Court of Appeals of Indiana | Memorandum Decision 49A05

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### 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 Charles Kinnel Michigan City, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Charles Kinnel , Appellant

- Petitioner ,

v.


### State of Indiana , Appellee

- Respondent. August 17, 2018 Court of Appeals Ca se No. 49A05

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- 1892 Appeal from the Marion Superior Court The Honorable Grant W. Hawkins, Judge Trial Court Cause No. CR82156E

Bailey , Judge
.Court of Appeals of Indiana | Memorandum Decision 49A05

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# Case Summary

[1] Charles Kinnel (“Kinnel” ) brings this pro se appeal from the denial of his
motion to correct error , which related to the denial of his motion to correct a facially erroneous sentence pursuant to Indiana Code Section 35

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. Kinnel argues that the trial court abused its discretion by declining to correct the alleged sentencing error. We affirm.



# Facts and Procedural History

[2] In the 1980s, Kinnel was con victed of murder, r obbery, and conspiracy to

c ommit r obbery, and received an aggregate sentence of 110 years in prison

. Kinnel’s direct appeal was uns uccessful, but he later obtained post

- conviction relief that resulted in a vacat ed sentence with respect to the r obbery conviction. Kinnel eventually brought the instant motion to correct erroneous sentence, which the trial court denied

. The trial court then denied Kinnel’s motion to correct error. Although Kinnel initially filed a belated appeal that resulted in its dismissal, this Court reinstated the appeal upon Kinnel’s request.



# Discussion and Decision

[3] Generally, we review a ruling on a motion to correct error “only for abuse of discretion.” Becker v. State , 992 N.E.2d 697, 700 (Ind. 2013). “But when

. . . a motion to correct error depends on a question of law, we review the trial court’s resolution of that question de novo .” Id. In this case, t he motion to correct error involved the denial of a motion to c orrect erroneous sentence.Court of Appeals of Indiana | Memorandum Decision 49A05

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[4] Independent of pursuing a direct appeal or seeking post

- conviction relief, an individual may challenge his sentence by filing a motion to correct erroneous sentence in accordance with Indiana Code Section 35

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- 15. See Robinso n v. State , 805 N.E.2d 783, 786 (Ind. 2004). A court may grant the motion “only
when the sentence is erroneous on its face.” Id. (quot ation m arks omitted). That is, where “se ntencing errors

. . . are clear from the face of the judgment imposing the sentence in light of the statutory authority. ” Id. at 787. Thus , a motion to correct erroneous sentence is improper where it s resolution would require “reference to other matters in or extrinsic to the record.” Id. at 787

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[5] At bottom, Kinnel argues th at his sentence is erroneous due to double jeopardy principles. That is, Kinnel asserts that his conspiracy to commit robbery conviction was elevated to a Class A felony because of the same act of murder supporting his m urder conviction , in violation of h is rights

. Yet , evaluating a claim of double jeopardy requires reference to offense

- specific facts that are not apparent from the face of the judgment. See, e.g. , Richardson v. State , 717 N.E.2d 32, 50

- 55 (Ind. 1999) ( articulating tests for double jeopardy). Kinnel attempts to escape this issue by arguing that the trial court should have entered a more specific judgment showing that he was convicted of “murder in the commission of robbery ” instead of just “show[ing] that he was co nvicted of murder.” Appellant’s Br. at 7 (emphasis added). Yet, even if the judgment contained the additional language Kinnel suggests, the re would still be no facially apparent violation of double jeopardy principles. Rather , to evaluate alleged error of this
nature, the trial court would need to examine the facts supporting the murderCourt of Appeals of Indiana | Memorandum Decision 49A05

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conviction and the elevation, including whether there were separate victims

. See id. at 56 (Sullivan, J. , concurring) ( articulating th e analysis for a double jeopardy cl aim involving an enhancement “ for the very same behavior or harm as another crime for which the defendant has been convicted and punished,” in which case no relief would be provided “where separate victims are involved”).

[6] Ultimately, b ased upon Kinnel’s motion to correct erroneous sentence , Kinnel would be entitled to relief only after consideration of the merits of his claim of double jeopardy

— an allegation of error that cannot be addressed by referring only to the face of the judgment

. Thus, the trial court could not have properly corrected Kinnel’s sentence upon a motion to correct erroneous sentence

. See Robinson , 805 N.E.2d at 787 (“[T]he ‘facially erroneous’ prerequisite should henceforth be strictly applied.”) ; see also Micheau v. State , 74 N.E.3 d 567 (Ind. Ct. App. 2017) (vacating the trial court’s grant of relief on double jeopardy grounds where the double jeopardy issue was raised in a motion to correct erroneous sentence) , trans. denied

. 1 Accordingly, the trial court did not abuse its discret ion by de nying Kinnel’s motion to correct error and underlying motion.

1 Directing us to Woodcox v. State , 30 N .E.3d 748 (Ind. Ct. App. 2015) , Kinnel asserts that a court may nevertheless look beyond the face of the judgment when doing so serve s the interest s of justice

. However, Kinnel’s reliance on Woodcox is misplaced. There, t his Court looked beyond a facially defective sentencing judgment to prevent a n unjust “sentencing windfall”

—where the facial defect arose from a clerical error showing a conviction for a Class B felony instead of the actual Class A felony

. See Woodcox , 30 N.E.3d at 752

- 53. Nonetheless, it is not as though Kinnel lacks a procedural vehicle to pursue his claim, as he may seek authorization to file a successive petition for post

- conviction relief. See Ind. Post

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[7] Affirmed.

Mathias, J., and Bradford, J., concur.