Kevin L. Govan v. State of Indiana

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Jun 22 2012, 9:10 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
KEVIN L. GOVAN GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN L. GOVAN, )
)
Appellant-Defendant, )
)
vs. ) No. 02A05-1111-CR-663
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-0411-FB-196
June 22, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Kevin Govan appeals the denial of his motion to correct erroneous sentence. We
affirm.
FACTS AND PROCEDURAL HISTORY
On June 24, 2005, the trial court sentenced Govan to an aggregate sentence of forty
years after a jury determined he committed Class B felony unlawful possession of a firearm
by a serious violent felon,1 Class D felony theft,2 and two counts of Class B felony criminal
confinement.3 Govan appealed, and we affirmed his convictions. Govan v. State, 02A04-
0510-CR-577 (Ind. Ct. App. April 20, 2006), trans. denied.
On October 31, 2011, Govan filed a motion to correct erroneous sentence. On
November 2, the trial court denied his motion without a hearing.
DISCUSSION AND DECISION
A motion to correct erroneous sentence may be filed to address a sentence that is
“erroneous on its face.” Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004). Claims that
require consideration of the proceedings before, during, or after the trial may not be
presented in a motion to correct erroneous sentence. Id. at 787. Such claims are best
addressed on direct appeal or as part of a petition for post-conviction relief if applicable. Id.A trial court’s ruling on a motion to correct an erroneous sentence is subject to normal
appellate procedures. Id. at 786.
1
Ind. Code § 35-47-4-7.
2
Ind. Code § 35-43-4-2.
3
Ind. Code § 35-42-3-3.
2
Govan alleged his sentence was erroneous on its face because:
a. The consecutive sentences of the two (2) criminal confinements
violated Govan’s 5th Amendment Federal Constitutional right which
protects against multiple punishments for the same offense.
b. The trial courts [sic] imposition of consecutive sentences resulting in an
aggregate 40 year sentence of [sic] the two (2) criminal confinements
violation [sic] I.C. § 35-50-1-2(c) (1995 Supp.) which provides that
except for crimes of violence, the maximum term of consecutive
sentences arising from the same episode of criminal conduct shall not
exceed the presumption [sic] (advisory) sentence for the next higher
class of felony for which the person has been convicted.
(App. at 38-9.) On appeal, Govan presents four issues:
A. Whether the consecutive sentences of the two criminal confinements
violate Govan’s 5th amendment Federal Constitutional, and Indiana
Constitution Art.1 § 14, right against double jeopardy, which both
protects against multiple punishment for the same offense?
B. Whether the trial court’s imposition of consecutive sentences resulting
in an aggregate 40 year sentence of the two criminal confinements
violate [sic] Indiana Code § 35-50-1-2(c) (1995 Supp.) which provides
that: [sic] except for “crimes of violence,” the maximum term of
consecutive sentencing arising from the same episode of criminal
conduct shall not exceed the presumptive sentence for the next higher
class of felony for which the person has been convicted, and the
enhancement of I.C. § 35-50-2-11 was improperly attached?
C. Whether the trial court considered improper aggravator’s [sic] for
purposes of consecutive sentencing, and over looked mitigator’s [sic]
that is [sic] apart [sic] of the record?
D. Whether Govan’s sentence is inappropriate in light of the nature of the
offense and the character of the offender?
(Br. of Appellant at 1.)
We note Govan appears pro se. Pro se litigants are held to the same standards as
licensed attorneys, and are required to follow procedural rules. Evans v. State, 809 N.E.2d
338, 344 (Ind. Ct. App. 2004), trans. denied. Govan did not present his arguments regarding
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the handgun enhancement pursuant to Ind. Code § 35-50-2-11, the aggravators and mitigators
used to determine his sentence, and the appropriateness of his sentence to the trial court in his
motion to correct erroneous sentence. An issue may not be raised for the first time on appeal.
Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2001), trans. denied. He therefore has
waived those arguments.
The only issue remaining is the imposition of consecutive sentences for Govan’s two
convictions of criminal confinement. Govan argues the consecutive sentences subject him to
double jeopardy. In his brief, Govan supports his argument with reference to the charging
information and the evidence used to convict him, which are both part of the proceedings
before and during trial. See Ind. Code § 35-34-1-1 (“all prosecutions of crimes shall be
instituted by the filing of an information”); see also Ind. Code § 35-37-2-2 (listing the
presentation of evidence as part of the trial proceedings). Because a motion to correct
erroneous sentence may be utilized only to correct a sentence flawed in a way that does not
require consideration of the proceedings before, during, or after trial, we may not review
Govan’s arguments pursuant to a motion to correct erroneous sentence. See Robinson, 805
N.E.2d at 786 (overruling earlier decision to allow defendant to present argument regarding
double jeopardy as part of motion to correct erroneous sentence). Accordingly, we affirm the
denial of his motion to correct erroneous sentence.
Affirmed.
FRIEDLANDER, J., and BARNES, J., concur.
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