Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020 Page 1 of 9

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

Shaun L. Steele

Bunker Hill, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samuel J. Dayton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Shaun L. Steele,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

January 24, 2020

Court of Appeals Case No.

19A-CR-79

Appeal from the Elkhart Superior 

Court

The Honorable Stephen R. 

Bowers, Judge

Trial Court Cause No.

20D02-1007-FC-60

Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020 Page 2 of 9

Statement of the Case

[1] Shaun L. Steele appeals the trial court’s denial of his motion to correct 

erroneous sentence. We affirm.

Issues

[2] Steele presents three issues in his appeal of the denial of his motion to correct 

his sentence:

I. Whether the trial court erred by imposing an 

impermissible hybrid sentence.

II. Whether the trial court erred by suspending a portion of 

the habitual offender enhancement.

III. Whether Steele’s credit time has been correctly calculated.

Facts and Procedural History

[3] Based on an incident in July 2010, Steele was charged with resisting law 

enforcement as a Class D felony, operating a vehicle while intoxicated as a 

Class A misdemeanor, and receiving stolen property as a Class C felony, which 

was enhanced, under a progressive penalty statute,

1

from a Class D felony due 

to a previous conviction of auto theft. The State also alleged that Steele was an

habitual offender. Steele pleaded guilty to all of these charges and admitted to 

 

1

See Ind. Code § 35-43-4-2.5 (1991). This statute was repealed effective July 1, 2018.
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being an habitual offender. The court sentenced Steele to eight years for 

receiving stolen property, enhanced by an additional eight years for his status as 

an habitual offender. Those sentences were to be served consecutive to the 

concurrent sentences of two years for his resisting conviction and one year for 

his operating while intoxicated conviction.

[4] In 2011, Steele filed a post-conviction petition alleging that trial counsel was 

ineffective for not challenging what he alleged was an impermissible double 

enhancement—the habitual offender enhancement in addition to the 

enhancement of the receiving stolen property offense. The post-conviction 

court granted his petition, and the State appealed. This Court reversed the postconviction court because, at the time Steele was sentenced, Beldon v. State, 926

N.E.2d 480 (Ind. 2010) provided that a prior conviction could not be used to 

enhance a felony under both the progressive penalty statute and the habitual 

offender statute. State v. Steele, No. 20A03-1111-PC-502 (Ind. Ct. App. Oct. 18, 

2012). Steele’s receiving stolen property conviction had been enhanced under 

the progressive penalty statute using a prior conviction of auto theft in cause 

number 20D05-0804-FD-119 (FD-119). In contrast, his habitual offender 

enhancement was based on his admission to prior convictions of robbery in

cause number 20D01-9807-CF-152 (CF-152) and escape in cause number 

37C01-0205-FA-241 (FA-241). Thus, this Court determined that the trial court 

had not violated the prohibition in Beldon and, therefore, Steele’s trial counsel 

had not rendered deficient performance in failing to object to a sentence that 

was lawful at the time.
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[5] Steele’s case was remanded, and, on remand, the trial court resentenced Steele

in January 2013 to eight years for receiving stolen property, enhanced by eight 

years for his habitual offender status, with four years suspended. As before, 

that sentence was to be served consecutive to the concurrent sentences of two 

years for resisting and one year for operating while intoxicated.

[6] In 2016, Steele was granted permission to file a belated appeal. There, Steele 

raised the argument of impermissible double enhancement that had been

previously adjudicated in his post-conviction proceeding, and the Court 

concluded that his appeal was barred by res judicata. Steele v. State, No. 20A03-

1604-CR-889 (Ind. Ct. App. Sept. 15, 2016).

[7] After Steele was released to probation, the State filed a petition for probation 

violation in November 2017, and, in February 2018, it filed a violation 

supplement. Following an evidentiary hearing, the court revoked a portion of 

Steele’s suspended sentence in August 2018. In October 2018, Steele filed a 

motion to modify his sentence and a petition for additional credit time, which 

were denied by the court. Steele subsequently filed a motion to correct 

erroneous sentence in November 2018, which the court also denied. This 

appeal ensued.

Discussion and Decision

[8] Steele appeals the trial court’s denial of his motion to correct erroneous 

sentence. We review a trial court’s decision on a motion to correct erroneous 

sentence only for an abuse of discretion, and we defer to the trial court’s factual 
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findings. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010). An abuse of 

discretion occurs when the trial court’s decision is against the logic and effect of 

the facts and circumstances before it. Id.

[9] An inmate who believes he has been erroneously sentenced may file a motion 

to correct the sentence pursuant to Indiana Code section 35-38-1-15 (1983), 

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.

[10] Our Supreme Court has held that a motion to correct erroneous sentence is 

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

805 N.E.2d 783, 786 (Ind. 2004). The facially erroneous prerequisite is to be 

strictly applied; accordingly, “[c]laims that require consideration of the 

proceedings before, during, or after trial may not be presented by way of a 

motion to correct sentence.” Id. at 787. Indeed the court specifically stated that

“[a]s to sentencing claims not facially apparent, the motion to correct sentence 

is an improper remedy. Such claims may be raised only on direct appeal and, 

where appropriate, by post-conviction proceedings.” Id.

