Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1951 | May 31, 2016 Page 1 of 13

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.

ATTORNEY FOR APPELLANT

Jeffrey W. Elftman

Bolinger Law Firm

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandy G. Hoebee,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 31, 2016

Court of Appeals Case No.

34A04-1511-CR-1951

Appeal from the Howard Superior 

Court

The Honorable George A. 

Hopkins, Judge

Trial Court Cause Nos.

34D04-1109-FC-151

34D04-1305-FD-69

34D04-1306-FD-104

34D04-1309-FB-156

Brown, Judge.
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[1] Brandy G. Hoebee appeals the trial court’s order denying her motion to correct 

credit time. Hoebee raises three issues which we consolidate and restate as 

whether the trial court abused its discretion in denying her motion. We affirm

in part, reverse in part, and remand. 

Facts and Procedural History

[2] On February 10, 2012, the trial court entered judgment of conviction under 

cause number 34D04-1109-FC-151 (“Cause No. 151”) for two counts of forgery 

as class C felonies and sentenced Hoebee on each count to concurrent sentences 

of six years with two years executed on in-home detention, the balance 

suspended to supervised probation, and credit for 150 actual days served 

awaiting disposition. 

[3] On July 19, 2013, the State filed a petition to revoke suspended sentence under 

Cause No. 151 and alleged that Hoebee failed to report to the probation 

department and failed to timely inform her probation officer of the charges filed 

in cause number 34D04-1305-FD-69 (“Cause No. 69”) and cause number 

34D04-1306-FD-104 (“Cause No. 104”). On March 14, 2014, the court entered 

a sentencing order on the State’s petition to revoke probation under Cause No. 

151 and found that Hoebee violated the terms of probation. Specifically, the 

order states: 

Defendant’s suspended sentence in the amount of 1,462 days is 

revoked and ordered served in the Howard County Criminal 

Justice Center. Defendant is given credit for time on in-home 

[detention] from 10/2/2012 to 10/17/12 for a total of (15) days. 

(no credit for day credit is given for this time) Defendant is 
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further given credit for time served in jail from 10/18/2012 to 

11/15/2012 for a total of (29) days and further given credit from 

7/24/13 to 3/13/14 for a total of (233) days for a grand total of 

jail credit of 262 actual days (day for day credit given). 

Defendant is further given credit for 176 days served on 

probation.

Appellant’s Appendix at 40.

[4] On October 10, 2014, the court entered a sentencing order under Cause Nos. 

69, 104, and 34D04-1309-FB-156 (“Cause No. 156”). Specifically, the court 

sentenced Hoebee to two years with one year executed and 365 days suspended 

to supervised probation for theft as a class D felony under Cause No. 69, to two 

years with one year executed and 365 days suspended to supervised probation 

for theft as a class D felony under Cause No. 104, and to three years executed 

for possession of a narcotic drug as a class D felony under Cause No. 156. The 

court gave Hoebee credit for time served in Cause No. 104 in the amount of 475 

actual days or 950 days with day for day credit, and ordered that all three 

causes run consecutive to each other. 

[5] On December 2, 2014, the court entered an amended sentencing order which 

listed Cause No. 104 in the caption, stating:

Court finds that at the time of this sentencing, the Defendant was 

serving a sentence and given jail credit in Cause No. [151]. 

Therefore, the jail credit in this cause should be amended to read 

the Defendant is given credit for time served only from June 23, 

2013 to July 24, 2013 in the amount of Thirty Two (32) actual 

days or Sixty Four (64) days with day for day credit.
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Further the sentences in Cause [Nos. 69, 104, and 156] should 

run consecutive to each other as well as consecutive to [Cause 

No. 151].

Id. at 94.

[6] On July 30, 2015, Hoebee filed a motion to correct credit time under Cause No. 

151 and Cause No. 104. She requested that the court issue an amended abstract 

of judgment under Cause No. 151 and “amend Part III, line 3 to read: 

Incarceration, 7/24/2013, 10/10/2014, 444, 888.” Id. at 43, 97. 

