John R. Northern v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 17 2016, 9:08 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE John R. Northern Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana

James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John R. Northern, May 17, 2016 Appellant-Defendant, Court of Appeals Case No. 56A03-1510-CR-1614 v. Appeal from the Newton Superior Court State of Indiana, The Honorable Daniel J. Molter, Appellee-Plaintiff. Judge Trial Court Cause No. 56D01-1104-FA-2

May, Judge. Court of Appeals of Indiana | Memorandum Decision 56A03-1510-CR-1614 | May 17, 2016 Page 1 of 5 [1] John R. Northern, pro se, appeals the denial of his motion to modify his

sentence. The State agrees the trial court erred by denying his motion without

considering its merits. We reverse and remand.

Facts and Procedural History [2] On April 13, 2011, the State charged Northern with two counts of Class A

felony dealing in methamphetamine 1 and one count of Class C felony

possession of chemical reagents or precursors with intent to manufacture

methamphetamine. 2 On December 14, 2011, a jury found Northern guilty of all

three crimes. Prior to sentencing, the State moved to vacate the possession of

reagents conviction, and the trial court granted that motion. In January 2012,

the court imposed a thirty-year sentence, with ten years suspended to probation.

Northern appealed his conviction and sentence, and we affirmed in an

memorandum decision. Northern v. State, 979 N.E.2d 190 (Ind. Ct. App. 2012),

trans. denied. [3] On July 6, 2015, Northern filed a pro se motion for modification of his sentence.

The State objected. The court held a hearing and then denied the motion after

finding it had “no authority to act on the Defendant’s Motion without the

consent of the State of Indiana and therefore denies the Defendant’s Motion for

1 Ind. Code § 35-48-4-1.1(a)(1) (2006). 2 Ind. Code § 35-48-4-14.5(c) (2006).

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Modification of Sentence or Alternative Sentence.” (App. at 18.) Northern

filed a motion to reconsider, which the trial court also denied.

Discussion and Decision [4] Northern argues, and the State agrees, that the trial court erred when it

determined it needed the prosecutor’s consent to consider the merits of

Northern’s motion to modify his sentence. In light of statutory amendments

that became effective just before Northern filed his petition, we agree the trial

court erred. [5] Generally we review denial of a motion to modify a sentence for an abuse of

discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). However, we

“review matters of statutory interpretation de novo because they present pure

questions of law.” State v. Brunner, 947 N.E.2d 411, 416 (Ind. 2011), reh’g

denied. [6] At issue in this case is Indiana Code § 35-38-1-17, which defines when a trial

court has authority to modify a sentence. In 2013, the statute provided a

defendant who had served more than 365 days of his sentence could move to

have his sentence modified by the trial court, “subject to the approval of the

prosecuting attorney.” Ind. Code § 35-38-1-17(b) (2013) (emphasis added). Thus,

if the prosecutor did not approve, the trial court had no authority to modify a

sentence. [7] Effective July 1, 2014, our legislature eliminated the need for the prosecuting

attorney’s approval. See Ind. Code § 35-38-1-17(c) (2014) (providing, after Court of Appeals of Indiana | Memorandum Decision 56A03-1510-CR-1614 | May 17, 2016 Page 3 of 5

defendant has served 365 days, court has authority to reduce or suspend

sentence to a sentence available at the time of sentencing and “court must

incorporate its reasons in the record”). However, another statute that also took

effect in 2014 made the new version of Indiana Code § 35-38-1-17 inapplicable

to “(1) penalties incurred; (2) crimes committed; or (3) proceedings begun;

before [July 1, 2014]. Those penalties, crimes, and proceedings continue and

shall be imposed and enforced under prior law as if [the new sentencing laws]

had not been enacted.” Ind. Code § 1-1-5.5-21(a) (2014). Accordingly, if

Northern, who was sentenced in 2012, had petitioned for sentence modification

in 2014, the court could not have modified his sentence without the

prosecutor’s approval. See, e.g., Swallows v. State, 31 N.E.3d 544, 547 (Ind. Ct.

App. 2015) (holding defendant sentenced in 1989 had no right to sentence

modification without prosecutor’s approval under 2014 version of Ind. Code §

35-38-1-17), trans. denied, superseded by statutory amendment. [8] Then, however, the legislature passed Public Law 164-2015, which took effect

May 5, 2015. That law amended Indiana Code § 35-38-1-17 to explicitly

provide the sentencing relief available therein applied retroactively to “a person

who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.” Ind.

Code § 35-38-1-17(a) (2015); see also Vazquez v. State, 37 N.E.3d 962, 964 (Ind.

Ct. App. 2015) (discussing statutory change). As such, Northern, who was

sentenced in 2012, became eligible to petition the trial court for reduction or

suspension of his sentence without the approval of the prosecuting attorney. See

Ind. Code § 35-38-1-17 (2015). Therefore, as Northern argues, and the State

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concedes, the trial court erred when it denied Northern’s motion based solely

on the lack of prosecutorial approval.

Conclusion [9] We reverse the denial of Northern’s motion for modification of his sentence,

and we remand for the trial court to consider the merits of Northern’s petition. [10] Reversed and remanded.

Baker, J., and Brown, J., concur.

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