Poore v. State

• Citation: 613 N.E.2d 478
• Decision Date: 18 May 1993
• Docket Number: No. 29A02-9211-CR-566,29A02-9211-CR-566
• Parties: Floyd P. POORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 478

613 N.E.2d 478

Floyd P. POORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 29A02-9211-CR-566.

Court of Appeals of Indiana,

Second District.

May 18, 1993.

Susan K. Carpenter, Public Defender, Ruth Johnson, Deputy Public Defender, Indianapolis, for appellant-defendant.

Pamela Carter, Atty. Gen., Deana M. McIntire, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SHIELDS, Judge.

Floyd P. Poore appeals from the denial of his Motion to Correct Erroneous Sentence.

We reverse and remand.

ISSUES

Did the trial court err in denying Poore's Motion to Correct Erroneous Sentence?

FACTS

In 1987, Poore was convicted of one count of burglary, a class B felony, ¹ and found to be an habitual offender. ² He received a twenty-year sentence enhanced by thirty years. ³ In 1990, one of the prior felony convictions upon which the habitual offender finding was based was vacated in a post-conviction proceeding. On October 24, 1991, Poore filed a Motion to Correct Erroneous Sentence, pursuant to IC 35-38-1-15 (1988), in which he attached his habitual offender determination and enhanced sentence. In denying Poore's motion, the trial court stated:

While it may be argued that the Supreme Court did not specifically prohibit the use of a motion to correct erroneous sentence to challenge an habitual offender enhancement when an underlying conviction has been set aside, both the Bench and Bar have some responsibility to follow cues and suggestions which are clearly announced. Accordingly, the Court now finds that I.C. 35-38-1-15 is not an appropriate procedural mechanism to challenge an habitual offender enhancement whose underlying convictions have been vacated.

Record at 79.

Poore filed a Motion to Correct Errors. As alternative relief Poore requested the trial court to dismiss his Motion to Correct Erroneous Sentence, rather than to deny it, in order to avoid any res judicata effect should he seek post-conviction relief. The court denied Poore's Motion to Correct Errors; Poore appeals.

DISCUSSION

Poore contends that a motion to correct erroneous sentence pursuant to IC 35-18-1-15 is an appropriate procedural mechanism to challenge an habitual offender enhancement after an underlying conviction has been vacated.

Considerable confusion has existed as to the appropriate procedure to attack a sentence. In Thompson v. State (1979), 270 Ind. 677, 679, 389 N.E.2d 274, 276, our supreme court stated that in order to conserve judicial time and effort while speedily and efficiently affording justice to persons convicted of a crime, it would allow a defendant to attack his sentence by either a motion to correct an erroneous sentence or by a petition for post-conviction relief. However, the court also stated a preference for the post-conviction remedy because it would afford the benefit of "finally closing the door to post-conviction remedies." Id. Subsequently, the supreme court recognized that the discretion afforded a defendant by Thompson was too unconfined. Thompson was drafted partly in response to some confusion over what procedure to follow....

However, it is well-settled now that while the statutory procedure may be utilized to correct an erroneous sentence, the preferred procedure is by way of a petition for post-conviction relief. The use of the statutory procedure should be limited to those instances where the sentence is erroneous on its face. The use of Ind.Code Sec. 35-38-1-15 is proper for errors in sentencing similar to those which an appellate court would hold to be fundamental and would correct even if presented for the first time on appeal. Such fundamental error would include illegal sentences in violation of express statutory authority or an erroneous interpretation of a penalty provision of a statute. Not included within the type of fundamental error that may be raised under the statute would be constitutional issues or issues concerning how the trial court weighed factors in imposing sentence.

Jones v. State (1989), Ind., 544 N.E.2d 492, 496 (citations omitted).

Most recently, in Reffett v. State (1991), Ind., 571 N.E.2d 1227, the supreme court reiterated its position that a post-conviction proceeding is the "preferred" procedure by which a defendant should attack a sentence, reserving the statutory procedure for circumstances "where the sentence is erroneous on its face," and finding that "facial error occurs when the sentence violates express statutory authority." Id. at 1229 (citing Jones, 544 N.E.2d at 496). Accordingly, Poore argues that whenever an underlying felony which was a basis for a defendant's habitual offender determination is vacated, the enhanced sentence violates the express statutory authority of the habitual offender statute and constitutes facial error, thus allowing the defendant to use the statutory remedy.

We agree that a motion to correct erroneous sentence under IC 35-38-1-15 is appropriate when the defendant's sentence is facially defective; however, we define a facially defective sentence as a sentence that violates express statutory authority at the time the sentence is pronounced. For example, a sentence is facially invalid if it falls outside the statutory parameters for the particular class felony or, as in Reffett, it contravenes...