[7] On September 25, 2015, the court held a hearing, and Hoebee’s counsel stated:

Ms. Hoebee was serving a sentence that was pending sentencing 

under two cause numbers. At one point the defendant was 

sentenced, the credit time was applied, an error was made in that 

Ms. Hoebee received credit time under a probation violation and 

a new case, in violation of the statute. The court, some months 

later, I believe in October of ’14, caught the issue and corrected 

it. However, when the court submitted the updated abstract, the 

Amended Abstract of Judgment correcting the issue, it included 

the date to report to incarceration as the date of the correction 

and not the date of the original sentence, which caused the 

Department of Correction to deprive Ms. Hoebee, if I can reflect 

here in my motion, 211 days of credit time was excised because 

the correction did not reflect the original sentencing date in 

March and instead contained the October date. So by the 

correction in that missed date, the DOC calculated the credit 

time and removed credit on both causes from March 14th, 2014 

to October 14th, 2014, giving neither credit towards the 

probation violation nor the felony charge for which she was 

sentenced to the Department of Corrections. The error can be 

corrected, Your Honor, by an Amended Abstract of Judgment 
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under [Cause No. 104], correcting report date to incarceration 

not 12/2 of 2014, but March 14th of –

Transcript of September 25, 2015 Hearing at 5-6. The trial court asked what 

correction he was requesting, and Hoebee’s counsel stated:

There are two possible options. One would be to change Part 4 

of the abstract to read the report date for incarceration of not 

12/2 of ‘14 but to read 3/14 of ‘14. . . [o]r, to change Part 3, to 

incarceration credit dates of confinement prior to sentencing to 

not 32 actual days –

Id. at 6-7. The trial court asked “Change Part 3 to?” Id. at 7. Hoebee’s counsel 

replied: “Removing the 32 actual days and making that 243 actual days, thereby 

crediting the defendant for the 211 days that were missed.” Id. at 7. On 

October 29, 2015, the court denied Hoebee’s motion. 

Discussion

[8] Hoebee appears to argue that she was confined on all four cause numbers for a 

considerable amount of overlapping time and that the court erred in failing to 

award her credit time under each cause number. She concedes that her plea 

called for consecutive sentences, but asserts that there was no statutory 

requirement that such sentences be consecutive and that she should be entitled 

to a full credit for her presentence confinement. In other words, she asserts that 

she is entitled to credit time under each cause number “due to the fact that the 

above cases are not mandatorily consecutive.” Appellant’s Brief at 11. 
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[9] She argues that “when reviewing the final Abstracts of Judgment, it appears the 

time [she] spent incarcerated at the Howard County Criminal Justice Center 

from March 13th, 2013 until October 10th, 2013 was not applied to any of the 

four cause numbers.”1 Id. She also asserts that she was placed on home 

detention until her arrest on October 17, 2012, for non-compliance and that 

“[a]ccording to records of the home detention office [she] was scheduled for 

release from home detention on October 6th, 2012.” Id. at 13. She states that 

she satisfied her original home detention sentence on October 6, 2012, but 

remained on home detention until her arrest on October 17, 2012, and that she 

is entitled “to good time credit applied to her sentence for this additional time 

spent deprived of liberty.” Id. 

[10] She argues that her plea agreement and the February 10, 2012 order called for a 

suspended sentence of four years, but the March 14, 2014 order revoking her 

probation and her suspended sentence in the amount of 1,462 days was two 

days greater than four years. The State concedes that Hoebee is correct that the 

court’s calculation was erroneous, and asserts that the court should have 

imposed “1,461 days (365 days x 4 + 1 day for the leap year).” Appellee’s Brief 

at 13. However, the State says this issue is moot because Hoebee has already 

 

1 Hoebee references the same months from 2014 in the next sentence in her brief. Specifically, she states that 

“credit for time spent incarcerated for the two hundred eleven (211) days between sentencing under [Cause 

No. 151] in March of 2014, and the final sentencing resolving the remaining issues in October of 2014, must 

be applied to at least one of her sentences.” Appellant’s Brief at 12.
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completed her sentence. In her reply brief, Hoebee asserts that the issue is not 

moot and cites to an amended abstract of judgment. 

[11] Initially, we note that Hoebee’s motion to correct credit time is tantamount to a 

motion to correct erroneous sentence.2 Generally, we review a trial court’s 

decision on a motion to correct erroneous sentence only for an abuse of 

discretion. 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.

