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Bruce Morgan v. State of Indiana (mem. dec.)
35A02-1608-CR-1864
| Ind. Ct. App. | Mar 21, 2017
|
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Case Information

*1 MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this 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.

A PPELLANT PRO SE A TTORNEYS FOR A PPELLEE Bruce Morgan Curtis T. Hill, Jr.

Michigan City, Indiana Indianapolis, Indiana

Larry D. Allen Deputy Attorney General Indianapolis, Indiana I N T H E

COURT OF APPEALS OF INDIANA Bruce Morgan, March 21, 2017 Court of Appeals Case No. Appellant-Defendant,

35A02-1608-CR-1864 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Judge Appellee-Plaintiff.

Trial Court Cause No. 35C01-0711-FB-78 Barnes, Judge.

Case Summary

[1] Bruce Morgan appeals the denial of his motion to correct erroneous sentence.

We affirm.

Issue

[2] Morgan presents one issue for our review, which we restate as whether the trial abused its discretion by denying Morgan’s motion to correct erroneous

Facts In February 2004, Morgan pled guilty to nine counts of burglary — eight Class B

felonies and one Class C felony. The plea agreement capped Morgan’s executed sentence for each count at twelve and one-half years, and the parties agreed the sentences for Counts 4 through 9 (five Class B felonies and the Class C felony) would run concurrently. Morgan and the State otherwise did not make an agreement regarding concurrent or consecutive sentencing. Pursuant to the plea agreement, Morgan waived his right to appeal his sentence. On Counts 1 through 8, the trial court sentenced Morgan to serve eighteen years with five and one-half years suspended for each count. On Count 9, the trial court sentenced Morgan to seven years. The trial court ordered Morgan to serve his sentences on Counts 1, 2, and 3 consecutively and Counts 4 through 9 concurrently. Morgan was ordered to serve his sentences on Counts 4 through 9 consecutive to Count s 1 through 3. Morgan’s executed sentence was fifty years. Morgan appealed his sentence. This Court concluded Morgan explicitly *3 waived his right to appellate review of his sentence and affirmed that sentence. Morgan v. State , No. 35A02-0804-CR-350 (Ind. Ct. App. Sept. 26, 2008), trans. denied . On July 21, 2016, Morgan filed a Motion to Correct Erroneous Sentence. The trial court denied that motion, and Morgan now appeals.

Analysis Morgan argues the trial court erred by denying his motion to correct erroneous

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 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). Morgan does not contend the sentencing order contains a facial error. Instead he argues that his sentence violates the terms of his plea agreement. This is not the sort of issue the motion to correct erroneous sentence and a trial court’s *4 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 787. Because Morgan raises an issue beyond the confines of that which a trial court may consider, the trial court did not abuse its discretion by denying his motion.

Conclusion The trial court did not abuse its discretion when it denied Morgan’s motion to

correct erroneous sentence. We affirm. Affirmed.

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

Case Details

Case Name: Bruce Morgan v. State of Indiana (mem. dec.)
Court Name: Indiana Court of Appeals
Date Published: Mar 21, 2017
Docket Number: 35A02-1608-CR-1864
Court Abbreviation: Ind. Ct. App.
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