Wendy J. Jordan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 24 2016, 11:42 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana

Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Wendy J. Jordan, May 24, 2016 Appellant-Defendant, Court of Appeals Case No. 33A01-1511-CR-1926 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Mary G. Willis, Appellee-Plaintiff. Judge Trial Court Cause No. 33C01-0803-FA-15

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1926 | May 24, 2016 Page 1 of 3

Statement of the Case [1] Wendy Jordan appeals the trial court’s denial of her petition for modification of

her sentence. Jordan presents a single issue for our review, namely, whether

the trial court abused its discretion when it denied her petition. We affirm.

Facts and Procedural History [2] On August 28, 2008, Jordan pleaded guilty to possession of cocaine, as a Class

A felony, and, in exchange for her plea, the State dismissed two other felony

charges. Jordan’s plea agreement provided for a twenty-year sentence in the

Department of Correction. The trial court accepted Jordan’s guilty plea and

sentenced her to twenty years executed. [3] On November 18, 2009, and on September 26, 2013, Jordan filed petitions for

the modification of her sentence, and the trial court denied those petitions. On

July 16, 2015, Jordan filed her third petition for modification of her sentence,

and the prosecutor objected. The trial court denied that petition following a

hearing. This appeal ensued.

Discussion and Decision [4] Jordan contends that the trial court abused its discretion when it denied her

third petition for modification of her sentence. In particular, Jordan maintains

that the trial court erroneously concluded that it did not have authority to

modify her sentence because she had agreed to the twenty-year sentence

pursuant to her plea agreement. We do not address that issue, however,

because Jordan’s petition, her third, was prohibited by statute. Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1926 | May 24, 2016 Page 2 of 3

[5] Indiana Code Section 35-38-1-17(j) (2015)1 provides in relevant part that a

convicted person who, like Jordan, is not a violent criminal may file a petition

for sentence modification under this section “a maximum of two (2) times

during any consecutive period of incarceration” without the consent of the

prosecutor. Here, because Jordan appeals from the denial of her third petition

for modification of her sentence and the prosecutor objected to the petition, the

trial court properly denied it. See, e.g., Vazquez, 37 N.E.3d at 964 (holding in

relevant part that defendant’s third petition for modification of sentence was

properly dismissed because it “exceeded the authorized number of filings”). [6] Affirmed.

Robb, J., and Crone, J., concur.

1 Effective May 5, 2015, Indiana Code Section 35-38-1-17 was amended and “applies to a person who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.” Thus, the statute, as amended, applies to Jordan. See Vazquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015).

Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1926 | May 24, 2016 Page 3 of 3