Court of Appeals of Indiana | Memorandum Decision 55A01-1602-PC-327 | April 27, 2017 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

Brian Woodring

New Castle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Katherine Cooper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brian Woodring,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

April 27, 2017

Court of Appeals Case No.

55A01-1602-PC-327

Appeal from the Morgan Superior 

Court

The Honorable Clark Rogers,

Special Judge

Trial Court Cause No.

55D03-1110-PC-1273

Najam, Judge.
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Statement of the Case

[1] Brian Woodring appeals the post-conviction court’s denial of his petition for 

post-conviction relief. Woodring raises three issues for our review, which we 

consolidate and restate as two issues:

1. Whether the State breached the plea agreement regarding 

Woodring’s Sexually Violent Predator (“SVP”) status and

his parole.

2. Whether his sentence is illegal.

[2] We affirm.

Facts and Procedural History

[3] On June 17, 2010, Woodring pleaded guilty to child molesting, as a Class C 

felony; and obscene performance, as a Class D felony; and he admitted to being 

a repeat sexual offender. The plea agreement provided that the trial court 

would sentence Woodring to consecutive sentences of eight years, with seven 

and one-half years executed and six months on non-reporting probation for 

child molesting; three years executed for obscene performance; and a ten-year

enhancement for being a repeat sexual offender. Woodring’s plea agreement 

stated that the aggregate twenty-one-year sentence would run consecutive to his 

sentences stemming from convictions in Johnson County.

[4] On October 6, 2011, Woodring filed a petition for post-conviction relief, which 

he amended on June 4, 2015. In his amended petition, Woodring alleged in 

relevant part that the State had breached the plea agreement and that his 
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sentence was illegal. Following a hearing, the court denied the petition. This 

appeal ensued.

Discussion and Decision

Standard of Review

[5] Woodring appeals the post-conviction court’s denial of his petition for postconviction relief. Our standard of review is clear:

The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004) 

(citations omitted). When appealing the denial of postconviction relief, the petitioner stands in the position of one 

appealing from a negative judgment. Id. To prevail on appeal 

from the denial of post-conviction relief, a petitioner must show 

that the evidence as a whole leads unerringly and unmistakably 

to a conclusion opposite that reached by the post-conviction 

court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). 

Further, the post-conviction court in this case made findings of 

fact and conclusions of law in accordance with Indiana PostConviction Rule 1(6). Although we do not defer to the postconviction court’s legal conclusions, “[a] post-conviction court’s 

findings and judgment will be reversed only upon a showing of 

clear error—that which leaves us with a definite and firm 

conviction that a mistake has been made.” Ben-Yisrayl v. State, 

729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).

Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to 

Campbell).
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Issue One: Breach of Plea Agreement

[6] Woodring contends that the State breached the plea agreement when it did not 

make certain that the trial court’s sentencing order and abstract of judgment 

included statements that he was not an SVP and that he would not be placed on 

parole because he “is required to leave the country.” Appellant’s Br. at 20. The 

post-conviction court concluded that Woodring’s allegations did “not fall into 

any of the categories enumerated” in Post-Conviction Rule 1. Appellant’s App. 

Vol. III at 103. On appeal, while Woodring states that it is “well established 

[he] may bring a breach of agreement [claim] under [Indiana Post-Conviction 

Rule] 1,” he does not direct us to any authority in support of that contention. 

Id. at 11.

[7] As this court has held,

the question of subject matter jurisdiction entails a determination 

of whether a court has jurisdiction over the general class of 

actions to which a particular case belongs. K.S. v. State, 849 

N.E.2d 538, 540 (Ind. 2006); see also M.B. v. State, 815 N.E.2d 

210, 214 (Ind. Ct. App. 2004). The only inquiry relevant to a 

determination of whether the post-conviction court had subject 

matter jurisdiction is whether the kind of claim advanced by a 

petitioner in the post-conviction court falls within the general 

scope of authority conferred upon that court by constitution or 

statute. In re K.B., 793 N.E.2d 1191, 1199 n.6 (Ind. Ct. App. 

2003). Moreover, subject matter jurisdiction cannot be waived 

and courts are required to consider the issue sua sponte if it is not 

properly raised by the party challenging jurisdiction. See Stewart 

v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d 542, 544 (Ind.

Ct. App. 2002); see also B.D.T. v. State, 738 N.E.2d 1066, 1068 

(Ind. Ct. App. 2000).
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Post-conviction relief is a product of the Indiana Supreme Court 

and is, therefore, entirely defined in scope by the post-conviction 

rules it has adopted. Samuels v. State, 849 N.E.2d 689, 691 (Ind.

