Edwin D. Calligan v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Jul 23 2012, 9:01 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
court of appeals and
case. tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
EDWIN D. CALLIGAN GREGORY F. ZOELLER
Michigan City, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EDWIN D. CALLIGAN, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1108-CR-400
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy A. Davis, Judge
Cause No. 02D04-9901-CF-1
July 23, 2012
MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION
BROWN, Judge
Edwin D. Calligan, pro se, petitions for rehearing following our memorandum
decision affirming the trial court’s denial of his motion to correct erroneous sentence.
Calligan raises two issues which we consolidate and restate as whether this court erred in
affirming the trial court’s denial of his motion to correct erroneous sentence. We grant
rehearing and affirm our original decision.
On appeal, Calligan argued that the trial court erred in ordering that his sentences
be served consecutive with each other because there were no aggravating circumstances
specified in the sentencing order. In our initial opinion, we held that we could not say
based upon the court’s sentencing order alone that the trial court did not find any
aggravating circumstances. Calligan v. State, No. 02A03-1108-CR-400, slip op. at 7
(Ind. Ct. App. February 29, 2012). We pointed out that “[t]he Indiana Supreme Court has
held that ‘[t]he approach employed by Indiana appellate courts in reviewing sentences in
non-capital cases is to examine both the written and oral sentencing statements to discern
the findings of the trial court.’” Id. (quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind.
2007)). We held that resolution of the issue raised by Calligan’s motion to correct
erroneous sentence “necessarily requires consideration of factors outside of the face of
the judgment. Specifically, to determine whether the trial court identified an aggravating
circumstance to support the imposition of consecutive sentences, it is necessary to
examine the transcript from the sentencing hearing.” Id. at 7-8. We also noted that the
record did not contain a transcript of the sentencing hearing. Id. at 8 n.2.
In his petition for rehearing, Calligan argues that he was denied a full and fair
review of his appeal after this court held that an appellate court could examine both the
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written sentencing statement and the oral statements in reviewing a sentence, found that
the record did not contain a transcript of the sentencing hearing when in fact a copy of the
transcript was a part of the record on appeal, and failed to examine the sentencing
transcript. Calligan contends that “[i]f upon rehearing, it is not deemed that the Court
applied the wrong standard of review to Calligan’s claim, he respectfully requests that
this Court, in its decision, clearly and concisely set forth which standard of review it
applied.” Petition for Rehearing at 3.
With respect to the transcript of the sentencing hearing, we observe that while
Calligan’s appendix does not contain such a transcript and the table of contents in his
brief does not indicate that he included a transcript, his appellant’s brief does indeed
include a copy of the transcript of the sentencing hearing. Nevertheless, the inclusion of
such a transcript does not alter the outcome because the transcript does not constitute the
formal judgment of conviction. To the extent that Calligan claims that this court held that
sentencing transcripts could be examined to determine a sentence and then improperly
failed to examine the sentencing transcript, we disagree. This court cited McElroy v.
State, 865 N.E.2d 584, 589 (Ind. 2007), Corbett v. State, 764 N.E.2d 622, 631 (Ind.
2002), and Strong v. State, 538 N.E.2d 924, 929 (Ind. 1989), for the proposition that
appellate courts can examine both a trial court’s written and oral sentencing statements.
Slip op. at 7. However, McElroy, Corbett, and Strong all addressed a direct appeal and
not a motion to correct erroneous sentence. As mentioned in our initial opinion, a motion
to correct erroneous sentence is available only when the sentence is erroneous on its face.
Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). “[A] motion to
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correct an erroneous sentence may only arise out of information contained on the formal
judgment of conviction . . . .” Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008). Claims
that require consideration of the proceedings before, during, or after trial may not be
presented by way of a motion to correct erroneous sentence. See Robinson, 805 N.E.2d
at 787. “Use of the statutory motion to correct sentence should thus be narrowly confined
to claims apparent from the face of the sentencing judgment, and the ‘facially erroneous’
prerequisite should . . . be strictly applied . . . .” Id. Because resolution of the issue
requires consideration of factors outside of the face of the judgment, we cannot say that
the trial court abused its discretion by denying Calligan’s motion to correct erroneous
sentence. Lastly, to the extent that Calligan requests that this court set forth the standard
of review, we observe that our initial opinion stated the standard as follows:
We review a trial court’s decision on a motion to correct erroneous
sentence only for an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689
(Ind. Ct. App. 2010). An abuse of discretion occurs when the trial court’s
decision is against the logic and effect of the facts and circumstances before
it. Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999).
Slip op. at 4.
For the foregoing reasons, we grant rehearing and reaffirm our previous decision.
MAY, J., and CRONE, J., concur.
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