[12] An inmate who believes she has been erroneously sentenced may file a motion 

to correct the sentence pursuant to Ind. Code § 35-38-1-15. Neff v. State, 888 

N.E.2d 1249, 1250-1251 (Ind. 2008). Ind. Code § 35-38-1-15 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.

[13] In Robinson v. State, the Indiana Supreme Court noted that a motion to correct 

erroneous sentence is available only when the sentence is “erroneous on its 

face.” 805 N.E.2d 783, 786 (Ind. 2004) (citations omitted). The Court 

 

2

Indeed, Hoebee’s brief mentions a “motion to correct erroneous sentence” in her standard of review. 

Appellant’s Brief at 9.
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emphasized that “a motion to correct an erroneous sentence may only arise out 

of information contained on the formal judgment of conviction . . . .” Neff, 888 

N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A motion to correct 

erroneous sentence may only be used to correct sentencing errors 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. Claims that require consideration of 

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

motion to correct erroneous sentence. Id. Sentencing claims that are not 

facially apparent “may be raised only on direct appeal and, where appropriate, 

by post-conviction proceedings.” Id. “Use of the statutory motion to correct 

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

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

strictly applied . . . .” Id. The Court also held that the “sentence” that is subject 

to correction under Ind. Code § 35-38-1-15 “means the trial court’s judgment of 

conviction imposing the sentence and not the trial court’s entries on the 

Department of Correction’s abstract of judgment form.” Id. at 794.

[14] With respect to Hoebee’s arguments which rely upon the home detention 

records, her plea agreement, and parts of the record other than the judgments of 

conviction, resolution of these issues would require consideration of factors 

outside of the face of the judgments. To address these claims would require a 

consideration of proceedings before, during, or after her sentencing. Thus, 

these arguments are not properly presented by way of a motion to correct 

erroneous sentence. We cannot say that the trial court abused its discretion by 
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denying her motion on this basis. See Jackson v. State, 806 N.E.2d 773, 774 (Ind. 

2004) (holding that the trial court properly denied the defendant’s motion to 

correct erroneous sentence and noting that a motion to correct erroneous 

sentence is available only to correct sentencing errors clear from the face of the 

judgment).

[15] To the extent Hoebee requested that the court issue an amended abstract of 

judgment and cites to the abstracts of judgment on appeal, we observe that a 

motion to correct erroneous sentence is not the proper vehicle. See Robinson, 

805 N.E.2d at 794 (holding that the “sentence” that is subject to correction 

under Ind. Code § 35-38-1-15 “means the trial court’s judgment of conviction 

imposing the sentence and not the trial court’s entries on the Department of 

Correction’s abstract of judgment form,” that “a motion to correct sentence 

may not be used to seek corrections of claimed errors or omissions in an 

abstract of judgment,” and that “[b]ecause the defendant is seeking correction 

of the abstract of judgment in his case, there is no error in denying the 

defendant’s motion to correct sentence”).3

 

3

In Neff, the Indiana Supreme Court observed that it “emphasized in Robinson that a motion to correct an 

erroneous sentence may only arise out of information contained on the formal judgment of conviction, and 

not from an abstract of judgment.” Neff, 888 N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). The 

Court then held that “when a defendant files a motion to correct an erroneous sentence in a county that does 

not issue judgments of conviction (we are currently aware only of Marion County), the trial court’s abstract 

of judgment will serve as an appropriate substitute for purposes of making the claim.” Id. We note that the 

trial court in Howard County entered judgments of conviction in this case.
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[16] We will address Hoebee’s arguments to the extent they are based on the face of 

the judgments. With respect to her argument that the court ordered that she

serve two extra days, we note that the February 10, 2012 sentencing order in

Cause No. 151 sentenced her in part to four years suspended to probation, and 

the March 14, 2014 sentencing order on the State’s petition to revoke probation 

under Cause No. 151 stated that Hoebee’s “suspended sentence in the amount 

of 1,462 days is revoked and ordered served in the Howard County Criminal 

Justice Center.” Appellant’s Appendix at 40. Four years consists of 1,460 days

and 2016 is a leap year. As the State concedes, the trial court should have 

sentenced Hoebee to 1,461 days. Based upon the record, we cannot determine 

whether Hoebee has completed her sentence and decline to dismiss this 

argument as moot. Accordingly, we remand to the trial court to enter a revised 

judgment of conviction ordering that Hoebee serve her suspended sentence of 

1,461 days. 

