from the Boone Superior Court The Honorable Matthew C.
Kincaid, Judge, Trial Court Cause No. 06D01-1606-F3-149
Appellant Pro Se John Jay Lacey Carlisle, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana J.T. Whitehead Deputy Attorney General
John Jay Lacey ("Lacey") appeals, pro se, his
thirteen-year sentence enhancement based upon habitual
offender status. He raises three issues, which we consolidate
and restate as whether there was sufficient evidence to
support his habitual offender enhancement.
We reverse and remand with instructions.
AND PROCEDURAL HISTORY
On June 22, 2016, the State charged Lacey with aggravated
battery, as a Level 3 felony,  and subsequently filed a notice
also seeking a habitual offender enhancement,  based on an
October 16, 2012, Florida conviction for battery on an
officer, as a Level 3 felony,  and a March 2, 2014, Florida
conviction for aggravated battery, as a Level 3
felony. On November 18, 2016, Lacey and the State
entered into a plea agreement under which Lacey pled guilty
to aggravated battery and admitted his status as a habitual
offender. The plea agreement left sentencing to the trial
court's discretion and agreed to a cap of fourteen years
on the habitual offender enhancement.
On February 16, 2017, the trial court sentenced Lacey to
fifteen years for aggravated battery, enhanced by thirteen
years for being a habitual offender. Lacey filed a motion to
correct erroneous sentence pursuant to Indiana Code Section
35-38-1-15 on August 15, 2018, and the trial court denied
that motion on October 11. This appeal ensued.
TO CORRECT SENTENCE/APPEAL
As an initial matter, we note that the State does not
challenge Lacey's right to seek a correction of the
judgment imposing the habitual offender enhancement under
Indiana Code Section 35-38-1-15. That statute permits the
filing of a motion to correct sentence when a sentence is
defective on its face in light of the statutory authority.
See Woodcox v. State, 30 N.E.3d 748, 751
(Ind.Ct.App. 2015) (citing Robinson v. State, 805
N.E.2d 783, 786 (Ind. 2004)). "A sentence is defective
on its face if it violates express statutory authority at the
time the sentence is pronounced, as when the sentence falls
outside the statutory parameters for the particular offense
or is based on an erroneous interpretation of a penalty
provision." Id. (quotations and citation
omitted). Lacey alleges that his sentence violated express
statutory authority at the time the sentence was pronounced;
therefore, his motion to correct sentence pursuant to Indiana
Code Section 35-38-1-15 was appropriate.
Nor does the State challenge Lacey's right to appeal his
sentence, despite his plea agreement waiving that right.
Because Lacey's plea agreement did not fix his sentence,
he may appeal the merits of the sentence. Creech v.
State, 887 N.E.2d 73, 74 (Ind. 2008) (also noting
"[t]he same is true even when the defendant agrees to a
sentencing cap or range"); see also Haddock v.
State, 112 N.E.3d 763, 767 (Ind.Ct.App. 2018) (citing
Crider v. State, 984 N.E.2d 618, 623 (Ind. 2013))
("[I]f a sentence imposed is illegal, and the defendant
does not specifically agree to the ...