Court of Appeals of Indiana | Memorandum Decision 45A03-1707-CR-1588 | April 5, 2018 Page 1 of 8

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.

APPELLANT PRO SE

Damien R. Fayson

Bunker Hill, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Damien R. Fayson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 5, 2018

Court of Appeals Case No.

45A03-1707-CR-1588

Appeal from the

Lake Superior Court

The Honorable

T. Edward Page, Judge Pro 

Tempore

The Honorable

Natalie Bokota, Magistrate

Trial Court Cause No.

45G02-9808-CF-158

Kirsch, Judge.
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[1] Damien R. Fayson (“Fayson”) appeals the trial court’s denial of his pro se 

motion to correct erroneous sentence, raising one issue that we restate as: 

whether the trial court abused its discretion when it denied his motion.

[2] We affirm.

Facts and Procedural History

[3] In August 1998, the State charged Fayson with murder, a felony, and he was 

found guilty following a January 1999 jury trial. Appellant’s App. Vol. 2 at 5. On 

February 23, 1999, the trial court held a sentencing hearing, at which Fayson 

appeared by counsel, along with the State and a representative from the 

probation department, who filed a presentence investigation report. Id. at 13. 

After the hearing, the trial court issued an order stating in part:

Evidence is presented, arguments are heard, and the defendant is 

given an opportunity to make a statement before sentence is 

imposed. For the reasons stated in open court, the defendant is 

remanded to the custody of the department of correction for 

classification and confinement in an appropriate facility for a 

term of sixty years for committing the offense of murder. 

Id. Fayson filed a direct appeal, and the Indiana Supreme Court upheld his 

conviction. Fayson v. State, 726 N.E.2d 292, 296 (Ind. 2000).

[4] The facts and circumstances of his crime are set out in Fayson’s direct appeal:

Early on the morning of August 9, 1998, Brandon Ford and 

Jermaine Lowe were sitting outside the home of Yakkei Wright, 

Fayson’s girlfriend. Ford had dated Wright during the spring of 

that year. According to Jermaine, Fayson and a friend drove up 
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to the house and Fayson went inside and returned with a nine 

millimeter gun. An argument broke out between Fayson and 

Ford but Jermaine believed the dispute had been settled and 

turned his attention to a videogame being played in the house. 

Jermaine then heard a shot. As Jermaine turned, he saw Fayson 

bring his hand back and Ford’s body fall to the sidewalk. Fayson 

threatened to kill Jermaine if he told anyone of the shooting.

Jermaine shook Ford and concluded that he was dead. He then 

ran to his house and reported the shooting. Jermaine’s older 

brother, James Lowe, went to the scene and spotted Ford’s body 

in a field adjacent to Wright’s house. Two minutes later, Fayson 

and a friend arrived at the field. Fayson told James that he had 

killed Ford and had to move the body again because the situation 

was going to “get too hot.”

Jermaine reported to the police that Fayson had killed Ford. 

When an officer went to Wright’s house to find Fayson, Wright 

stated that she did not know where Fayson was and had not seen

him since seven o’clock that morning. She then gave police 

permission to search her house where they discovered Fayson 

asleep on a bed. A bullet casing and pool of blood were found in 

front of Wright’s house.

An autopsy concluded that Ford died of a gunshot wound to the 

right eye. Stippling on Ford’s skin indicated that the shot had 

been fired at close range. The State charged Fayson with murder 

and Wright with assisting a criminal. Fayson and Wright were 

tried together by a jury, convicted, and sentenced to sixty years 

and three years imprisonment, respectively.

Id. at 293-94. 
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[5] On June 14, 2017, Fayson filed a Motion to Correct Erroneous Sentence, 

alleging that the trial court erred when it sentenced him to sixty years, which 

was an enhanced sentence from the presumptive fifty-five years. Appellant’s 

App. Vol. 2 at 7. Fayson argued that, in order to impose an enhanced sentence, 

the trial court was required to identify the significant aggravating and mitigating 

factors, relate the specific facts and reasons that it found those factors, and 

balance the aggravators and mitigators. Id. He asked that his sentence be 

reduced from sixty years to fifty-five years, arguing:

[T]here are no visible aggravators or mitigators listed. The 

statute I.C. § 35-50-2-3 guarantees the right to a presumptive 

sentence when no valid aggravators are present. . . . Thus, the 

trial court did not obtain statutory authority to enhance 

petitioner[’]s sentence by five years.

Id. at 12. 

[6] In June 2017, the trial court issued an order (“Order”), denying Fayson’s

motion to correct erroneous sentence. The Order stated, in pertinent part:

A motion to correct erroneous sentence may only be used to 

attack a sentence that is erroneous on its face. The sentence 

herein is not facially defective because the record indicates the 

aggravators and mitigators were weighed in open court.

Therefore the issue must be raised in a petition for post-
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conviction relief if the petitioner wishes to attack his conviction 

and/or sentence.1

Id. at 14. Fayson now appeals.

