Brian Woodring v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 27 2017, 10:55 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Brian Woodring Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Woodring, April 27, 2017
Appellant-Petitioner, Court of Appeals Case No.
55A01-1602-PC-327
v. Appeal from the Morgan Superior
Court
State of Indiana, The Honorable Clark Rogers,
Appellee-Respondent. Special Judge
Trial Court Cause No.
55D03-1110-PC-1273
Najam, Judge.
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Statement of the Case
[1] Brian Woodring appeals the post-conviction court’s denial of his petition for
post-conviction relief. Woodring raises three issues for our review, which we
consolidate and restate as two issues:
1. Whether the State breached the plea agreement regarding
Woodring’s Sexually Violent Predator (“SVP”) status and
his parole.
2. Whether his sentence is illegal.
[2] We affirm.
Facts and Procedural History
[3] On June 17, 2010, Woodring pleaded guilty to child molesting, as a Class C
felony; and obscene performance, as a Class D felony; and he admitted to being
a repeat sexual offender. The plea agreement provided that the trial court
would sentence Woodring to consecutive sentences of eight years, with seven
and one-half years executed and six months on non-reporting probation for
child molesting; three years executed for obscene performance; and a ten-year
enhancement for being a repeat sexual offender. Woodring’s plea agreement
stated that the aggregate twenty-one-year sentence would run consecutive to his
sentences stemming from convictions in Johnson County.
[4] On October 6, 2011, Woodring filed a petition for post-conviction relief, which
he amended on June 4, 2015. In his amended petition, Woodring alleged in
relevant part that the State had breached the plea agreement and that his
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sentence was illegal. Following a hearing, the court denied the petition. This
appeal ensued.
Discussion and Decision
Standard of Review
[5] Woodring appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review is clear:
The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
(citations omitted). When appealing the denial of post-
conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. To prevail on appeal
from the denial of post-conviction relief, a petitioner must show
that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction
court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Further, the post-conviction court in this case made findings of
fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6). Although we do not defer to the post-
conviction court’s legal conclusions, “[a] post-conviction court’s
findings and judgment will be reversed only upon a showing of
clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to
Campbell).
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Issue One: Breach of Plea Agreement
[6] Woodring contends that the State breached the plea agreement when it did not
make certain that the trial court’s sentencing order and abstract of judgment
included statements that he was not an SVP and that he would not be placed on
parole because he “is required to leave the country.” Appellant’s Br. at 20. The
post-conviction court concluded that Woodring’s allegations did “not fall into
any of the categories enumerated” in Post-Conviction Rule 1. Appellant’s App.
Vol. III at 103. On appeal, while Woodring states that it is “well established
[he] may bring a breach of agreement [claim] under [Indiana Post-Conviction
Rule] 1,” he does not direct us to any authority in support of that contention.
Id. at 11.
[7] As this court has held,
the question of subject matter jurisdiction entails a determination
of whether a court has jurisdiction over the general class of
actions to which a particular case belongs. K.S. v. State, 849
N.E.2d 538, 540 (Ind. 2006); see also M.B. v. State, 815 N.E.2d
210, 214 (Ind. Ct. App. 2004). The only inquiry relevant to a
determination of whether the post-conviction court had subject
matter jurisdiction is whether the kind of claim advanced by a
petitioner in the post-conviction court falls within the general
scope of authority conferred upon that court by constitution or
statute. In re K.B., 793 N.E.2d 1191, 1199 n.6 (Ind. Ct. App.
2003). Moreover, subject matter jurisdiction cannot be waived
and courts are required to consider the issue sua sponte if it is not
properly raised by the party challenging jurisdiction. See Stewart
v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d 542, 544 (Ind.
Ct. App. 2002); see also B.D.T. v. State, 738 N.E.2d 1066, 1068
(Ind. Ct. App. 2000).
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Post-conviction relief is a product of the Indiana Supreme Court
and is, therefore, entirely defined in scope by the post-conviction
rules it has adopted. Samuels v. State, 849 N.E.2d 689, 691 (Ind.
