Opinion
23A-CR-607
01-23-2024
Anthony T. Wilburn, Appellant-Defendant, v. State of Indiana Appellee-Plaintiff.
APPELLANT PRO SE Anthony T. Wilburn Indiana State Prison Michigan City, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jodi K. Stein Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Huntington Circuit Court The Honorable Davin G. Smith, Judge Trial Court Cause No. 35C01-1905-F2-000123
APPELLANT PRO SE Anthony T. Wilburn Indiana State Prison Michigan City, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jodi K. Stein Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
FELIX, JUDGE.
Statement of the Case
[¶1] In 2019, a jury found Anthony Wilburn guilty of Level 2 felony burglary, Level 3 felony robbery, and Class A misdemeanor resisting law enforcement. The trial court "merged" the burglary and robbery convictions at sentencing. On direct appeal, we vacated the burglary conviction and remanded for resentencing on the robbery conviction. Wilburn v. State (Wilburn I), 177 N.E.3d 805 (Ind.Ct.App. 2021). After resentencing, Wilburn appealed again, and we affirmed his revised conviction and sentence. Wilburn v. State (Wilburn II), 190 N.E.3d 962, No. 22A-CR-11, slip. op. (Ind.Ct.App. June 21, 2022), trans. denied, 194 N.E.3d 602 (Ind. 2022). Wilburn then filed a Motion to Correct Erroneous Sentence (the "Motion"), which the trial court denied.
I.C. § 35-42-5-1.
I.C. § 35-44.1-3-1.
[¶2] Wilburn now appeals the trial court's denial of the Motion and raises four issues for our review, which we revise and restate as the following three issues:
1. Whether the trial court abused its discretion in denying the Motion;
2. Whether the trial court violated Wilburn's right to be free from double jeopardy when, on remand, it entered judgment of conviction and sentenced Wilburn on the robbery charge, which had been "merged" into the burglary conviction at the original sentencing hearing; and
3. Whether the trial court violated Wilburn's right to be free from double jeopardy when, at the original sentencing, it entered judgment of conviction on all three counts and "merged" the burglary and robbery convictions instead of vacating the robbery conviction.
We address the first issue on the merits, but we do not address the merits of the remaining issues because the second issue is barred by res judicata and Wilburn waived the third issue by failing to preserve it for our review.
[¶3] We affirm.
Facts and Procedural History
[¶4] After a three-day jury trial in 2019, a jury found Wilburn guilty of Level 2 felony burglary, Level 3 felony robbery, and Class A misdemeanor resisting law enforcement. Wilburn I, 177 N.E.3d at 809. Wilburn subsequently admitted to being a habitual offender. Id. The trial court entered judgment of conviction against Wilburn for the Level 2 felony burglary and the Class A misdemeanor resisting law enforcement and for being a habitual offender. Id. The trial court "merged" the Level 3 felony robbery with the burglary conviction and sentenced Wilburn to an aggregate term of 34 years in the Indiana Department of Correction. Id. at 809-10.
We set out the facts underlying Wilburn's convictions in his first appeal: Wilburn I, 177 N.E.3d at 808-09.
[¶5] Wilburn appealed and argued that there was insufficient evidence to support the burglary conviction, among other issues. Wilburn I, 177 N.E.3d at 814-15. We held that the State failed to present sufficient evidence to show that Wilburn committed the "breaking" into a structure required for burglary when he entered "a public business during business hours"; consequently, we remanded the case to the trial court with instructions that the trial court "enter judgment of conviction for robbery, a Level 3 felony, and resentence Wilburn in accordance with this opinion." Id.
[¶6] On remand, the trial court held a new sentencing hearing. Wilburn II, slip op. at ¶ 6. At that hearing, Wilburn argued for the first time that his Level 3 robbery conviction had in fact been vacated when the trial court originally merged it into the Level 2 burglary conviction and, as such, the trial court could not enter judgment on the Level 3 robbery despite the instructions from this court in Wilburn I. Id. The trial court disagreed and entered judgment of conviction against Wilburn for Level 3 robbery. Id. The court sentenced Wilburn to an aggregate term of 30 years executed (the "Revised Sentence"). Id.
[¶7] Wilburn again appealed and argued in part that "the trial court violated his right to be free from double jeopardy when it entered judgment of conviction on the Level 3 felony robbery after having previously 'merged' that conviction with the Level 2 felony burglary." Wilburn II, slip. op. at ¶ 7. We held that Wilburn forfeited his double-jeopardy claim by not challenging our instructions in Wilburn I. Id. at ¶ 8. We also held that Wilburn's double-jeopardy argument was meritless because "where a defendant has been previously convicted and the conviction has been set aside or vacated by the trial court, the defendant may be later sentenced on that conviction without there existing a double jeopardy violation." Id. at ¶ 9 (alterations omitted) (quoting Taflinger v. State, 698 N.E.2d 325, 327 (Ind.Ct.App. 1998)). We affirmed Wilburn's conviction for Level 3 felony robbery and his aggregate 30-year sentence. Id.at ¶ 18. Id.at ¶ 18.
[¶8] Wilburn then filed the Motion, arguing that the Revised Sentence was facially erroneous for two reasons: the Revised Sentence (1) constituted a reprosecution, which is prohibited by Indiana Code section 35-41-4-3; and (2) was a sentence upon a lesser included offense, which is prohibited by Indiana Code section 35-38-1-6. The trial court denied the Motion. This appeal ensued.
Discussion and Decision
The Trial Court Did Not Abuse its Discretion When it Denied Wilburn's Motion
[¶9] Wilburn claims that the trial court erred in denying his Motion. We review a trial court's ruling on a motion to correct erroneous sentence for only an abuse of discretion. Hobbs v. State, 71 N.E.3d 46, 48 (Ind.Ct.App. 2017) (citing Woodcox v. State, 30 N.E.3d 748, 750 (Ind.Ct.App. 2015)). We will find an abuse of discretion if the trial court's decision is against the logic and effect of the facts and circumstances before it. Id. (citing Woodcox, 30 N.E.3d at 750).
