APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DAVID D. PARRETT, PRO SE STEVE CARTER
Bunker Hill, Indiana Attorney General of Indiana
ZACHARY J. STOCK
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DAVID D. PARRETT,
vs. ) No. 21A01-0301-PC-12
STATE OF INDIANA, )
APPEAL FROM THE FAYETTE CIRCUIT COURT
The Honorable Daniel L. Pflum, Judge
Cause No. 21C01-9610-CF-183
December 18, 2003
OPINION - FOR PUBLICATION
David Parrett (Parrett) pled guilty to Class C felony operating a vehicle after
driving privileges are forfeited for life,
Class D felony operating a vehicle while
Class A misdemeanor false informing,
and to being an habitual offender
Fayette Circuit Court. He was sentenced to serve concurrent terms of five
years for the operating a motor vehicle after forfeiture for life conviction, three
years for the operating while intoxicated conviction, and 180 days for the false
informing conviction. His sentence was enhanced by an additional five years because
of his habitual offender status, for an aggregate ten-year sentence. Parrett later
filed a motion to correct erroneous sentence, which was denied. He appeals
arguing that the trial court improperly enhanced his sentence under the habitual offender
statute. Concluding that Parretts sentence was illegal, we reverse and remand.
Facts and Procedural History
Parrett was charged with and pled guilty to Class C felony operating a
vehicle after driving privileges are forfeited for life, Class D felony operating a
vehicle while intoxicated, Class A misdemeanor false reporting, and to being an habitual
offender in Fayette Circuit Court. On September 12, 1997, he was sentenced
to serve concurrent terms of five years for the operating a motor vehicle
after forfeiture for life conviction, three years for the operating while intoxicated conviction,
and 180 days for the false informing conviction. His sentence was enhanced
by an additional five years because of his habitual offender status, for an
aggregate ten-year sentence.
On September 28, 1998, Parrett filed a motion to correct erroneous sentence alleging
that the legislature did not intend that a conviction under [Indiana Code section]
9-30-10-17 a Class C felony be subject to further enhancement under the general
habitual offender statute [Indiana Code section] 35-50-2-8. The motion was denied that
same day, and Parrett did not file an appeal.
On October 2, 2002, Parrett filed a motion to correct erroneous sentence alleging
for a second time that the trial court improperly enhanced his sentence under
the habitual offender statute and requesting that the court vacate his habitual offender
determination and sentence. Appellants App. pp. 13-14. On December 6, 2002,
the trial court found that it was unnecessary to hold a hearing on
Parretts motion and denied his motion to correct erroneous sentence. Id. at
21. Parrett now appeals.
Standard of Review
Parrett filed a motion to correct erroneous sentence alleging that his sentence was
improperly enhanced under the habitual offender statute. Although the preferred procedure for
presenting a sentencing error is a petition for post-conviction relief, a motion to
correct erroneous sentence may be used to correct those errors where the sentence
is erroneous on its face. Funk v. State, 714 N.E.2d 746, 748-49
(Ind. Ct. App. 1999), trans. denied.
A trial court may correct an erroneous sentence when a sentence is facially
Mitchell v. State, 726 N.E.2d 1228, 1243 (Ind. 2000); Ind. Code
§ 35-38-1-15 (1998). A sentence is facially defective if it violates express
statutory authority at the time it is imposed. Mitchell, 726 N.E.2d at
1243. When we review the trial courts decision on such a motion,
we defer to the trial courts factual finding and review its decision only
for abuse of discretion. Id. An abuse of discretion occurs when
the trial courts decision is clearly against the logic and effect of the
facts and circumstances before it. Myers v. State, 718 N.E.2d 783, 789
(Ind. Ct. App. 1999). However, we will review a trial courts legal
conclusions under a de novo standard of review. Mitchell, 726 N.E.2d at
Discussion and Decision
Parrett argues that the trial court abused its discretion when it denied his
motion to correct erroneous sentence because his sentence for operating a vehicle after
lifetime suspension . . . could not legally be further enhanced under the
general habitual offender statute[.] Br. of Appellant at 3. The State
contends that Parrett waived this issue when he pled guilty to being an
We agree that Parrett was improperly sentenced. See Stanek v. State, 603
N.E.2d 152, 153-54 (Ind. 1992) (The habitual traffic offender statute is a discrete,
separate, and independent habitual offender statute, and convictions under that statute are not
subject to further enhancement under the general habitual offender statute.); Wood v. State,
734 N.E.2d 296, 298-99 (Ind. Ct. App. 2000), trans. denied; Cardwell v. State,
666 N.E.2d 420, 423 (Ind. Ct. App. 1996), trans. denied. Therefore, we
must consider whether his claim is waived.
We initially observe that a judge cannot impose a sentence that does not
conform to the mandate of the relevant statutes.