Discussion and Decision

[7] Fayson’s motion to correct erroneous sentence derives from Indiana Code 

section 35-35-1-15, which provides:

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).

[8] A motion to correct erroneous sentence is a procedural mechanism which may 

be used to challenge a sentence that is erroneous on its face. Fulkrod v. State, 

855 N.E.2d 1064, 1066 (Ind. Ct. App. 2006) (citing Robinson, 805 N.E.2d at

787). For example, a motion to correct erroneous sentence could be used to 

 

1 The Order continued by noting that Fayson has already filed a petition for post-conviction relief and that 

“[i]f the defendant wishes to file a successive petition for post-conviction relief, he must do so directly with 

the clerk of the Indiana Supreme Court[.]” Appellant’s App. Vol. 2 at 14.
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correct “‘illegal sentences in violation of express statutory authority or an 

erroneous interpretation of a penalty provision of a statute,’ but would not be 

available for claims raising ‘constitutional issues or issues concerning how the 

trial court weighed factors in imposing sentence.’” Robinson, 805 N.E.2d at 786 

(quoting Jones v. State, 544 N.E.2d 492, 496 (Ind. 1989)). 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, 855 N.E.2d at 1066. Our Supreme Court has made clear that 

“[t]he ‘facially erroneous’ prerequisite should . . . be strictly applied[.]” 

Robinson, 805 N.E.2d at 787. Claims that require consideration of proceedings 

before, during, or after trial may not be presented by way of a motion to correct 

erroneous sentence. Id.

[9] Here, Fayson’s motion to correct erroneous sentence argued that, in the trial 

court’s February 1999 sentencing order, “there are no visible aggravators or 

mitigators listed” and “no valid aggravators are present.” Appellant’s App. Vol. 2 

at 12. He contends on appeal that because the trial court “failed to document 

on the record which factors were relied upon” to enhance his sentence, the trial 

court lacked authority to impose the sixty-year sentence, and this “failure to 

provide an accurate record deprive[d] [him] of due process.” Appellant’s Br. at 

6. Upon review, we find that the trial court properly denied Fayson’s motion. 

[10] As an initial matter, we find that Fayson’s argument does not actually allege 

that his sentence is facially erroneous, and, more precisely, it claims that the 

written sentencing statement was insufficient. Fayson is correct that, to 
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enhance a presumptive sentence, the trial court was required to “state the 

reasons underlying the sentence.” Ratliff v. State, 741 N.E.2d 424, 432 (Ind. Ct. 

App. 2000) (citing Indiana Code § 35-38-1-3(3)). When reviewing the 

sufficiency of the sentencing statement, we examine both the trial court’s 

written and oral statements. Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. 

App. 2012); see also Ratliff, 741 N.E.2d at 432 (in reviewing sufficiency of 

sentencing statement, appellate court is not limited to written sentencing order). 

[11] Here, the trial court’s written order that sentenced Fayson to sixty years

incorporated the reasons that had been stated in open court at the sentencing 

hearing. Appellant’s App. Vol. 2 at 13. On appeal, Fayson does not dispute that, 

at the sentencing hearing, the trial court stated the reasons for the sentence it 

imposed, and he does not claim that he does not know the reasons, that they 

were improper, or that there were none. Rather, he appears to claim that the 

aggravator(s) should have been expressly stated in the written order, and 

because they were not, the trial court lacked authority to sentence him to 

anything in excess of the presumptive sentence, and the trial court should have 

granted his motion to correct erroneous sentence. We disagree.

[12] First, contrary to Fayson’s argument, the trial court’s authority to sentence him 

is not based upon what is or is not stated in the written sentencing order; the 

authority is grounded in statutes. See e.g., Ind. Code ch. 35-38-1; Ind. Code ch.

35-50-2. Second, any claim that the trial court did not enter an adequate 

sentencing statement should have been brought by direct appeal. See Dennis v. 

State, 908 N.E.2d 209, 212 (Ind. 2009) (direct appeal asserting that trial court 
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did not enter sufficient sentencing statement). Third, Fayson’s assertion that he 

was “deprive[d] . . . of due process” because the written sentencing order 

referred to and incorporated reasons discussed in open court at the sentencing 

hearing, but did not list aggravators or mitigators, is a claim that raises 

“constitutional issues or issues concerning how the trial court weighed factors 

in imposing sentence[,]” which our Supreme Court has stated are not 

appropriate matters for a motion to correct erroneous sentence. Robinson, 805 

N.E.2d at 786. Fourth, Fayson’s sixty-year sentence is within statutory 

guidelines. Ind. Code § 35-50-2-3 (stating that person who commits murder 

shall be imprisoned for a fixed term of fifty-five years, with not more than ten 

years added for aggravating circumstances or not more than ten years 

subtracted for mitigating circumstances). Accordingly, we find that Fayson’s 

sentence was not erroneous on its face, and the trial court did not abuse its 

discretion when it denied his motion to correct erroneous sentence.

[13] Affirmed.

Baker, J., and Bradford, J., concur.