R.L.M., Appellant-Defendant, v. STATE (2008)

MEMORANDUM DECISION - NOT FOR PUBLICATION

Case Summary

R.M. appeals the denial of his motion to correct erroneous sentence. We remand.

Issue

The sole issue is whether R.M.'s four-year sentence for Class D felony theft and an habitual offender finding is facially erroneous.

Facts

In December 2001, the State charged R.M. with theft and also apparently alleged that he was an habitual offender. After several delays in the proceedings, R.M. pled guilty to theft and admitted he was an habitual offender on June 27, 2005. The trial court accepted the plea, convicted R.M. of theft, and found that he was an habitual offender. It sentenced R.M. as follows:

The defendant, having entered a plea of guilty to the crime of Theft and the Court having accepted such plea, having considered the pre-sentence report, and having entered judgment of conviction of a Class D Felony, now sentences the defendant, R.M., to the custody of the Indiana Department of Correction for a period of four (4) years and that he pay the court costs in the sum of $136.00.

App. p. 10.

On June 20, 2008, R.M. filed a motion to correct erroneous sentence, contending that his four-year sentence was facially erroneous because it exceeded the three-year maximum for a Class D felony. On July 1, 2008, the trial court denied the motion. R.M. now appeals.

Analysis

R.M. contends that his four-year sentence is facially erroneous. A motion to correct sentence is used to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of statutory authority. Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). In other words, a facially erroneous sentence is one that has been entered in violation of express statutory authority or based on an erroneous interpretation of a statutory penalty provision. Beliles v. State, 663 N.E.2d 1168, 1173 (Ind. Ct. App. 1996). “Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence.” Robinson, 805 N.E.2d at 787.

R.M. notes that the maximum sentence for a Class D felony is only three years. See Ind. Code § 35-50-2-7(a). The State responds that R.M.'s four-year sentence necessarily must have included an habitual offender enhancement of some length. The enhancement for a Class D felony may range anywhere from one and a half years to four and a half years, or from the Class D felony advisory to three times the advisory. See I.C. § 35-50-2-8(h). The State, in fact, urges that R.M.'s sentence might be impermissibly low, if the trial court had intended to sentence R.M. to the maximum three years for a Class D felony; if that was the case, R.M.'s total sentence with a minimum habitual offender enhancement should be four and a half years.

Both R.M. and the State make valid points, in that it is impossible to tell from the trial court's current sentencing order whether the sentence imposed is illegal and contrary to statutory authority. Although the trial court stated elsewhere that it found R.M. to be an habitual offender, it did not mention that finding in pronouncing the sentence; a sentence of four years for a Class D felony without an habitual offender enhancement would be illegal. Likewise, a sentence of four years with an habitual offender enhancement, if R.M. was sentenced to the maximum for a Class D felony, would fall below the statutory minimum possible sentence. We conclude it is necessary to remand to the trial court to clarify the sentence it imposed.

Conclusion

We remand for the trial court to clarify R.M.'s sentence.

Remanded.

Order

[1] On November 26, 2008, the Court issued its Memorandum Decision. On May 29, 2018, the trial court granted Appellant's Verified Petition for Expungement pursuant to Indiana Code section 35-38-9-3.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. Pursuant to Indiana Code section 35-38-9-6(b), the Clerk of this Court is directed to permanently seal the records regarding this appeal.

2. In conjunction with this order and pursuant to Indiana Code section 35-38-9-6(c), the Court will issue a redacted version of its opinion.

3. The Clerk of this Court is directed to remove the unredacted version of this Court's opinion posted online on the computer gateway administered by the office of technology and replace it with the redacted version of the opinion.

4. The Clerk of the Court is directed to send copies of the redacted opinion together with copies of this order to West/Thomson Reuters, LexisNexis, and all other sources to which decisions/opinions of this Court are normally sent.

5. The Clerk of this Court is directed to send a copy of this order to the parties and the trial court.

Ordered 7/17/2018

BARNES, Judge

MAY, J., and BRADFORD, J., concur.