Ct. App. 2006). Indiana Post-Conviction Rule 1(1)(a) provides
that post-conviction relief is only available if the petitioner
claims:
(1) that the conviction or sentence was in violation of
the Constitution of the United States or the
constitution or laws of this State;
(2) that the court was without jurisdiction to impose
sentence;
(3) that the sentence exceeds the maximum
authorized by law, or is otherwise erroneous;
(4) that there exists evidence of material facts, not
previously presented and heard, that requires
vacation of the conviction or sentence in the interest
of justice;
(5) that his sentence has expired, his probation,
parole or conditional release unlawfully revoked, or
he is otherwise unlawfully held in custody or other
restraint;
(6) that the conviction or sentence is otherwise
subject to collateral attack upon any ground of
alleged error heretofore available under any common
law, statutory or other writ, motion, petition,
proceeding, or remedy[.]
Members v. State, 851 N.E.2d 979, 981-82 (Ind. Ct. App. 2006).
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[8] On appeal, Woodring does not identify the subsection of Post-Conviction Rule
1 that applies to his breach of plea agreement claims. And Woodring does not
ask that his plea be set aside. See State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013)
(stating motion to set aside guilty plea is treated as a petition for post-conviction
relief). Rather, Woodring requests only that we order the trial court to correct
the sentencing order and abstract of judgment to reflect both that he is not an
SVP1 and that he is required to leave the country. We hold that the post-
conviction court did not have subject matter jurisdiction to consider
Woodring’s breach of plea agreement claims, and we do not address them here.
See Members, 851 N.E.2d at 981-82.
Issue Two: Illegal Sentence
[9] Woodring also contends that his sentence is illegal. In particular, Woodring
maintains that, under Indiana Code Section 35-50-2-14(e), the enhancement for
his repeat sexual offender status was limited to a maximum of four years.
Thus, he asserts that the ten-year enhancement included in his plea agreement
is illegal and cannot stand. Assuming for the purposes of this appeal that his
sentence is illegal, the post-conviction court correctly declined to revise
Woodring’s sentence.
1
Woodring concedes that he is an SVP by operation of Indiana Code Section 35-38-1-7.5. Assuming he is
correct, we note that changes to the sentencing order and abstract of judgment would not affect his SVP
status. See, e.g., Stockert v. State, 44 N.E.3d 78, 82 (Ind. Ct. App. 2015) (holding that, in light of defendant’s
SVP status by operation of law, neither plea agreement nor trial court could alter lifetime reporting period for
SVPs), trans. denied.
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[10] Woodring acknowledges that “a defendant may not enter a plea agreement
calling for an illegal sentence, benefit from that sentence, and then later
complain that it was an illegal sentence.” Appellant’s Br. at 21-22 (quoting Lee
v. State, 816 N.E.2d 35, 40 (Ind. 2004)). But Woodring contends that, because
he did not know that the sentence was illegal when he entered into the plea
agreement and thought that the ten-year enhancement was mandatory, we must
reverse. In support of that contention, Woodring cites to this court’s vacated
opinion in Russell v. State, 11 N.E.3d 938 (Ind. Ct. App. 2014), and our opinion
in Primmer v. State, 857 N.E.2d 11 (Ind. Ct. App. 2006), trans. denied.
[11] First, not only was Russell vacated, but our supreme court’s opinion on transfer
does not support Woodring’s contention on this issue. See Russell v. State, 34
N.E.3d 1223, 1228 (Ind. 2015). Second, Primmer likewise does not support
Woodring’s contention. In Primmer, “although the State argued for, and the
trial court imposed, an illegal sentence, the plea agreement itself did not call for an
illegal sentence.” 857 N.E.2d at 18 (emphasis added). Here, Woodring agreed to
the ten-year enhancement in his plea agreement, and he has benefited as a result
of the illegal sentence.2
[12] Further, Woodring makes no claim that his guilty plea should be set aside.
Rather, Woodring asks that we reduce his sentence. By agreeing to plead guilty
to the C and D felonies in exchange for the State’s dismissal of an A felony,
2
In exchange for his plea, the State dismissed a Class A felony child molesting charge.
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Woodring reduced his penal exposure by decades. See Lee, 816 N.E.2d at 39-
40. Woodring does not contend that he would have taken his chances and gone
to trial had he known that his sentence was illegal. See id. at 40. The post-
conviction court did not err when it denied his petition on this issue.
[13] Affirmed.
Riley, J., and Bradford, J., concur.
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