrect. Rather, such a motion may be
filed at any time. See Ben-Yisrayl v. State, 908 N.E.2d 1223, 1227 (Ind. Ct. App.
2009) (noting “a sentence that exceeds statutory authority constitutes
fundamental error and is subject to correction at any time”), trans. denied.
[8] Nevertheless, the denial of Wait’s motion was appropriate because his claims
were not properly brought in a statutory motion to correct sentence. Indiana
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Code Section 35-38-1-15 provides that a convicted person may file a motion to
correct an erroneous sentence to remedy a defect in a sentencing order. But use
of such a statutory motion is
“narrowly confined” to claims apparent from the face of the
sentencing judgment. [Robinson v. State, 805 N.E.2d 783,] 787
[(Ind. 2004)]. As to sentencing claims not facially apparent, the
motion to correct sentence is an improper remedy. Id. A
sentencing error that requires examination of matters beyond the
face of the sentencing judgment is better suited for resolution on
direct appeal or through post-conviction relief. Woodcox[ v. State],
30 N.E.3d [748,] 751 [(Ind. Ct. App. 2015)].
Hobbs v. State, 71 N.E.3d 46, 49 (Ind. Ct. App. 2017), trans. denied. Thus,
“[c]laims that require consideration of the proceedings before, during, or after
trial may not be presented by way of a motion to correct sentence.” Robinson,
805 N.E.2d at 787; see also, e.g., Hobbs, 71 N.E.3d at 49 (holding motion to
correct erroneous sentence was impermissible remedy where court could not
“resolve Hobbs’s claims without looking past the face of the sentencing order to
the evidence presented at Hobbs’s original trial”).
[9] Wait’s claim that he was erroneously found to be a repeat sexual offender
requires consideration of his prior crimes. See Ind. Code § 35-50-2-14 (2009).
His claim that the credit restricted felon statute, Indiana Code Section 35-41-1-
5.5(1) (2008), was erroneously applied to him requires consideration of the
dates when his crimes were committed. That is, Wait’s claims are not facially
apparent but require examination of events before trial, i.e., matters beyond the
sentencing judgment. Thus, his claims were not properly brought in a motion
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to correct erroneous sentence under Indiana Code Section 35-38-1-15.
Robinson, 805 N.E.2d at 787. Rather, if Wait wishes to pursue these claims, he
must do so by seeking permission to bring a successive petition for post-
conviction relief pursuant to Rule 1(12) of the Indiana Rules of Post-Conviction
Remedies. See Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008) (citing
Robinson, 805 N.E.2d at 787) (“[A]ll manner of claims of sentencing errors
(other than those that do not require consideration of matters outside the face of
the sentencing judgment), are addressed via post-conviction relief
proceedings.”).
[10] Affirmed.
Vaidik, J., and Weissmann, J., concur.
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