Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019 Page 1 of 9

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

Shawn Twitty

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Shawn Twitty,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 13, 2019

Court of Appeals Case No.

19A-CR-500

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner, 

Judge

Trial Court Cause No. 

49G06-9503-CF-33600 

Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019 Page 2 of 9

Statement of the Case

[1] Shawn Twitty appeals from the denial of his motion to correct erroneous 

sentence, contending that the doctrine of amelioration applies. Finding that

Twitty has already challenged his consecutive sentences, raising the same issue 

several times, we affirm the decision of the trial court, rejecting his most recent 

challenge.

Issue

[2] Twitty presents the following issue which we restate as the following question: 

Did the trial court err by denying Twitty’s motion to correct erroneous 

sentence?

Facts and Procedural History

[3] In a memorandum decision, a panel of this court affirmed Twitty’s convictions 

of three counts of attempted murder, each as a Class A felony, and one count of 

carrying a handgun without a license, a Class A misdemeanor, and affirmed the

trial court’s sentencing decision. Twitty v. State, No. 49A05-9601-CR-16, slip 

op. at 2-3 (Ind. Ct. App. Aug. 18, 1997), trans. denied (“Twitty I”). The facts 

recited in the direct appeal follow:

On the night of March 4, 1995, Garcia Scott, Chabwera

Underwood, and Craig Mushatte went with a group of friends to 

the Barritz Nightclub in Indianapolis. While they were there, a 

fight broke out between the group and Shawn Twitty and his 

friends. After the two groups were ejected from the club, the 

fight continued in the parking lot, where Scott and Underwood 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-500 | November 13, 2019 Page 3 of 9

were both shot in the head. Scott was permanently blinded as a 

result of the shooting and Underwood suffered irreversible 

memory loss and motor skills impairment.

At Twitty’s jury trial, Mushatte testified that he saw Twitty 

remove a gun from the trunk of a car and shoot it at Mushatte, 

Scott, and Underwood. Mushatte testified that he believed the 

weapon was a nine millimeter gun. Twitty and others left in the 

car from which Twitty had removed the gun. The car was later 

found at Twitty’s residence. Police at the crime scene found a 

spent bullet jacket which a ballistics expert testified was fired 

from a nine millimeter gun. Two days later, Mushatte identified 

Twitty in a photo array as the person who fired the gun.

Twitty received forty-five year sentences on each of the three 

attempted murder counts and a one year sentence on the fourth 

count, carrying a handgun without a license. The sentences for 

counts I and II were to be served consecutively, and the sentences 

on counts II and IV were to be served concurrently with the 

sentences for counts I and II. 

[4] Twitty filed a petition for post-conviction relief on November 9, 1998. After 

amendments by counsel, among the issues presented to the post-conviction 

court was that appellate counsel did not argue on direct appeal that the trial 

court erred in imposing consecutive sentences. The post-conviction court 

denied Twitty’s petition, and the denial was affirmed on appeal. Twitty v. State, 

49A02-0503-PC-199 (Ind. Ct. App. Sept. 13, 2005) (“Twitty II”). 

[5] On January 28, 2019, Twitty moved to correct erroneous sentence, raising the 

doctrine of amelioration in support of that motion. His motion was denied and

this appeal ensued.
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Discussion and Decision

[6] Twitty challenges the denial of his motion to correct erroneous sentence, in 

which he cited Indiana Code section 35-38-1-15 (1983), which provides as 

follows:

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.

[7] Our Supreme Court has stated that the purpose of the statute “is to provide 

prompt, direct access to an uncomplicated legal process for correcting the 

occasional erroneous or illegal sentence.” Robinson v. State, 805 N.E.2d 783, 

785 (Ind. 2004) (citation omitted). A motion to correct erroneous sentence is 

appropriate only when the sentencing error is “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, during, or after 

trial may not be presented by way of a motion to correct erroneous sentence. 

Davis v. State, 937 N.E.2d 8, 11 (Ind. Ct. App. 2010), trans. denied. Such claims 

should instead be addressed on direct appeal or through post-conviction relief. 

Robinson, 805 N.E.2d at 787. A motion to correct erroneous sentence is a 

narrow remedy, and a reviewing court will strictly apply the requirement of a 

facially erroneous sentence. Id.
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[8] On appeal, we review a trial court’s denial of a motion to correct erroneous 

sentence for an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. 

App. 2012). 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. 

[9] In the direct appeal of his convictions and sentencing, a panel of this court

addressed Twitty’s challenge to his sentence, which included an argument that 

the trial court erred by imposing consecutive forty-five year sentences for two of 

the attempted murder counts. Twitty’s argument on direct appeal, as pertained

to his sentence, specifically referred to Indiana Code section 35-50-1-2(c), 

limiting the total of the consecutive terms of imprisonment for felony 

convictions arising out of a single episode of criminal conduct. The exceptions 

listed in the subsection of the statute included murder and felony convictions 

for which an enhanced sentence is imposed because the defendant knowingly 

and intentionally caused serious bodily injury to the victim. Twitty argued, 

without citation to authority, that because attempted murder is a crime separate 

from murder, and, thus not among the statutory exceptions, he could not be 

sentenced to a term of more than fifty years, which was the presumptive 

sentence for murder at the time. See Ind. Code § 35-50-2-3 (1994).

