Preview:

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: DANNY L. SMITH Michigan City, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DANNY L. SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 03A01-0606-PC-250

APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT The Honorable Chris D. Monroe, Judge Cause Nos. 03D01-9405-CF-332 and 03D01-9401-DF-47

September 28, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Danny L. Smith appeals the trial court's denial of his Motion to Correct Erroneous Sentence following his conviction for Attempted Burglary, as a Class C felony, pursuant to a guilty plea. Smith raises a single issue for our review, which we restate as whether the trial court erred in not granting Smith an evidentiary hearing on his motion. We affirm. FACTS AND PROCEDURAL HISTORY On April 25, 1994, Smith pleaded guilty to attempted burglary, as a Class C felony, in Cause Number 03D01-9401-CF-47 ("Cause 47"). On August 17, the trial court sentenced Smith to four years in the Department of Correction, to be served consecutive to a sentence imposed in Cause Number 03D01-9405-CR-332 ("Cause 332") and concurrent with a sentence imposed in Cause Number 03D01-9402-CM-82 ("Cause 82"). In Cause 332, Smith had pleaded guilty to three counts of Burglary, each as a Class B felony, and one count of Resisting Law Enforcement, as a Class A misdemeanor. Smith's aggregate sentence totaled twenty-five years. On April 3, 1998, Smith filed his first motion to correct erroneous sentence, which the trial court summarily denied. Smith did not appeal the trial court's decision. Rather, on May 10, 2001, Smith filed a second motion to correct erroneous sentence. On May 17, the trial court denied that motion "on the grounds that defendant is challenging the appropriateness rather than the legality of the sentence." Appellant's App. 1 Again,

Smith's appendix is without pagination, contrary to Indiana Appellate Rule 51(C). Smith is advised that "[a]n appellant who proceeds pro se is held to the same established rules of procedure that a trained legal counsel is bound to follow," and he must comply with the Indiana Rules of Appellate

1

2

Smith did not appeal the trial court's order. On April 5, 2006, Smith filed his third motion to correct erroneous sentence, which the court denied on May 22. In denying the third motion, the court noted "that this is at least the third time defendant has filed a similar motion. . . . The Court, being duly advised, again DENIES Defendant's motion without hearing for the same grounds as stated in the May 17, 2001 order." Id. This appeal ensued. DISCUSSION AND DECISION Smith's third motion to correct erroneous sentence alleged that his sentences in Cause 332 and Cause 47 were improper because the facts underlying each of his convictions in those causes were part of a single episode of criminal conduct. Hence, Smith argues that his twenty-five year aggregate sentence is improper under Indiana Code Section 35-50-1-2 ("consecutive sentencing statute"). The current version of the consecutive sentencing statute provides as follows: except for crimes of violence, [which includes burglary, as a Class B felony,] the total of the consecutive terms of imprisonment . . . to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted. Ind. Code

Download Danny L. Smith v. State of Indiana.pdf

Indiana Law