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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.

FILED
Nov 26 2008, 8:59 am
of the supreme court, court of appeals and tax court

CLERK

APPELLANT PRO SE: RODNEY L. MAY New Castle, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

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

No. 89A05-0809-PC-548

APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Paul Thomas Snow, Judge Cause No. 89D01-0112-DF-133

November 26, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Rodney May appeals the denial of his motion to correct erroneous sentence. We remand. Issue The sole issue is whether May's four-year sentence for Class D felony theft and an habitual offender finding is facially erroneous. Facts In December 2001, the State charged May with theft and also apparently alleged that he was an habitual offender. After several delays in the proceedings, May pled guilty to theft and admitted he was an habitual offender on June 27, 2005. The trial court accepted the plea, convicted May of theft, and found that he was an habitual offender. It sentenced May as follows: The defendant, having entered a plea of guilty to the crime of Theft and the Court having accepted such plea, having considered the pre-sentence report, and having entered judgment of conviction of a Class D Felony, now sentences the defendant, Rodney May, to the custody of the Indiana Department of Correction for a period of four (4) years and that he pay the court costs in the sum of $136.00. App. p. 10. On June 20, 2008, May filed a motion to correct erroneous sentence, contending that his four-year sentence was facially erroneous because it exceeded the three-year maximum for a Class D felony. On July 1, 2008, the trial court denied the motion. May now appeals. 2

Analysis May contends that his four-year sentence is facially erroneous. A motion to correct sentence is used to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of statutory authority. Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). In other words, a facially erroneous sentence is one that has been entered in violation of express statutory authority or based on an erroneous interpretation of a statutory penalty provision. Beliles v. State, 663 N.E.2d 1168, 1173 (Ind. Ct. App. 1996). "Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence." Robinson, 805 N.E.2d at 787. May notes that the maximum sentence for a Class D felony is only three years. See Ind. Code

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