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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. ATTORNEY FOR APPELLANT: CHARLES W. LAHEY South Bend, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JAMES ALEXANDER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A04-0704-CR-231

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Jane Woodward Miller, Judge Cause No. 71D01-9504-CF-158

November 20, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue James Alexander appeals from the trial court's grant of his motion to correct erroneous sentence. Alexander raises the sole issue of whether the trial court properly refused to re-consider the aggravating and mitigating factors in correcting his sentence. Concluding that the trial court acted properly, we affirm. Facts and Procedural History On January 17, 1996, following a jury trial, Alexander was found guilty of murder. On March 29, 1996, the trial court issued a sentencing order stating: "[T]he Court has given some thought to all the factors and the Court does believe that the presumptive sentence is appropriate in this case. The Court will impose a sentence of 50 years." Appellant's Appendix at 61. Alexander filed an appeal, arguing that he received ineffective assistance of counsel, and this court affirmed in an unpublished opinion, Alexander v. State, No. 71A059607-CR-276 (Ind. Ct. App., Feb. 18, 1998). On February 5, 2007, Alexander filed a motion to correct erroneous sentence. On March 30, 2007, the trial court granted the motion and reduced Alexander's sentence to forty years. The basis for this reduction was that the actual presumptive sentence that applied to Alexander's case was forty years, not fifty years. See Smith v. State, 675 N.E.2d 693, 697 (Ind. 1996) (recognizing that between July 1, 1994, and May 5, 1995, conflicting sentencing statutes existed, and holding that for murders committed in this timeframe, the presumptive sentence is forty years). However, the trial court refused to reassess the aggravating and mitigating circumstances or to consider Alexander's behavior subsequent to his initial

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sentencing hearing. Specifically, Alexander presented evidence that during his incarceration, he had earned a G.E.D., an Associate's Degree, a Bachelor's Degree, and certification in carpentry, and had participated in psychological treatment. Alexander now appeals, arguing that the trial court should have considered such circumstances, reweighed the aggravating and mitigating circumstances, and further reduced his sentence. Discussion and Decision Under Indiana Code section 35-38-1-15, which governs a motion to correct an erroneous sentence, 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. A defendant may use this procedure only "to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of the statutory authority." Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). On the other hand, "[c]onstitutional issues or issues concerning how the trial court weighed factors in imposing a sentence are not matters which should be addressed in a motion to correct an erroneous sentence." Watkins v. State, 588 N.E.2d 1342, 1344 (Ind. Ct. App. 1992), superceded by statute on other grounds, Ind. Code

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