Stephen R. Harvey, Jr. v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Sep 12 2013, 5:34 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:
STEPHEN R. HARVEY, JR. GREGORY F. ZOELLER
Pendleton Correctional Facility Attorney General of Indiana
Pendleton, Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEPHEN R. HARVEY, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1302-CR-44
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-0312-FB-243
September 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Stephen R. Harvey, Jr., pled guilty to class B felony robbery, class B felony criminal
confinement, and to being a habitual offender. The trial court sentenced Harvey to twenty
years for robbery enhanced by twenty years on the habitual offender finding, and ten years
for criminal confinement. The court ordered the sentences to be served consecutively for an
aggregate sentence of fifty years. Thereafter, Harvey filed several pro se motions
challenging the validity of his sentence, each of which was denied by the trial court. He now
appeals only the trial court’s denial of his motion for concurrent sentencing. The sole issue
presented is whether the trial court abused its discretion in denying that motion.
Harvey’s motion for concurrent sentencing was essentially a motion to correct
erroneous sentence. We review a trial court’s ruling on a motion to correct erroneous
sentence only for an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App.
2012). “An abuse of discretion occurs where the trial court’s decision is against the logic and
effect of the facts and circumstances before it.” Id.Indiana Code Section 35-38-1-15 states,
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.
“The purpose of the statute is 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) (citation and internal quotation marks omitted). A motion to
correct erroneous sentence may properly be used only “to correct sentencing errors that are
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clear from the face of the judgment imposing the sentence in light of statutory authority.
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. A motion to correct erroneous
sentence is an improper remedy for any sentencing claims that are not facially apparent; such
claims may be raised only on direct appeal, and by post-conviction proceedings where
appropriate. Id.Harvey argues that the trial court’s imposition of consecutive sentences was
inappropriate because his convictions arose out of a single episode of criminal conduct
pursuant to Indiana Code Section 35-50-1-2. That statute provides in relevant part that the
trial court may order terms of imprisonment to be served consecutively; however, except for
crimes of violence, the total of the consecutive terms of imprisonment to which the defendant
is sentenced for felony convictions “arising out of an episode of criminal conduct shall not
exceed the advisory sentence for a felony which is one (1) class higher than the most serious
of the felonies for which the person has been convicted.” Ind. Code § 35-50-1-2(c). First,
we note that one of Harvey’s convictions was for class B felony robbery, which is
specifically delineated as a “crime of violence” pursuant to Indiana Code § 35-50-1-2(a).
Our supreme court has held that the statutory limitation on consecutive sentencing does not
apply to consecutive sentencing “among crimes of violence” or “between a crime of violence
and those that are not crimes of violence.” Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000).
Moreover, regarding whether his convictions arose out of a single episode of criminal
conduct, Harvey seeks review of the factual basis underlying his guilty plea to his offenses,
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which necessarily involves matters not apparent from the face of the trial court’s sentencing
order. Simply put, the sentencing judgment entered here is not erroneous on its face and,
consequently, Harvey has sought an improper remedy for his claim. Accordingly, the trial
court did not abuse its discretion when it denied his motion.
Affirmed.
BARNES, J., and PYLE, J., concur.
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