Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 743 | August 23, 2019 Page 1 of 5



### 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 , P RO S E Nathan Hummel Westville, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Nathan D. Hummel , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. August 23, 2019 Court of Appeals Ca se No. 19A

- CR

- 743 Appeal from the Starke Circuit Court The Honorable Kim Hall, Judge Trial Court Cause No. 75C01

- 1112

- FA

- 15

Pyle , Judge .Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 743 | August 23, 2019 Page 2 of 5 

### Statement of the Case

[1] Nathan Humm el (“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 se ntence, arguing that the plea agreement d id not spe cify 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, w e c onclud e 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 C ount 1 and Count s 2, 3 , and 4. In exchange, the State agreed to amend Count 1 from a Class A felony to aCourt of Appeals of Indiana | Memorandum Decision 19A

- CR

- 743 | August 23, 2019 Page 3 of 5

Class B felony and to dismiss Counts 5 and 6

. The plea agreement provided that “[t]he sentences in c o unt 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 C ount 1 , ten (10) years for C ount 2 , ten (10) years for Count 3 , and two (2) years for C ount 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 challenge d the trial court’s imposition of

am ended 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 circum sta nces 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 I ND IANA C ODE § 35

- 38

- 1

- 1 5. Neff v. State , 888 N.E.2d 1249, 1250

- 51 (Ind. 2008)

. I ND IANA C ODE § 35

- 38

- 1

- 15 provides:Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 743 | August 23, 2019 Page 4 of 5

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 m otion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sente nce. “The purpose of the statute ‘is to provide prompt, direct access to an uncomplicated legal process for correct ing the occasional erroneous or illegal sentence.’” Robinson v. State , 805 N.E.2 d 783, 78 5 (Ind. 2004) (quoting Gaddie v. State , 566 N.E.2d 535, 537 (Ind. 1991)).

[8] A statu tory motion to correct erroneous sentence “may only be used to correct sentencing er rors 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 r equires 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 confi ned 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 Count s 2, 3, and 4. Specifically, he argues that hisCourt of Appeals of Indiana | Memorandum Decision 19A

- CR

- 743 | August 23, 2019 Page 5 of 5

“plea agreement does NOT call for consecutive sentences [.]” (Hummel’s Br. 6). We agree with the State that r esolution of this issue “ require d the tri al court to consider the proceedings before trial becaus e he asked the court to compar e his plea agreement to his sentence. ” (State’s Br. 6). Because t he error Hummel alleges is not clear from the fac e 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 ., B auer 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 judg ment and were, accordingly, not the type s of claims properly presented in a motion to correct erroneous sentence), trans
. denied

.
[10] Affirmed.

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