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Habeas Corpus — collateral attack — sentencing error

By: WISCONSIN LAW JOURNAL STAFF//August 20, 2012//

Habeas Corpus — collateral attack — sentencing error

By: WISCONSIN LAW JOURNAL STAFF//August 20, 2012//

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Where a “motion to correct sentence” was not a motion pursuant to Ind. Code § 35-38-1-15, but a collateral attack on a sentence, a prisoner has no constitutional right to counsel and the district court did not err in denying him habeas relief.

Resendez “conveniently overlooks a critical point: A motion to correct sentence pursuant to Ind. Code § 35-38-1-15 ‘may only be filed to address a sentence that is “erroneous on its face.”’ Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008) (quoting Robinson, 805 N.E.2d at 786). ‘Other sentencing errors must be addressed via direct appeal or post-conviction relief.’ Id.; see also Robinson, 805 N.E.2d at 787. The Indiana Supreme Court has held ‘that a motion to correct sentence may only be used to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of the statutory authority. 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.”

Affirmed.

11-1121 Resendez v. Smith

Southern District of Indiana, Indianapolis Division, Barker, J., Tinder, J.

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