Gary L. Monday v. State of Indiana

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 27 2015, 8:42 am 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 Gary L. Monday Gregory F. Zoeller New Castle Correctional Facility Attorney General of Indiana New Castle, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gary L. Monday, October 27, 2015 Appellant-Defendant, Court of Appeals Case No. 39A01-1506-CR-639 v. Appeal from the Jefferson Circuit Court State of Indiana, The Honorable Darrell M. Auxier, Appellee-Plaintiff Judge Trial Court Cause No. 1486

Crone, Judge. [1] Gary L. Monday, pro se, appeals the denial of his motion to correct erroneous

sentence. We affirm.

Court of Appeals of Indiana | Memorandum Decision 39A01-1506-CR-639 | October 27, 2015 Page 1 of 3 [2] In 1986, Monday was charged with the class A felony rape and murder of the

same victim. He entered a plea agreement under which he agreed to plead

guilty to both counts; the State would recommend a twenty-eight-year executed

sentence on the rape count and a forty-year executed sentence on the murder

count; and the sentences would run consecutively. Tr. at 9. The trial court

accepted the plea agreement and sentenced Monday to sixty-eight years per the

State’s recommendation. [3] In 2014, Monday filed a pro se motion to correct erroneous sentence pursuant

to Indiana Code Section 35-38-1-15, which states in pertinent part that if a

“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.” Monday claimed that the trial court lacked statutory

authority to impose consecutive sentences. The trial court denied the motion.

Monday now appeals. [4] The purpose of Indiana Code Section 35-38-1-15 “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. Our supreme court has stated that “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). Claims that require consideration of the

proceedings before, during, or after a trial or guilty plea may not be presented

by way of a motion to correct erroneous sentence. See State v. Arnold, 27 N.E.3d

Court of Appeals of Indiana | Memorandum Decision 39A01-1506-CR-639 | October 27, 2015 Page 2 of 3

315, 318 (Ind. Ct. App. 2015), trans. denied. We review a trial court’s ruling on

a motion to correct erroneous sentence for an abuse of discretion. Koontz v.

State, 975 N.E.2d 846, 848 (Ind. Ct. App. 2012). [5] We find no abuse of discretion here. Monday ignores the statutory authority

that was in effect at the time of his sentencing, which does not prohibit

consecutive sentences under the facts of this case. See Ind. Code § 35-50-1-2

(1986) (“(a) Except as provided in subsection (b) of this section, the court shall

determine whether terms of imprisonment shall be served concurrently or

consecutively. (b) If a person commits a crime: (1) after having been arrested

for another crime; and (2) before the date he is discharged from probation,

parole, or a term of imprisonment imposed for that other crime; the terms of

imprisonment for the crimes shall be served consecutively, regardless of the

order in which the crimes are tried and sentences are imposed.”). Thus, any

sentencing error would not be clear from the face of the judgment. Moreover,

the caselaw that Monday cites either predates or postdates this version of the

statute or is simply irrelevant to the circumstances of this case: Monday pled

guilty to two nearly simultaneous crimes and agreed to the imposition of

consecutive sentences. Therefore, we affirm. [6] Affirmed.

May, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 39A01-1506-CR-639 | October 27, 2015 Page 3 of 3