Michael D. Hickingbottom v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Dec 19 2016, 9:20 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Michael D. Hickingbottom Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana

James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael D. Hickingbottom, December 19, 2016 Appellant-Defendant, Court of Appeals Case No. 45A05-1606-CR-1362 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Appellee-Plaintiff. Murray, Judge Trial Court Cause No. 45G02-0108-CF-178

Barnes, Judge. Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CR-1362 | December 19, 2016 Page 1 of 4

Summary [1] Michael Hickingbottom appeals the denial of his motion to correct erroneous

sentence. We affirm.

Issue [2] Hickingbottom presents two issues for review, which we consolidate and restate

as whether the trial court abused its discretion by denying his motion to correct

erroneous sentence.

Facts [3] In October 2004, at his third trial, a jury convicted Hickingbottom of murder.

Hickingbottom v. State, No. 45A05-0705-PC-243 (Ind. Ct. App. July 11, 2008),

trans. denied. The trial court sentenced Hickingbottom to sixty years of

imprisonment. On direct appeal, this court affirmed Hickingbottom’s

conviction. Id. Hickingbottom then sought post-conviction relief. Id. He

alleged that he received ineffective assistance of trial counsel. Id. Following a

hearing, the post-conviction court denied Hickingbottom’s petition. Id. On

appeal, this court affirmed the trial court’s denial of Hickingbottom’s petition.

Id. In May 2016, Hickingbottom filed a “Motion to Correct Erroneous

Sentence and Claims of Fundamental Error.” App. p. 18. The trial court

denied the motion without a hearing on May 11, 2016. Hickingbottom now

appeals.

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Analysis [4] Hickingbottom contends the trial court erred by denying his motion to correct

erroneous sentence.

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.

Ind. Code § 35-38-1-15. “When we review the court’s decision on a motion to

correct erroneous sentence, we defer to the trial court’s factual finding and

review its decision only for abuse of discretion.” Fry v. State, 939 N.E.2d 687,

689 (Ind. Ct. App. 2010) (quotations omitted) (citations omitted). Our supreme

court has “repeatedly cautioned” that a motion to correct erroneous sentence is

“only appropriate when the sentence is erroneous on its face.” Robinson v. State,

805 N.E.2d 783, 786 (Ind. 2004) (quotation omitted) (citation omitted). [5] Hickingbottom does not contend the sentencing statement contains a facial

error. Instead, he raises substantive issues, including a constitutional

sentencing argument, allegations of fundamental error, and a claim of

ineffective assistance of counsel. These are not the sort of issues the motion to

correct erroneous sentence and a trial court’s ruling thereon are permitted to

address. “[T]he statutory motion to correct sentence should [] be narrowly

confined to claims apparent from the face of the sentencing judgment.” Id. at

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787. Because Hickingbottom raises issues beyond the confines of that which a

trial court may consider, the trial court did not abuse its discretion by denying

Hickingbottom’s motion.

Conclusion [6] The trial court did not abuse its discretion when it denied Hickingbottom’s

motion to correct erroneous sentence. We affirm. [7] Affirmed.

Kirsch, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CR-1362 | December 19, 2016 Page 4 of 4