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: ATTORNEYS FOR APPELLEE:

JOHN CHUPP GREGORY F. ZOELLER

Pendleton, Indiana Attorney General of Indiana

ANDREW FALK

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JOHN CHUPP, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1206-CR-328

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Sheila A. Carlisle, Judge

Cause No. CR82-81A (82002401)

December 20, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
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STATEMENT OF THE CASE

Appellant-Defendant, John Chupp (Chupp), appeals the trial court’s denial of his 

motion to correct erroneous sentence. 

We affirm.

ISSUE

Chupp raises one issue on appeal which we restate as: Whether the trial court 

properly denied his motion to correct erroneous sentence. 

FACTS AND PROCEDURAL HISTORY

For the recitation of the facts we rely on our supreme court’s opinion in Chupp’s 

direct appeal:

At trial the evidence showed that L.M., a 72-year-old widow, was 

awakened around 11:30 p.m. on July 10, 1982 by three men who crashed 

through her bedroom door. They demanded to know where her money was 

kept, and she told them it was downstairs. One of the men found her purse 

but it contained only thirty-one dollars. To force her to reveal the location 

of the rest of her money, one of the men burned her hand with a cigarette 

lighter. L.M. tried to explain that she had just returned from vacation and 

that thirty-one dollars was all she had. One of the men directed the other 

two to ransack the house. The remaining man raped L.M. and then one of 

the men sodomized her.

The men bound and gagged L.M. and finished searching the house. The 

victim was not found until noon the following day when her son-in-law 

discovered her. An ambulance transported her to a hospital where a 

medical examination revealed that L.M. had suffered bruises, lacerations, 

blisters, and swelling. She lost her purse with thirty-one dollars, her lock 

box containing personal papers and silver coins, and her maroon car.

Chupp v. State, 509 N.E.2d 835, 836 (Ind. 1987). Chupp was identified as one of 

the perpetrators. Id. On July 10, 1982, the State charged Chupp with burglary, a 

Class A felony; two Counts of rape, Class A felonies; two Counts of criminal 
3

deviate conduct, Class A felonies; robbery, a Class A felony; and criminal 

confinement, a Class B felony. At the conclusion of Chupp’s jury trial, he was 

found guilty of burglary, a Class A felony; robbery, a Class A felony; and criminal

confinement, a Class B felony. The trial court sentenced Chupp to concurrent 

fifty-year sentences for each Class A felony and to twenty years for the Class B 

felony, to run consecutive to the Class A felonies, for an aggregate sentence of 

seventy years. After pursuing a direct appeal, Chupp’s convictions and sentences 

were affirmed by our supreme court. See id.

On two separate occasions, Chupp filed a petition for post-conviction relief, 

each of which was withdrawn without prejudice. On April 24, 2007, Chupp filed 

a third petition for post-conviction relief, asserting newly discovered evidence and 

claiming that his sentence was erroneous because the robbery and burglary 

convictions were enhanced based on the same injuries. The post-conviction court 

denied his petition. On appeal, we denied most of Chupp’s claims but concluded 

that the elevation of both the burglary and robbery count to Class A felonies was 

based on the same injuries and thus violated the principles of double jeopardy. 

See Chupp v. State, 933 N.E.2d 586,*5 (Ind. Ct. App. 2010) (unpublished 

opinion). We vacated Chupp’s conviction for robbery as a Class A felony and 

directed the post-conviction court to enter judgment on the robbery conviction as a 

Class C felony and to resentence him accordingly. See id. at *10. On January 20, 

2011, the trial court modified Chupp’s Class A felony robbery conviction to a 

Class C felony, vacated the fifty year sentence and imposed an eight year sentence 
4

to run concurrent to the fifty year sentence of the Class A felony burglary 

conviction, and consecutive to the twenty year sentence for the Class B felony 

criminal confinement, for an aggregate sentence of seventy years. 

On June 13, 2012, Chupp filed a motion to correct erroneous sentence,

alleging that his conviction for both robbery, a Class C felony, and criminal 

confinement, a Class B felony, violated the double jeopardy doctrine. The trial 

court denied Chupp’s motion on the same day.

Chupp now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Chupp contends that the trial court abused its discretion by denying his motion to 

correct erroneous sentence. When reviewing a trial court’s ruling on a motion to correct 

erroneous sentence, we defer to the trial court’s factual findings and review its decision 

only for an abuse of discretion. Newson v. State, 851 N.E.2d 1287, 1289 (Ind. Ct. App. 

2006). We review its legal conclusions de novo. Id.

Our supreme court discussed the legal significance of a motion to correct 

erroneous sentence at length in Robinson v. State, 805 N.E.2d 783 (Ind. 2004). In 

Robinson, the court noted that a motion to correct sentence derives from Indiana Code 

section 35-38-1-15 and its purpose is to provide prompt, direct access to an 

uncomplicated legal process for correcting the occasional erroneous or illegal sentence. 

Id. at 785. Such a motion may only be used to correct erroneous sentencing errors that 

are clear from the face of the judgment imposing the sentence in light of the statutory 

authority. Id. at 787. Claims that require consideration of the proceedings before, 
5

during, or after trial may not be presented by way of a motion to correct sentence. Id. at 

787. 

Chupp relies on Robinson to support his argument that a double jeopardy claim 

can be addressed in a motion to correct erroneous sentence. However, Chupp 

mischaracterizes the Robinson court’s holding. In analyzing the applicability of a motion 

to correct erroneous sentence, the court observed that it had in Mitchell v. State, 726 

N.E.2d 1228, 1243 (Ind. 2000) “addressed a double jeopardy claim presented by a motion 

to correct sentence.” Robinson, 805 N.E.2d at 787. But, the Robinson court clearly 

rejected this approach in Mitchell, noting that “[u]se of the statutory motion to correct 

sentence should [] be narrowly confined to claims apparent from the face of the 

sentencing judgment, and the ‘facially erroneous’ prerequisite should henceforth be 

strictly applied, notwithstanding . . . Mitchell.” Id. 

Accordingly, when strictly construing the application of a motion to correct 

erroneous sentence, we must necessarily affirm the trial court’s denial of Chupp’s 

motion. A double jeopardy claim is a challenge to the validity of a defendant’s 

conviction, not to the validity of a sentence. See, e.g., Mapp v. State, 770 N.E.2d 332, 

334 (Ind. 2002). In its review of a perceived double jeopardy violation, a court must 

analyze the elements of the offense and the evidence used to establish those elements. 

See Richardson v. State, 717 N.E.2d 32, 50-53 (Ind. 1999). It is clear that such a review 

would surpass the mere sentencing error that is clear from the face of the judgment and 

would require us to consider the charging information and proceedings during trial. We 

affirm the trial court. 
6

CONCLUSION

Based on the foregoing, we affirm the trial court’s denial of Chupp’s motion to 

correct erroneous sentence.

Affirmed.

BAKER, J. and BARNES, J. concur