MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[1] Burl Johnson appeals the denial of his pro-se Motion to Correct Erroneous Sentence, claiming that the trial court abused its discretion in denying the motion.
[2] We affirm.
Facts & Procedural History
[3] On September 9, 1997, a jury found Johnson guilty of two counts of criminal deviate conduct and one count of rape, all Class B felonies. The jury also determined that he was a habitual offender. At the sentencing hearing on October 10, 1997, the trial court sentenced Johnson to ninety years imprisonment for those crimes, which included a thirty-year enhancement for being a habitual offender. Johnsons convictions and sentence were affirmed on direct appeal. Johnson v. State, 699 N.E.2d 746 (Ind. Ct. App. 1998).
[4] On May 12, 2022, Johnson filed this motion to correct his sentence, by which he sought to have his habitual offender adjudication vacated. Johnson argued that his sentence was erroneous on its face because at the same sentencing hearing the trial court imposed a consecutive habitual offender enhancement under a separate cause, 49G04-9607-CF-101666 (CF-101666). See Breaston v. State, 907 N.E.2d 992, 994-95 (Ind. 2009) (holding that “a trial court cannot order consecutive habitual offender sentences” regardless of whether the sentences are imposed in a single or in separate proceedings).
[5] CF-101666 involved a negotiated plea agreement entered on September 15, 1997, pursuant to which Johnson was convicted of Class A felony attempted murder and Class B felony rape and adjudicated a habitual offender. The trial court sentenced Johnson in CF-101666 right after meting out the sentence in this case and ordered the fifty-year sentence, which included a ten-year habitual offender enhancement, to be served consecutively to the ninety-year sentence in this case.
[6] At a March 2023 hearing on Johnsons motion to correct his sentence, Johnson made it clear that he was seeking correction of his sentence in this case, not CF-101666. Johnson made this distinction because he was concerned that correction of the sentence in CF-101666 would result in his plea agreement being set aside. Thus, Johnson requested that the trial court vacate the thirty-year enhancement.
[7] While the State did not disagree with the premise that a trial court cannot order consecutive habitual offender enhancements, it argued that this was not the proper cause or manner in which to seek relief. In a later filed written response, the State argued: “Johnsons request for relief regarding the Breaston habitual offender argument could potentially be entertained regarding the 10-year habitual offender in [CF-101666], but the argument as to the 30-year habitual offender [here] is without merit.” Appellants Supplemental Appendix at 44.
[8] The trial court denied Johnsons motion on August 4, 2023. The court agreed with the State that the sentence in this case was not defective and that Johnsons request for relief under Breaston would need to be asserted in CF-101666. Johnson now appeals, arguing that the trial court abused its discretion by not vacating his thirty-year habitual offender enhancement.
Discussion & Decision
[9] We review a trial courts ruling on a motion to correct sentence only for an abuse of discretion. Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct. App. 2015). An abuse of discretion will be found when the ruling is against the logic and effect of the facts and circumstances. Id. “While we defer to the trial courts factual determinations, we review legal conclusions de novo.” Id.
[10] Johnson filed his motion under Ind. Code § 35-38-1-15, which 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.
This statutory remedy is intended to “provide prompt, direct access to an uncomplicated legal process for correcting the occasional erroneous or illegal sentence” and is available only where a sentence is erroneous on its face. Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (internal quotations omitted). Yet where a claimed sentencing error is not facially apparent – “clear from the face of the judgment imposing the sentence in light of the statutory authority” – it may be raised only via direct appeal or, where appropriate, post-conviction relief. Id. at 787. In other words, “[c]laims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence.” Id.
[11] The alleged sentencing error, here, is not clear on the face of the judgment and requires consideration of a separate cause, CF-101666s plea agreement and sentence. In fact, it was under CF-101666, not this case, that the sentences in the two causes were ordered to be served consecutively.
[12] The trial court properly denied Johnsons motion, as the matter can be addressed only through post-conviction proceedings involving CF-101666. Moreover, we observe that even if Johnson is ultimately entitled to relief, the proper remedy would not require vacation of the enhancement under either cause; ordering the ten- and thirty-year enhancements to be served concurrently would be sufficient. See Breaston, 907 N.E.2d at 995-96 (reversing imposition of consecutive habitual offender enhancements and remanding with instructions that the trial court order “the habitual offender enhancement in this case to be served concurrently with the prior enhancement”); Smith v. State, 774 N.E.2d 1021, 1024 (Ind. Ct. App. 2002) (remanding for resentencing with instructions to “order that the habitual offender enhancements in the two causes be served concurrently”), trans. denied.
[13] Judgment affirmed.
Memorandum Decision by Chief Judge Altice
Judges Bradford and Felix concur.
Bradford, J. and Felix, J., concur.