[10] Instead of deeming the issue waived for failure to cite to authority, we 

considered the argument and reviewed case law, ultimately concluding that the 

statutory reference to murder convictions necessarily included attempted 

murder convictions as exempt from consecutive sentencing limitations. Twitty

I, slip op. at 5-7. 
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[11] In 1998, Twitty filed a petition for post-conviction relief. After amendments by 

counsel, among the issues presented to the post-conviction court was whether 

Twitty had received ineffective assistance of trial and appellate counsel. On 

January 12, 2005, the post-conviction court denied the petition.

[12] Next, Twitty appealed the denial of his petition for post-conviction relief. As 

respects his sentencing challenges, Twitty presented those arguments in his 

claim of ineffective assistance of appellate counsel. Shortly after our decision in 

Twitty’s direct appeal, our Supreme Court handed down a case discussing how 

to treat consecutive sentencing in attempted murder cases. See Greer v. State, 

684 N.E.2d 1140 (Ind. 1997). 

[13] Greer defined the steps to be taken in analyzing whether consecutive sentences 

are warranted under the sentencing statute in effect at that time. The first step 

is to identify the presumptive sentence for the felony that is one class higher 

than the most serious felony with which the defendant was charged. 684 

N.E.2d at 1142. Murder is the next highest offense, therefore, the presumptive 

sentence is fifty years. Regarding Greer’s convictions for three counts of 

attempted murder and one count of criminal deviate conduct, for which 

consecutive sentences were imposed, the next step is to determine if the 

defendant received an enhanced penalty because the felony resulted in serious 

bodily injury, and, if so, did the defendant knowingly or intentionally cause the 

serious bodily injury. Id. 
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[14] In Twitty’s case, the trial court enhanced all three attempted murder 

convictions to forty-five years based in pertinent part on the seriousness of the 

crime. Twitty I, slip op. at 8. We found that the evidence was sufficient to 

support Twitty’s conviction, which meant that his conduct was done knowingly 

and intentionally. Id. at 5. The specific circumstances of the crime, beyond 

that which is needed to support an attempted murder conviction, establish that 

the enhanced penalty was imposed because the felony resulted in serious bodily 

injury. Scott was permanently blinded because of the shooting and Underwood 

suffered irreversible memory loss and motor skills impairment.

[15] Twitty argued in his petition that appellate counsel should have cited to Greer in 

the petition to transfer filed in his case. When reviewing this argument, we 

noted that the Supreme Court reached the same conclusion as did our court in 

Twitty’s direct appeal, but reached that conclusion applying a different 

rationale. After reciting Twitty’s burden of establishing the claim and the 

deference afforded to appellate counsel’s choice of which issues to raise on 

appeal, we concluded that appellate counsel was not ineffective. Twitty II, slip

op. at 17-19. Citation to Greer would not have provided Twitty the sentencing 

relief he was seeking. 

[16] Twitty argues that his consecutive sentences for two of the attempted murder 

counts is erroneous on the face of the sentencing order. The State contends 

that: (1) the sentencing order is not erroneous on its face; (2) the doctrine of 

amelioration is inapplicable; and (3) Twitty’s claim is barred by res judicata. 

We have considered each of the arguments presented by the parties and 
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conclude that the dispositive argument is that Twitty’s claim is barred by res 

judicata. Thus, the trial court did not err in denying the motion.

[17] Twitty’s support for his motion to correct erroneous sentence is his claim that 

the consecutive sentences for two of his three attempted murder convictions 

constituted an erroneous sentence under the doctrine of amelioration and his 

citation to the timing of amendments to Indiana Code section 35-50-1-2 and 

case law addressing how to treat attempted murder convictions for purposes of 

consecutive sentencing.

[18] Twitty unsuccessfully challenged his consecutive sentences on direct appeal and

transfer was denied by the Supreme Court. Twitty unsuccessfully challenged 

his consecutive sentences in a petition for post-conviction relief. This Court 

affirmed the denial of Twitty’s petition. Further, Twitty challenged his 

consecutive sentences in a motion to correct erroneous sentence. 

[19] “Res judicata, whether in the form of claim preclusion or issue preclusion (also 

called collateral estoppel), aims to prevent repetitious litigation of disputes that 

are essentially the same, by holding a prior final judgment binding against both 

the original parties and their privies.” Becker v. State, 992 N.E.2d 697, 700 (Ind. 

2013). Here, Twitty has raised the same or similar challenges to his consecutive 

sentences, each time resulting in a denial of relief. We conclude that Twitty’s 

argument is barred by res judicata. Thus, the trial court did not err by denying

Twitty relief. 
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Conclusion

[20] Because Twitty’s motion to correct erroneous is barred by res judicata, we 

conclude that the trial court did not err by denying Twitty the relief requested.

[21] Affirmed.

Kirsch, J., and Robb, J., concur.