MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision
                                                                  Oct 02 2015, 9:02 am
shall not be regarded as precedent or
cited before any 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
David Streeter                                      Gregory F. Zoeller
Pendleton, Indiana                                  Attorney General of Indiana

                                                    Jodi Kathryn Stein
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Streeter,                                          October 2, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         44A03-1408-CR-291
        v.                                               Appeal from the LaGrange
                                                         Superior Court;
State of Indiana,                                        The Honorable George E. Brown,
                                                         Judge;
Appellee-Plaintiff.                                      44D01-0011-CF-49




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 44A03-1408-CR-291 | October 2, 2015    Page 1 of 5
[1]   David Streeter appeals the denial of his motion to correct erroneous sentence.

      Because analysis of the alleged error required looking beyond the face of the

      sentencing order to determine the facts underlying his convictions, his claim

      could not be addressed in the context of a motion to correct erroneous sentence.


[2]   We therefore affirm.


                                    Facts and Procedural History
[3]   For acts that occurred between May and September of 1999, the State charged

      Streeter with one count of Class A felony child molesting, 1 two counts of Class

      C felony child molesting, 2 and an allegation he is a repeat sexual offender. 3

      Streeter entered a guilty plea to all four allegations, and the court imposed a

      sixty-year sentence. The court ordered Streeter to serve fifty years for the Class

      A felony consecutive to ten years for being a repeat offender, with two eight-

      year sentences for the Class C felonies to be served concurrent to the rest of the

      sentence.


[4]   Streeter filed a motion to correct erroneous sentence. The court denied that

      motion in an order that explained only: “After considering the evidence and




      1
          Ind. Code § 35-42-4-3.
      2
          Ind. Code § 35-42-4-3.
      3
          Ind. Code § 35-50-2-14.


      Court of Appeals of Indiana | Memorandum Decision 44A03-1408-CR-291 | October 2, 2015   Page 2 of 5
      argument presented at the hearing, the Court now denies the Defendant’s

      motion to correct erroneous sentence.” (App. at 136.)


                                     Discussion and Decision
[5]   A motion to correct erroneous sentence derives from Indiana Code § 35-38-1-

      15, which provides:

              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.


[6]   Such a motion is intended “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) (quoting Gaddie v.

      State, 566 N.E.2d 535, 537 (Ind. 1991)). However, it is appropriate for use

      “only when the sentence is ‘erroneous on its face,’” id. at 786, and “the ‘facially

      erroneous’ prerequisite should . . . be strictly applied.” Id. at 787. If claims of

      sentencing errors require consideration of matters other than the sentencing

      judgment itself, they should be raised on direct appeal or in a petition for post-

      conviction relief. Id.


[7]   A ruling on a motion to correct erroneous sentence is appealed by “normal

      appellate procedures.” Id. at 786. We review the trial court’s decision for an

      abuse of discretion, which occurs when the “court’s decision is against the logic
      Court of Appeals of Indiana | Memorandum Decision 44A03-1408-CR-291 | October 2, 2015   Page 3 of 5
      and effect of the facts and circumstances before it.” Fry v. State, 939 N.E.2d

      687, 689 (Ind. Ct. App. 2010).


[8]   Streeter’s motion to correct erroneous sentence asserted his multiple convictions

      of child molesting “violate the prohibition against double jeopardy,” because

      they are based on the same evidence. (App. at 115-16.) In support thereof he

      cites the transcript and the circumstances under which he entered his guilty

      plea. Thus, he asked the trial court to look at the proceedings to determine

      whether his sentence is erroneous. It could not. See Fry, 939 N.E.2d at 690

      (“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.”).


[9]   Nor do we see any double jeopardy violation apparent on the face of his

      sentencing order. That document provides, in relevant part:

                     The Court enters JUDGMENTS OF CONVICTION for
              the offense CHILD MOLESTING, a Class A Felony, as
              charged in Count I; CHILD MOLESTING, a Class C Felony,
              as charged in Count II; CHILD MOLESTING, a Class C
              Felony, as charged in Count III; and REPEAT SEXUAL
              OFFENDER.


                     Argument heard as to sentencing. The Court sentences
              the defendant as follows:


              COUNT I – That he pay a fine to the State of Indiana in the
              amount of $1.00 plus court costs of $129.00 plus a child abuse
              prevention fee of $100.00; and that he serve fifty (50) years at the
              Indiana Department of Correction.


      Court of Appeals of Indiana | Memorandum Decision 44A03-1408-CR-291 | October 2, 2015   Page 4 of 5
               COUNT II – That he pay a fine to the State of Indiana in the
               amount of $1.00; and that he serve eight (8) years at the Indiana
               Department of Correction, concurrent with Count I.


               COUNT III – That he pay a fine to the State of Indiana in the
               amount of $1.00; and that he serve eight (8) years at the Indiana
               Department of Correction, concurrent with Count I and II.


               COUNT IV – That he serve ten (10) years at the Indiana
               Department of Correction, consecutive to Counts I, II, & III.


[10]   (App. at 73) (emphases in original). As no double jeopardy violation is

       apparent from the language in that document, Streeter was not entitled to relief.

       and the court did not abuse its discretion by denying his motion.


                                                 Conclusion
[11]   Because Streeter’s argument required the court to look past the face of the

       sentencing order, he could not obtain relief by filing a motion to correct

       erroneous sentence. Nor was any double jeopardy violation apparent from the

       face of his sentencing order. We therefore affirm the trial court’s denial of his

       motion.


[12]   Affirmed.


       Crone, J., and Bradford, J., concur.




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