Ct. App. 2006). Indiana Post-Conviction Rule 1(1)(a) provides 

that post-conviction relief is only available if the petitioner 

claims:

(1) that the conviction or sentence was in violation of 

the Constitution of the United States or the 

constitution or laws of this State;

(2) that the court was without jurisdiction to impose 

sentence;

(3) that the sentence exceeds the maximum 

authorized by law, or is otherwise erroneous;

(4) that there exists evidence of material facts, not 

previously presented and heard, that requires 

vacation of the conviction or sentence in the interest 

of justice;

(5) that his sentence has expired, his probation, 

parole or conditional release unlawfully revoked, or 

he is otherwise unlawfully held in custody or other 

restraint;

(6) that the conviction or sentence is otherwise 

subject to collateral attack upon any ground of 

alleged error heretofore available under any common 

law, statutory or other writ, motion, petition, 

proceeding, or remedy[.]

Members v. State, 851 N.E.2d 979, 981-82 (Ind. Ct. App. 2006).
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[8] On appeal, Woodring does not identify the subsection of Post-Conviction Rule 

1 that applies to his breach of plea agreement claims. And Woodring does not 

ask that his plea be set aside. See State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013) 

(stating motion to set aside guilty plea is treated as a petition for post-conviction 

relief). Rather, Woodring requests only that we order the trial court to correct 

the sentencing order and abstract of judgment to reflect both that he is not an 

SVP1 and that he is required to leave the country. We hold that the postconviction court did not have subject matter jurisdiction to consider 

Woodring’s breach of plea agreement claims, and we do not address them here. 

See Members, 851 N.E.2d at 981-82.

Issue Two: Illegal Sentence

[9] Woodring also contends that his sentence is illegal. In particular, Woodring 

maintains that, under Indiana Code Section 35-50-2-14(e), the enhancement for 

his repeat sexual offender status was limited to a maximum of four years. 

Thus, he asserts that the ten-year enhancement included in his plea agreement 

is illegal and cannot stand. Assuming for the purposes of this appeal that his 

sentence is illegal, the post-conviction court correctly declined to revise 

Woodring’s sentence.

 

1

 Woodring concedes that he is an SVP by operation of Indiana Code Section 35-38-1-7.5. Assuming he is 

correct, we note that changes to the sentencing order and abstract of judgment would not affect his SVP 

status. See, e.g., Stockert v. State, 44 N.E.3d 78, 82 (Ind. Ct. App. 2015) (holding that, in light of defendant’s 

SVP status by operation of law, neither plea agreement nor trial court could alter lifetime reporting period for 

SVPs), trans. denied.
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[10] Woodring acknowledges that “a defendant may not enter a plea agreement 

calling for an illegal sentence, benefit from that sentence, and then later 

complain that it was an illegal sentence.” Appellant’s Br. at 21-22 (quoting Lee 

v. State, 816 N.E.2d 35, 40 (Ind. 2004)). But Woodring contends that, because 

he did not know that the sentence was illegal when he entered into the plea 

agreement and thought that the ten-year enhancement was mandatory, we must 

reverse. In support of that contention, Woodring cites to this court’s vacated

opinion in Russell v. State, 11 N.E.3d 938 (Ind. Ct. App. 2014), and our opinion 

in Primmer v. State, 857 N.E.2d 11 (Ind. Ct. App. 2006), trans. denied.

[11] First, not only was Russell vacated, but our supreme court’s opinion on transfer 

does not support Woodring’s contention on this issue. See Russell v. State, 34 

N.E.3d 1223, 1228 (Ind. 2015). Second, Primmer likewise does not support 

Woodring’s contention. In Primmer, “although the State argued for, and the 

trial court imposed, an illegal sentence, the plea agreement itself did not call for an 

illegal sentence.” 857 N.E.2d at 18 (emphasis added). Here, Woodring agreed to 

the ten-year enhancement in his plea agreement, and he has benefited as a result 

of the illegal sentence.2

[12] Further, Woodring makes no claim that his guilty plea should be set aside. 

Rather, Woodring asks that we reduce his sentence. By agreeing to plead guilty 

to the C and D felonies in exchange for the State’s dismissal of an A felony, 

 

2

 In exchange for his plea, the State dismissed a Class A felony child molesting charge.
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Woodring reduced his penal exposure by decades. See Lee, 816 N.E.2d at 39-

40. Woodring does not contend that he would have taken his chances and gone 

to trial had he known that his sentence was illegal. See id. at 40. The postconviction court did not err when it denied his petition on this issue.

[13] Affirmed.

Riley, J., and Bradford, J., concur.