[17] To the extent the faces of the judgments indicate that the court did not award 

Hoebee credit for time served under Cause No. 151 in the other cause numbers

as well, we cannot say that reversal is required on this basis. We find Lanham v. 

State, 540 N.E.2d 612 (Ind. Ct. App. 1989), trans. denied, instructive. In that 

case, Donny Lanham was convicted of child molesting and criminal 

confinement. 540 N.E.2d at 612-613. The court sentenced him to ten years for 

child molesting with no credit time to be served consecutive to five years for 

confinement. Id. at 613. The court applied 379 days of credit time against the 

five-year sentence for confinement, corresponding to Lanham’s pre-trial time in 
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jail. Id. On appeal, Lanham argued that the court failed to give him 379 days 

credit on both counts for which he was sentenced. Id. We rejected Lanham’s 

argument that credit time is applied against the aggregate sentence only where 

the sentences are mandatorily consecutive. Id. at 613-614. Specifically, we 

held:

Lanham confines his argument to the trial court’s failure to give 

him 379 days credit on both counts for which he was sentenced. 

This precise issue was squarely decided in Simms v. State (1981), 

Ind. App., 421 N.E.2d 698. That holding is adverse to Lanham’s 

position. Simms also had received consecutive sentences, but 

was awarded credit time under only the first sentence. The court 

held that where a defendant is confined during the same time 

period for multiple offenses for which he is convicted and 

sentenced to consecutive terms, credit time is applied against the 

aggregate sentence, not against each individual sentence. Simms, 

id. The court observed that if credit were given against each 

sentence, defendant would receive a “double” credit, which 

would result in a defendant who posted bail serving more total 

time than the defendant who had not posted bail. Id. at 702.

Lanham attempts to distinguish Simms, asserting that Simms’ 

sentence was mandatorily consecutive, unlike his sentence, 

which the trial court had ordered to run consecutive in its 

discretion, utilizing statutory guidelines. Lanham reasons that a 

defendant charged with two offenses for which the court would 

be required to make consecutive upon conviction would be 

apprised in advance that he would only receive credit against the 

aggregate of those sentence. He also argues that a court ordering 

consecutive sentences in its discretion is retroactively removing 

credit time on two offenses already earned. We find little merit 

in Lanham’s argument; the issue is not whether defendant may 

or may not anticipate receiving consecutive sentences, but 

whether defendant may be assured how his credit time will be 
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applied for any given outcome. Our cases remove any doubt 

with respect to how credit time will be applied. Lanham should 

not have expected to receive[] “double” credit; therefore, no 

credit time was “retroactively removed.” The trial court has not 

abused its discretion in sentencing Lanham.

Id. 

[18] To the extent Hoebee argues that credit time was required to be applied to all 

four of her sentences on the basis that the sentences were not statutorily 

required to be served consecutively, we cannot say that reversal is warranted. 

See Lanham, 540 N.E.2d at 613-614; see also Shane v. State, 716 N.E.2d 391, 399-

400 (Ind. 1999) (rejecting the defendant’s argument that his sentence was 

incorrectly calculated when the trial court failed to reduce each of his sentences 

by the 775 days he spent in prison prior to conviction, observing that he was 

sentenced in part to sixty years with four years suspended for murder and eight 

years for feticide consecutive to his murder charge, holding that “[w]here a 

defendant is convicted of multiple offenses and sentenced to consecutive terms, 

the jail credit is applied against the aggregate sentence,” and also holding that 

the trial court properly applied the jail credit against the aggregate sentence) 

(citing Lanham, 540 N.E.2d at 613).

Conclusion

[19] For the foregoing reasons, we reverse the denial of Hoebee’s motion to correct 

credit time with respect to the court’s March 14, 2014 order that Hoebee serve 

1,462 days instead of 1,461 days, remand for the entry of a corrected judgment 

of conviction, and affirm the denial in all other respects. 
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[20] Affirmed in part, reversed in part, and remanded.

Baker, J., and May, J., concur.