[11] We note that Steele brings his appeal pro se. Pro se litigants are held to the 

same standard as licensed attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-79 | January 24, 2020 Page 6 of 9

Ct. App. 2016), trans. denied. This means that they must follow the established 

rules of procedure and accept the consequences when they fail to do so. Id.

I. Hybrid Sentence

[12] Steele first contends that his sentence is an impermissible hybrid sentence in 

that his sentence for resisting is partially concurrent with his sentence for 

operating while intoxicated and partially consecutive to his sentence for 

receiving stolen auto parts.

[13] In support of his argument, Steele cites to Wilson v. State, 5 N.E.3d 759 (Ind. 

2014). However, Wilson is inapposite to this case. Wilson was sentenced to 

forty-five years on each of two class A felony convictions and twenty years for a

class B felony conviction. The forty-five-year sentences were ordered to be 

served concurrent with one another, but the twenty-year sentence was split:

fifteen years were to be served concurrent with the forty-five-year sentences and 

five years were to be served consecutive to them. The court held that a sentence 

for a single conviction may not be split into both concurrent and consecutive 

forms, as the trial court had done with Wilson’s sentence on his B felony 

conviction. Id. at 764. In so holding, the court reiterated that, in a single 

sentencing order, courts may impose some sentences as consecutive and some 

as concurrent. Id. In fact, the court noted that, where several convictions are 

involved, it is a relatively common practice for courts to fashion an aggregate 

sentence so that some sentences are served concurrently and others are served 

consecutively. Id. at 764 n.3.
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[14] Here, in contrast, the trial court in 2013 resentenced Steele to two years on his 

resisting conviction and one year on his operating while intoxicated conviction

and ordered those sentences to run concurrently. The court further ordered 

Steele to serve eight years for his conviction of receiving stolen property and for

that sentence to be served consecutive to his concurrent sentences for resisting 

and operating while intoxicated. The court also enhanced Steele’s receiving

sentence by eight years, with four years suspended, based on his adjudication as 

an habitual offender. Pursuant to the criteria set out by our Supreme Court in

Wilson, Steele’s sentence is clearly not a hybrid sentence. The trial court 

properly denied his motion to correct erroneous sentence on this issue.

II. Suspension of Habitual Offender Enhancement

[15] Steele asserts that the trial court improperly suspended a portion of his habitual 

offender enhancement. He does so because he is currently serving the 

suspended portion following the court’s finding that he violated his probation. 

He posits that he should be resentenced and claims that the court could not give 

him any additional time; therefore, he would be released from jail.

[16] In support of his argument, Steele cites State v. Williams, 430 N.E.2d 756 (Ind. 

1982). The Williams court held that an habitual offender enhancement could 

not be suspended according to the 1979 version of Indiana Code section 35-50-

2-2, which provided: “The court may suspend any part of a sentence for a 

felony unless: (1) The person has a prior unrelated felony conviction.” Id. at 

758. But as recognized by this Court in Bauer v. State, 875 N.E.2d 744 (Ind. Ct. 
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App. 2007), trans. denied, Section 35-50-2-2 underwent numerous revisions after 

Williams was decided in 1982, and in 2010, when Steele committed these 

offenses, it no longer contained the language used by the Williams court to reach 

its holding.2 Accordingly, the Bauer Court concluded that habitual offender 

enhancements could be suspended.3 See id. at 748-50 (distinguishing and 

respectfully disagreeing with Devaney v. State, 578 N.E.2d 386 (Ind. Ct. App. 

1991)).

[17] In accordance with this precedent, it was not improper for the court, under the 

statutes in effect in 2010, to suspend a portion of Steele’s habitual offender 

enhancement. Thus, the trial court did not abuse its discretion by denying 

Steele’s motion to correct erroneous sentence on this issue.

III. Calculation of Credit Time

[18] Finally, Steele alleges an error in the calculation of his credit time for time he 

spent in jail when he was arrested for his violation of probation. Steele’s claim 

raises an alleged error that requires consideration of matters outside the face of 

the sentencing judgment; consequently, it may not be presented by way of a 

 

2

Section 35-50-2-2 was repealed effective July 2, 2014; much of that statute was then recodified under 

Indiana Code section 35-50-2-2.2.

3

Several years after Bauer was decided and Steele committed these offenses, Indiana Code section 35-50-2-8

(the habitual offender statute) was amended, effective July 1, 2014, to provide that habitual offender 

enhancements are nonsuspendible.
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motion to correct sentence. See Robinson, 805 N.E.2d at 787. We therefore 

conclude the trial court properly denied his motion.

Conclusion

[19] For the reasons stated, we conclude the trial court did not abuse its discretion 

when it denied Steele’s motion to correct erroneous sentence.

[20] Affirmed.

Najam, J., and May, J., concur.