Allenn Peterson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 18 2015, 9:07 am Memorandum Decision 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 Allenn Peterson Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana

Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Allenn Peterson, March 18, 2015

Appellant-Defendant, Court of Appeals Case No. 45A03-1408-CR-304 v. Appeal from the Lake Superior Court The Honorable Salvador Vazquez, State of Indiana, Judge Appellee-Plaintiff The Honorable Natalie Bokota, Judge Cause No. 45G01-8103-CR-034

Friedlander, Judge. [1] Allenn Peterson appeals the denial of his pro se motion to correct erroneous

sentence, claiming that the trial court lacked statutory authority to impose

consecutive sentences.

Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-304| March 18, 2015 Page 1 of 4 [2] We affirm. [3] On March 11, 1981, Peterson murdered Robert Watkins and then raped and

robbed Watkins’s mother when she arrived home later that evening. Peterson

was subsequently convicted of murder, class A felony rape, and class B felony

robbery. He was sentenced to forty-five years for murder, thirty-five years for

rape, and thirty years for robbery. The sentences for murder and rape were

ordered to be served consecutively. His convictions were upheld on direct

appeal and post-conviction relief. See Peterson v. State, 453 N.E.2d 196 (Ind.

1983); Peterson v. State, 650 N.E.2d 339 (Ind. Ct. App. 1995). [4] On August 4, 2014, Peterson filed a motion to correct erroneous sentence. The

trial court promptly denied the motion, noting that the sentence was not

erroneous on its face. Peterson now appeals. [5] A motion to correct erroneous sentence derives from Ind. Code Ann. § 35-38-1-

15 (West, Westlaw current with all legislation of the 2015 First Regular Session

of the 119th General Assembly effective through February 23, 2015):

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. “The purpose of the statute is to provide prompt, direct access to an

uncomplicated legal process for correcting the occasional erroneous or illegal

sentence.” Davis v. State, 937 N.E.2d 8, 10 (Ind. Ct. App. 2010), trans. denied. Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-304| March 18, 2015 Page 2 of 4

[6] “[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.” Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). In

other words, use of this statutory motion should be reserved for the correction

of “obvious sentencing errors”. Id. at 787 n.3. Claims that require

consideration of matters outside the face of the sentencing judgment may not be

addressed via this type of motion. See, e.g., Neff v. State, 888 N.E.2d 1249 (Ind.

2008); Robinson v. State, 805 N.E.2d 783. [7] In his motion, Peterson argued that the trial court lacked statutory authority to

impose consecutive sentences “because [his] offenses all derived from a single

episode of criminal conduct”. Appellant’s Appendix at 11. He cited Ind. Code

Ann. § 35-50-1-2 (West, Westlaw current with all legislation of the 2015 First

Regular Session of the 119th General Assembly effective through February 23,

2015) in support of his argument, which imposes an aggregate sentencing cap

for felony convictions (except convictions for crimes of violence) arising out of

an episode of criminal conduct. [8] Peterson’s motion lacks merit for several reasons. Most notably, because a

determination of whether the crimes arose out of an episode of criminal

conduct cannot be made without looking beyond the sentencing judgment1 to

the facts underlying each conviction, there is no facially apparent error in

1 In fact, Peterson has not even included the sentencing judgment in the record. In light of the prior appeals, however, we were able to determine the sentence imposed.

Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-304| March 18, 2015 Page 3 of 4

Peterson’s eighty-year sentence. The argument, therefore, may not be raised in

a motion to correct sentence. [9] Furthermore, the statutory provision upon which Peterson relies did not exist

until 1994. See Slone v. State, 652 N.E.2d 552, 562 (Ind. Ct. App. 1995) (the

episode of criminal conduct limitation is “part of a legislative amendment to the

statute which was added in 1994 and which represents a previously nonexistent

restraint upon a trial court’s discretion when imposing consecutive sentences”),

trans. denied. Even if it had existed in 1981, the statutory limitation has always

been inapplicable to murder. [10] Judgment affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-304| March 18, 2015 Page 4 of 4