Richard L. Fippen v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 14 2017, 10:51 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Richard L. Fippen Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard L. Fippen, November 14, 2017
Appellant-Defendant, Court of Appeals Case No.
35A02-1702-CR-451
v. Appeal from the Huntington
Circuit Court
State of Indiana, The Honorable Thomas M. Hakes,
Appellee-Plaintiff. Judge
Trial Court Cause No.
35C01-0802-FC-13
Vaidik, Chief Judge.
Case Summary
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[1] Richard L. Fippen appeals the denial of his motion to correct erroneous
sentence. We affirm.
Facts and Procedural History
[2] In February 2008, the State, under Cause No. 35C01-0802-FC-13 (“FC-13”),
charged Fippen with Count I: Class C felony burglary, Count II: Class C felony
operating a motor vehicle after lifetime suspension, and being a habitual
offender. Thereafter, Fippen and the State entered into a plea agreement
whereby Fippen would plead guilty to Count I and admit being a habitual
offender and the State would dismiss Count II. According to the agreement,
sentencing for Count I was “open . . . to the court” and there was “a cap of four
(4) years on any initially executed sentence that might be imposed on the
Habitual Offender Enhancement.” Appellant’s App. Vol. II p. 24. In addition,
the parties would argue to the court whether Fippen’s sentence in this case
would run concurrent or consecutive to the sentence that he would receive in
Cause No. 35C01-0802-FC-12 (“FC-12”) (Class C felony receiving stolen auto
parts).
[3] In June 2008, the trial court sentenced Fippen to seven years for Count I, with
two years suspended to probation. The court then enhanced that sentence by
eight years for being a habitual offender, with four of those years suspended to
probation. Finally, the court ordered Fippen’s sentence in this case to be served
consecutive to his two-year sentence in FC-12.
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[4] In February 2017, Fippen, pro se, filed a motion pursuant to Indiana Code
section 35-38-1-15 claiming that his sentence in FC-13 was erroneous and
asking the court to correct it. Fippen, pro se, now appeals the denial of that
motion.
Discussion and Decision
[5] Fippen contends that the trial court erred in denying his motion to correct
erroneous sentence. An inmate who believes that he has been erroneously
sentenced may file a motion to correct his sentence pursuant to Indiana Code
section 35-38-1-15:
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.
See Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008). The purpose of Section 35-
38-1-15 “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). Accordingly, a motion to correct
sentence may only be used to correct sentencing errors that are clear from the
face of the judgment imposing the sentence in light of the statutory authority.
Id. at 787. Claims that require consideration of the proceedings before, during,
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or after trial may not be presented by way of a motion to correct sentence. Id.
Instead, sentencing errors that are not facially apparent must be addressed
promptly on direct appeal and thereafter on post-conviction review. Id.
[6] Fippen does not argue that his burglary sentence is erroneous. Rather, he
argues that his habitual-offender enhancement—eight years with four
suspended to probation—is erroneous for two main reasons. First, he questions
whether the prior convictions relied upon by the State validly establish that he is
a habitual offender. This, however, is not a challenge to Fippen’s habitual-
offender sentence but rather an argument that he is not a habitual offender at
all. Accordingly, it is not a proper subject for a motion to correct erroneous
sentence.
[7] Second, Fippen argues that his habitual-offender enhancement is erroneous
because it includes suspended time. Fippen cites Howard v. State, 873 N.E.2d
685, 690 (Ind. Ct. App. 2007), where we held that “where a criminal defendant
receives an enhanced sentence under the habitual offender statute, such
sentence may not be suspended.” For that proposition, we relied on Reffett v.
State, 844 N.E.2d 1072, 1074 (Ind. Ct. App. 2006), which in turn relied on State
v. Williams, 430 N.E.2d 756 (Ind. 1982). Williams held that a habitual-offender
enhancement could not be suspended according to the 1979 version of Indiana
Code section 35-50-2-2, which provided: “The court may suspend any part of a
sentence for a felony unless: (1) The person has a prior unrelated felony
conviction.” Id. at 758. But as recognized by this Court in Bauer v. State, 875
N.E.2d 744 (Ind. Ct. App. 2007), trans. denied, Section 35-50-2-2 underwent
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numerous revisions after Williams was decided in 1982, and in 2007 it no longer
contained the language used by the Williams Court to reach its holding.1
Accordingly, the Bauer Court concluded that habitual-offender enhancements
could be suspended.2 Id. at 748. In light of this clarification, Fippen has failed
to establish that the trial court erred, under the statutes in effect in 2008, by
including suspended time in his habitual-offender enhancement. We therefore
affirm the trial court’s denial of his motion to correct erroneous sentence.
[8] Affirmed.
Mathias, J., and Crone, J., concur.
1
Section 35-50-2-2 was repealed effective July 1, 2014. Much of that statute was then recodified under
Indiana Code section 35-50-2-2.2.
2
Several years after Bauer was decided and Fippen committed the offense in this case, the legislature
amended the habitual-offender statute, Indiana Code section 35-50-2-8, to provide that habitual-offender
enhancements are “nonsuspendible.” See P.L. 158-2013, § 661; see also Ind. Code Ann. § 35-50-2-8(i) (West
Supp. 2016).
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