[¶10] Wilburn filed the Motion pursuant to Indiana Code section 35-38-1-15 which states:
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.
[¶11] Use of this statute is "narrowly confined" to claimed sentencing errors that are apparent from the face of the sentencing judgment. Hobbs, 71 N.E.3d at 49 (quoting Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004)). "A sentencing error that requires examination of matters beyond the face of the sentencing judgment is better suited for resolution on direct appeal or through postconviction relief." Id. (citing Woodcox, 30 N.E.3d at 751). "Claims that require consideration of the proceedings before, during, or after trial may not be presented" via a motion to correct erroneous sentence. Robinson, 805 N.E.2d at 787.
[¶12] Here, we cannot address Wilburn's claim that the Revised Sentence was erroneous as a reprosecution without considering whether more than one prosecution occurred and if so, whether the facts presented at both prosecutions concerning the robbery charge were the same. See I.C. § 35-41-4-3. In other words, we cannot review Wilburn's reprosecution argument under Indiana Code section 35-38-1-15 without considering the proceedings before, during, or after trial. See Robinson, 805 N.E.2d at 787.
We observe that the State prosecuted Wilburn on the Level 2 felony robbery charge only once-at the 2019 trial. Even if we could address the merits of this claim, it would fail for lack of multiple prosecutions.
[¶13] Wilburn also argues in the Motion that Level 3 felony robbery is a lesser included offense of Level 2 felony burglary, so the trial court violated his right to be free of double jeopardy by entering judgment of conviction on the robbery charge and entering the Revised Sentence. As our Supreme Court explained in Wadle v. State:
[W]hen multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court's inquiry comes to an end and there is no violation of substantive double jeopardy. But if the statutory language is not clear, then a court must apply our included-offense statutes to determine whether the charged offenses are the same. See I.C. § 35-31.5-2168. If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy.
151 N.E.3d 227, 253 (Ind. 2020). Under Indiana Code section 35-31.5-2-168, an "included offense" includes an offense that "is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged."
[¶14] A person commits Level 2 felony burglary when he "breaks and enters the building or structure of another person, with intent to commit a felony or theft in it" and commits such act "while armed with a deadly weapon." I.C. § 35-43-2-1(3)(A). A person commits Level 3 felony robbery when he "knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear" and commits such act "while armed with a deadly weapon." I.C. § 35-42-5-1(a). These two offenses are established by proof of different material elements, so robbery is not a lesser included offense of burglary.
[¶15] Based on the foregoing, the trial court did not abuse its discretion in denying the Motion.
Wilburn's Other Claims are Barred by Waiver and Res Judicata
[¶16] Aside from the Motion, Wilburn claims that the trial court erred at the first sentencing hearing by merging the robbery conviction into the burglary conviction rather than vacating the robbery conviction. This is the first time Wilburn has made such a claim, either to the trial court or on appeal. It is well established that issues raised for the first time on appeal are waived, including constitutional issues. Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) (quoting Freytag v. C.I.R., 501 U.S. 868, 895 (1991)). Wilburn therefore waived this issue for our review, and we decline to address it on the merits. See id.
[¶17] Wilburn also argues on appeal that the trial court violated his due process rights by entering judgment of conviction on the Level 3 felony robbery charge and that the trial court violated his state due process rights by entering the Revised Sentence. These claims are essentially the same as those raised in the Motion and thus are merely an attempt by Wilburn to have us consider facts outside of the sentence judgment, which we will not do. See Robinson, 805 N.E.2d at 787. Moreover, to the extent these arguments are separate and distinct from those raised in the Motion, Wilburn has raised them for the first time on appeal; therefore, they are waived, and we decline to address their merits. See Plank, 981 N.E.2d at 53.
[¶18] Even if Wilburn had properly preserved these arguments for our review, Wilburn is further barred from raising them by res judicata (also known as "collateral estoppel"). Whether in the form of claim preclusion or issue preclusion, res judicata "aims to prevent repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies." Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013) (citing Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703-05 (Ind.Ct.App. 2005), trans. denied).
[¶19] We addressed Wilburn's double jeopardy arguments in his second appeal. Wilburn II, slip. op. at ¶¶ 7-9. Specifically, we noted that Wilburn "is simply incorrect that reinstating a previously vacated jury verdict violates double jeopardy." Wilburn II, slip. op. at ¶ 9. Rather, the rule is that "where a defendant has been previously convicted and the conviction has been set aside or vacated by the trial court, the defendant may be later sentenced on that conviction without there existing a double jeopardy violation." Id. (alterations omitted) (quoting Taflinger v. State, 698 N.E.2d 325, 327 (Ind.Ct.App. 1998)). We held in Wilburn II that the trial court did not violate Wilburn's right to be free of double jeopardy by entering judgment of conviction on and sentencing Wilburn on the robbery charge. Id. Therefore, the double jeopardy claims Wilburn raises in this appeal concerning the Revised Sentence are barred by res judicata, and we will not address the merits of those claims.
Conclusion
[¶20] In sum, the Motion is an inappropriate means by which to address Wilburn's claim that the Revised Sentence was erroneous as a reprosecution, and Wilburn's other claim that the Revised Sentence was erroneous because robbery is a lesser included offense of burglary is meritless. Wilburn's remaining arguments on appeal are either waived or barred by res judicata. We therefore hold that the trial court did not abuse its discretion when it denied Wilburn's Motion.
[¶21] Affirmed.
Bailey, J., and May, J., concur.