Mitchell v. State, 659
N.E.2d 112, 115 (Ind. 1995). A sentence that is contrary to
or violative of a penalty mandated by statute is illegal in the sense
that it is without statutory authorization. Lane v. State, 727 N.E.2d 454,
456 (Ind. Ct. App. 2000) (citing Rhodes v. State, 698 N.E.2d 304, 307
(Ind. 1998)). Further, [a] sentence that exceeds statutory authority constitutes fundamental
error and is subject to correction at any time. Id. (citations omitted);
see also Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000)
([A] sentence that violates express statutory authority is facially defective.); Becker v. State,
719 N.E.2d 858, 861 (Ind. Ct. App. 1999) ([B]ecause this issue involves a
review of statutory authority for a sentence, it is one of fundamental error.
This issue was not waived by Defendant because it can be raised
at any time.).
Weaver, the trial court denied the defendants 1997 and 1999 motions for
pre-sentence jail time credit. After the 1999 motion was denied, the defendant
filed a motion to correct error, which the trial court denied because the
defendant had sought jail time credit in 1997 and the issue had been
previously adjudicated; therefore, he was barred from filing a second Motion for Credit
Time by res judicata. Id. On appeal, we reversed holding that
because pre-sentence jail time credit is a matter of statutory right, the trial
court erred when it summarily rejected Weavers motion for pre-sentence jail time credit
as being barred by the doctrine of res judicata. Id. at 948.
Further, we concluded that
any time a defendant whose liberty has been restricted through imprisonment or confinement
requests a trial court to reconsider its previous award of jail time credit,
and the defendants motion in this regard identifies a sufficient factual basis for
his eligibility, the court must address the merits of such motion.
In Badger v. State, 754 N.E.2d 930 (Ind. Ct. App. 2001), the defendant
pled guilty to murder and the trial court ordered the sentence on his
murder conviction to be served consecutive to a sentence previously imposed for an
unrelated rape conviction. Id. at 932. The defendant filed a motion
to correct erroneous sentence in 1995, which the trial court denied and the
defendant appealed. On appeal, we affirmed the trial courts denial holding that
although the sentence was erroneous, Badger had benefited from the illegality. Id.
The defendant filed an amended petition for post-conviction relief in 1999 alleging
that his sentence was illegal, his guilty plea was not voluntary or knowingly
made, and ineffective assistance of counsel. The petition was denied, and the
defendant appealed. Id.
Once again, our court concluded that the trial court improperly ordered the murder
sentence to be served consecutive to the previously imposed rape sentence.
at 935. Although we recognized that the principles of the res judicata
and law of the case doctrines generally preclude review of an issue that
has previously been decided, we also noted:
With due respect for the doctrine of res judicata this Court has always
maintained the option of reconsidering earlier cases in order to correct error.
A court has the power to revisit prior decisions of its own or
of a coordinate court in any circumstance, although as a rule courts should
be loathe to do so in the absence of extraordinary circumstances such as
where the initial decision was clearly erroneous and would work manifest injustice.
Id. (quoting State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1994)) (internal citation
omitted). After observing that any benefit the defendant received from the plea
agreement did not justify upholding the erroneous consecutive sentences, which resulted in an
aggregate seventy-year sentence, our court concluded that the erroneous sentence constitutes fundamental error.
Id. at 936. See also Thompson v. State, 634 N.E.2d 775,
777-78 (Ind. Ct. App. 1994); Sinn v. State, 609 N.E.2d 434, 436 (Ind.
Ct. App. 1993), trans. denied ([W]e cannot sanction an illegal sentence simply because
it was the product of an agreement. . . . Courts are
duty bound to correct illegal sentences.).
From our review of these decisions, it is clear that a defendants challenge
to an illegal sentence is not waived simply because that illegal sentence was
imposed pursuant to a plea agreement. Further, in some instances where the
sentence was illegally imposed, a defendants challenge to the sentence will not be
barred by the doctrine of res judicata. As we stated above, the
trial court imposed an illegal sentence on Parrett when it sentenced him for
his conviction under Indiana Code section 9-30-10-17, the habitual traffic offender statute, and
further enhanced that sentence under Indiana Code section 35-50-2-8, the general habitual offender
statute. We therefore remand this case to the trial court with instructions
to vacate the habitual offender enhancement.
Reversed and remanded for proceedings consistent with this opinion.
NAJAM, J., and ROBB, J., concur.
Ind. Code § 9-30-10-17 (1992 & Supp. 2003).
Footnote: Ind. Code § 9-30-5-3 (1992 & Supp. 2003).
Footnote: Ind. Code § 35-44-2-2 (1998 & Supp. 2002).
Footnote: Ind. Code § 35-50-2-8 (1998 & Supp. 2003).
Footnote: We note that the conviction and habitual offender determination in
the result of a guilty plea. 734 N.E.2d at 297. However,
as there is no discussion of waiver in that decision, the issue was
apparently not raised.