Nathan D. Hummel v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 23 2019, 6:01 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT, PRO SE ATTORNEYS FOR APPELLEE Nathan Hummel Curtis T. Hill, Jr. Westville, Indiana Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nathan D. Hummel, August 23, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-743 v. Appeal from the Starke Circuit Court State of Indiana, The Honorable Kim Hall, Judge Appellee-Plaintiff. Trial Court Cause No. 75C01-1112-FA-15

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Statement of the Case [1] Nathan Hummel (“Hummel”), pro se, appeals the trial court’s order denying

his motion to correct erroneous sentence. Hummel challenges the trial court’s

imposition of a consecutive sentence, arguing that the plea agreement did not

specify a consecutive sentence. Because a motion to correct erroneous sentence

is limited to correcting sentencing errors apparent on the face of the judgment

and Hummel raises an issue outside of this context, we conclude that the trial

court did not abuse its discretion by denying his motion to correct erroneous

sentence. [2] We affirm.

Issue

Whether the trial court abused its discretion by denying Hummel’s motion to correct erroneous sentence.

Facts [3] In December 2011, the State charged Hummel with Count 1, Class A felony

dealing a narcotic drug; Count 2, Class B felony robbery; Count 3, Class B

felony robbery (aiding, inducing, or causing); Count 4, Class C felony

disarming an officer; Count 5, Class D felony resisting law enforcement; and

Count 6, Class D felony criminal mischief. In 2012, Hummel entered into a

plea agreement and pled guilty to an amended Count 1 and Counts 2, 3, and 4.

In exchange, the State agreed to amend Count 1 from a Class A felony to a

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Class B felony and to dismiss Counts 5 and 6. The plea agreement provided

that “[t]he sentences in count II, count III, and count IV shall run

concurrently.” (App. 18). [4] Thereafter, in May 2012, the trial court sentenced Hummel to fifteen (15) years

for amended Count 1, ten (10) years for Count 2, ten (10) years for Count 3,

and two (2) years for Count 4. The trial court ordered Counts 2, 3, and 4 to run

concurrently and amended Count 1 to run consecutively to Counts 2, 3, and 4. [5] Seven years later, in January 2019, Hummel filed a motion to correct erroneous

sentence. In his motion, Hummel challenged the trial court’s imposition of

amended Count 1 running consecutively to Counts 2, 3, and 4. The trial court

denied Hummel’s motion to correct erroneous sentence. Hummel now appeals.

Decision [6] Hummel appeals the trial court’s denial of his motion to correct erroneous

sentence. We review a trial court’s denial of a motion to correct erroneous

sentence for an abuse of discretion, which occurs when the trial court’s decision

is against the logic and effect of the facts and circumstances before it. Davis v.

State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012). [7] An inmate who believes he has been erroneously sentenced may file a motion

to correct the sentence pursuant to INDIANA CODE § 35-38-1-15. Neff v. State,

888 N.E.2d 1249, 1250-51 (Ind. 2008). INDIANA CODE § 35-38-1-15 provides:

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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.’” Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (quoting Gaddie

v. State, 566 N.E.2d 535, 537 (Ind. 1991)). [8] A statutory motion to correct erroneous 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, 805 N.E.2d at 787.

“Such claims may be resolved by considering only the face of the judgment and

the applicable statutory authority without reference to other matters in or

extrinsic to the record.” Fulkrod v. State, 855 N.E.2d 1064, 1066 (Ind. Ct. App.

2006). If a claim requires consideration of the proceedings before, during, or

after trial, it may not be presented by way of a motion to correct erroneous

sentence. Robinson, 805 N.E.2d at 787. “Use of the statutory motion to correct

sentence should thus be narrowly confined to claims apparent from the face of

the sentencing judgment, and the ‘facially erroneous’ prerequisite should

henceforth be strictly applied[.]” Id. [9] Here, Hummel challenges the trial court’s imposition of amended Count 1

running consecutively to Counts 2, 3, and 4. Specifically, he argues that his

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“plea agreement does NOT call for consecutive sentences[.]” (Hummel’s Br.

6). We agree with the State that resolution of this issue “required the trial court

to consider the proceedings before trial because he asked the court to compare

his plea agreement to his sentence.” (State’s Br. 6). Because the error Hummel

alleges is not clear from the face of the sentencing order, it is not appropriate for

a motion to correct erroneous sentence. See Robinson, 805 N.E.2d at 787.

Accordingly, Hummel has failed to show that the trial court abused its

discretion by denying his motion, and we affirm the trial court’s judgment. See,

e.g., Bauer v. State, 875 N.E.2d 744, 746 (Ind. Ct. App. 2007) (affirming the trial

court’s denial of the defendant’s motion to correct erroneous sentence where

the defendant’s claims required consideration of matters in the record outside of

the face of the judgment and were, accordingly, not the types of claims properly

presented in a motion to correct erroneous sentence), trans. denied. [10] Affirmed.

Robb, J., and Mathias, J., concur.

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