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 est oppel, or the law of the case.

APPELLANT PRO SE : ATTORNEYS FOR APPELLEE : RICKEY ROBEY GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana
ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

RICKEY ROBEY, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A04

- 1107

- CR

- 433 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant W. Hawkins, Judge Cause No. CR

- 86080E

March 16, 2012
MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Judge2 Case Summary Rickey Robey , pro se, appeals the trial court’s denial of his motion to correct

erroneous sentence. Because Robey allege s sentencing error s that require consideration of matters beyo nd the face of the sentencing judgment, a motion to correct erroneous sentence was not the appropriate vehicle for him to use . Accordingly, w e conclude that the trial court properly denied Robey’s motion. Facts and Procedural History In 1987, Robey and hi s codefendant , Michael Lane , were convicted of Class A felony rape, Class A felony criminal deviate conduct, and three counts of Class A felony kidnapping in Marion Superior Court . The trial court sentenced Robey to an aggregate term of 100 years. Robey and Lane appealed to the Indiana Supreme Court

. The Supreme Court affirmed Robey’s conviction s , but it remanded his case to the trial court “for the entry of individual, specific findings supporting the imposition of enhanced sentences or, in the alternat ive, for the reduction of the sentences to the standard sentences provided for by statute.” Robey v. State , 555 N.E.2d 145, 152 (Ind. 1990).
On remand in 1992 , Judge Pro Tempore William Young found aggravating
circumstances and sentence d Robey to an aggre gate term of 100 years. Appellant’s App. p. 7 , 50

- 51

. Robey appealed the trial court’ s resentencing

. This Court , however, dismissed the appeal because Robey was not sentenced by a duly appointed or qualified judge . We
therefore remanded for another rese ntencing

. Robey v. State , 49A02

- 9210

- CR

- 502 (Ind. Ct. App. Feb. 15, 1993).3

In 2000, Judge Pro Tempore William T. Robinette re sentenced Rob e y to an

a ggregate term of eighty years. Appellant’s App. p. 19. Robey again appealed the trial court’s resentenci ng , arguing that his sentence was manifestly unreasonable. Robey v. State , No. 49A02

- 0006

- CR

- 384 (Ind. Ct. App. Nov. 9, 2000). This Court found Robey’s eighty

- year sentence to be “reasonable” and
therefore affirmed the trial court

. Slip op. at 5

- 6.
In 2 001, Robey filed a petition for post

- conviction relief, which was amended by
counsel in 2003

. 1 He argued that his second appellate counsel was ineffective for failing
to raise a double

-

jeopardy violation

. After a hearing, the post

- conviction court denied Robey relief in 2004. Robey appealed the denial of post

- conviction relief, and this Court
affirmed. Robey v. State , 49A05

- 0406

- PC

- 342 (Ind. Ct. App. Mar. 17 , 2005) , trans. denied

. In 2011, Robey , pro se, filed a motion to correct erroneous senten ce. He argued
that Judge Young’s 1992 sentence is “erroneous on its face because his thirty (30) year sentences were increased on the ‘specific finding’ that a jury in fact found Robey guilty
of ‘ C riminal Deviate Conduct’ beyond a reasonable doubt.” Appe llant’s App. p. 34

. He also alleged error s in Judge Robinette’s 2000 sentence. Id. (“The Honorable W.T. Robi[n]ette, Judge, did not enter in the record that he specifically f [ou] nd that Judge William Young made an erroneous ruling when he enhanced each o f Robey’s sentences above the thirty (30) year presumptive . . . .”). The trial court denied Robey ’s motion to

correct erroneous sentence.

1 The record shows that Robey filed at least two earlier petitions for post

- conviction relief that he with drew.4

Robey now appeals.
Discussion and Decision Robey contends that the trial court erred in denying his moti on to correct
erroneous sentence. 2 The State responds that because th e alleged sentencing error s are not clear from the face of the sentencing judgment, a motion to correct erroneous sentence is the wrong vehicle in which to bring this claim.
An inmate wh o believes he has been erroneously sentenced may file a motion to correct the sentence purs uant to Indiana Code section 35

- 38

- 1

- 15: If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corr ected 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 po inting out the defect in the original sentence. Ind. Code § 35

- 38

- 1

- 15; see also Neff v. State , 888 N.E.2d 1249, 1251 (Ind. 2008). The purpose of this statute “is to provide prompt, direct access to an uncomplicated legal process for correcting the occas ional erroneous or illegal sentence.” Robinson v. State , 805 N.E.2d 783, 785 (Ind. 2004) (quotation omitted) . Accordingly, a motion to correct
sentence may only be filed to address a sentence that is “erroneous on its face.” Neff , 888
N.E.2d at 1251 (ci ting Robinson , 805 N.E.2d at 786 )

. Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion

to correct sentence. Robinson , 805 N.E.2d at 787

. S entencing errors that are not facially
appa rent must be addressed via direct appeal or post

- conviction relief. Neff , 888 N.E.2d

2 We note that Robey’s codefendant, Lane, recently appealed the denial of his motion to correct erroneous sentence. We affirmed the trial court. Lane v. State , No. 49A05

- 1108

- CR

- 462 (Ind. Ct. App. Feb. 6, 2012).5

at 1251

. In addition, a motion to correct erroneous sentence may only arise out of information contained on the formal judgment of conviction, and not from the abstract of judgment. Id. However, if the particular county does not issue judgments of conviction (at the time of the opinion in Neff only Marion County q ualified), then the trial court’ s abstract of judgment will serve as an appropriate substitute for purposes of making the
claim. Id.
Alt hough Robey’s argument is difficult to decipher, 3 he appears to challeng e the aggravators used to enhance his sentences above the thirty

- year presumptive term and alleg e a Blakely violation

. Resolution of these issues , howeve r, require s us to go beyond the face of the abstract of judgment. 4 See Robinson , 805 N.E.2d at 786

- 87 (noting that a claim that the trial court imposed the maximum sentence in partial reliance up on improper aggravators is not appropriate for a motion to c orrect sentence ) ; Fulkrod v.
State , 855 N.E.2d 1064, 1067 (Ind. Ct. App. 2006) (noting that whether a sentence
violates Blakely is not the type of claim that may be brought by a motion to correct erroneous sentence)

. Because t he motion to correct erroneou s sentence was not the appropriate vehicle for Robey to use , t he trial court properly denied his motion to correct

erroneous sentence.

3 In fact, two pages of Robey’ s Appellant’s Brief are missing from the copies he submitted on appeal

. That is, Robey’s brief advances from page 7 to page 10.

4 Robey includes in his Appellant’ s Brief a copy of the abstract of judgment from his 2000 resentencing. Robey neverthele ss argues that because he was convicted in Marion County , he can properly rel y on the “sentencing transcripts” as a substitute for the abstract of judgment. Appellant’s Reply Br. p. 1

- 2. Sentencing transcripts are not an appropriate substitute . U sing th em would eviscerate the purpose of a motion to correct erroneous sentence , which is “ to provide prompt, direct access to an uncomplicated legal process for correcting the occasional erroneous or illegal sentence.” Robinson , 805 N.E.2d at 785 (quotation om itted)

.6

Affirmed. ROBB, C.J., and NAJAM, J., concur
.