MoreLaw Receptionists
VOIP Phone and Virtual Receptionist Services

Call 918-582-6422 Today

Dodd committed the offenses underlying this appeal in December 1997. He was

charged and convicted of Class A felony attempted murder and Class C felony

burglary following a jury trial. Dodd was originally sentenced to the maximum

term of fifty years for attempted murder and the maximum term of eight years

for burglary, to be served consecutively based on the sentencing court�s

identification of multiple aggravating factors. On direct appeal, a panel of this

Court upheld Dodd�s convictions and sentence. Dodd v. State, No. 71A03-9809-

CR-394 (Ind. Ct. App. July 23, 1999), trans. denied.

[4] A subsequent motion to correct erroneous sentence was denied by the trial

court in 2006 and affirmed on appeal. Dodd v. State, No. 71A05-0605-PC-234

(Ind. Ct. App. May 9, 2007). Dodd filed a successive petition for postconviction relief, and at the conclusion of a post-conviction relief hearing, the

State conceded that Dodd�s convictions were part of a single episode of criminal

conduct for sentencing purposes under Indiana Code section 35-50-1-2.

Accordingly, the post-conviction court determined that Dodd�s consecutive

sentences exceeded the maximum sentence permitted by statute and remanded

the case for resentencing.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 3 of 6

[5] In November 2013, following a hearing, the resentencing court imposed

consecutive sentences of fifty years for attempted murder and five years for

burglary, the maximum sentence permitted for this episode of criminal conduct.

Dodd appealed, alleging that the resentencing court abused its discretion by

failing to consider mitigating factors. This Court found no abuse of discretion in

Dodd�s resentencing and affirmed his fifty-five-year sentence in 2014. Dodd v.

State, No. 71A03-1312-CR-475 (Ind. Ct. App. July 29, 2014).

[6] Dodd filed a motion to correct erroneous sentence on October 19, 2018,

alleging that his fifty-five-year sentence exceeded the maximum sentence

permitted by statute. The trial court denied Dodd�s motion to correct erroneous

sentence on December 12, 2018, writing in part:

2. In this case, the Defendant does not allege that the sentence

itself is erroneous on its face. Instead, Defendant challenges the

sentence, arguing that the sentence violates the law because he

interprets the law to say that the Court had to sentence him to the

advisory sentences for his offenses.

3. The Defendant requests relief that is not appropriate for a

Motion to Correct Erroneous Sentence. Furthermore, the

Defendant has litigated the issue of his sentence multiple times

unsuccessfully. Most recently, the Indiana Court of Appeals

found that he waived the issue in his successive Petition for PostConviction Relief, although added, via a footnote, the following:

Waiver notwithstanding, Dodd�s claim is without merit

because he has failed to meet his burden of showing that

[resentencing] counsel rendered deficient performance or

that he was prejudiced by counsel�s failure to pursue the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 4 of 6

issue in his resentencing appeal. See Robertson v. State, 871

N.E.2d 280, 285-86 (Ind. 2009) (explaining the application

of Indiana Code � 35-50-2-1.3(c) and revealing the lack of

merit in Dodd�s argument that the statute required the

resentencing court to impose an advisory term for each of

his convictions). Richard Dodd v. State of Indiana, Court of

Appeals case no. 71-A03-1702-PC-452, pg. 15 fn. 6.

Appellant�s App. p. 9. Dodd now appeals.

Discussion and Decision

[7] We review the denial of a motion to correct erroneous sentence for an abuse of

discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An abuse

of discretion will be found only when the trial court�s decision is against the

logic and effect of the facts and circumstances before it. Id. A defendant who

believes that he has been erroneously sentenced may file a motion to correct an

erroneous sentence, which are designed to provide a prompt and uncomplicated

process to correct sentences. Neff v. State, 888 N.E.2d 1249, 1250�51 (Ind.

2008). Indiana Code section 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.

[8] Motions made pursuant to Indiana Code section 35-38-1-15 may only be used

to attack a sentence that is �erroneous on its face.� Robinson v. State, 805 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 5 of 6

783, 786 (Ind. 2004). A sentence is defective on its face if it violates express

statutory authority in effect at the time the sentence was pronounced. Woodcox

v. State, 30 N.E.3d 748, 750 (Ind. Ct. App. 2015). When claims of sentencing

errors require consideration of matters outside the face of the sentencing

judgment, the alleged errors may only be attacked by direct appeal or, when

appropriate, by petitions for post-conviction relief. 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 sentence.� Id.

[9] Here, Dodd argues that the trial court abused its discretion in denying his

motion because the resentencing court misinterpreted the applicable sentencing

statute. Appellant�s Br. at 6. The State argues that Dodd�s motion to correct

erroneous sentence is impermissible under Robinson because it is not a facial

attack on the sentencing order, and thus the trial court did not abuse its

discretion in denying his motion. We agree.

[10] Dodd contends that his fifty-five-year sentence was contrary to the statutory

mandate of Indiana Code section 35-50-2-1.3(c)(1), which identifies the

circumstances under which an advisory sentence must be imposed. Dodd

argues that, under this statute, the resentencing court was required to have

imposed the advisory terms for each of his convictions. Dodd�s statutory

challenge, however, involves his dispute with whether the offenses for which he

was sentenced involved serious bodily injury or arose out of a single episode of

criminal conduct. Appellant�s Br. at 7. Such factors cannot be evaluated

without looking at the facts and circumstances underlying Dodd�s convictions,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3126 | April 30, 2020 Page 6 of 6

which are beyond the face of the sentence itself and therefore unavailable for

review as part of a motion to correct erroneous sentence. See Davis v. State, 937

N.E.2d 8, 11 n.1 (Ind. Ct. App. 2010), trans. denied (no abuse of discretion

where defendant claimed that two convictions were one episode of criminal

conduct because such claim required �consideration of the evidence presented

at trial and thus definitely falls outside the �face of the sentencing judgment.��)

(quoting Robinson, 805 N.E.2d at 787). Therefore, Dodd is unable to raise this

challenge to his sentence by means of a motion to correct erroneous sentence,

and the trial court did not abuse its discretion in denying the motion.

Accordingly, we hold that the trial court properly denied Dodd�s motion to

correct erroneous sentence.