Ronald A. Manley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 20 2017, 8:53 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Ronald Andrew Manley Curtis T. Hill, Jr. Noblesville, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ronald A. Manley, June 20, 2017 Appellant-Defendant, Court of Appeals Case No. 29A04-1611-CR-2715 v. Appeal from the Hamilton Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Paul A. Felix, Judge Trial Court Cause No. 29C01-9506-CF-106

Kirsch, Judge. [1] Ronald A. Manley (“Manley”) appeals the trial court’s denial of his motion for

modification of sentence and raises the following restated issue for our review:

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whether the trial court abused its discretion when it denied Manley’s motion to

modify his sentence. [2] We affirm.

Facts and Procedural History [3] On June 9, 1995, the State charged Manley, as amended, with four counts of

Class B felony child molesting, one count of Class B felony attempted child

molesting, one count of Class C felony vicarious sexual gratification, two

counts of Class C felony child molesting, and one count of Class A

misdemeanor impersonating a public servant. These charges stemmed from

crimes that occurred at various times in 1994 and 1995. The Class C felony

vicarious sexual gratification and one count of Class C felony child molesting

were later dismissed. Following a jury trial in September 1997, Manley was

convicted of three counts of Class B felony child molesting, Class B felony

attempted child molesting, Class C felony child molesting, and Class A

misdemeanor impersonating a public servant and was acquitted of one count of

Class B felony child molesting. The trial court sentenced him on May 22, 1998

to an aggregate sentence of forty-one years. [4] Manley appealed, and a panel of this court, in an unpublished decision,

affirmed his convictions and sentence on August 31, 1999. On May 16, 2013

and May 20, 2015, Manley filed motions to modify his sentence. On both

occasions, the motions were denied by the trial court. On October 7, 2016,

Manley filed a third motion to modify his sentence based on rehabilitation

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while incarcerated. On October 10, 2016, the State filed an objection to

Manley’s motion and indicated that the State did not consent to the

modification. On October 31, 2016, the trial court denied Manley’s motion to

modify sentence. Manley now appeals.

Discussion and Decision [5] Manley contends that the trial court erroneously denied his motion for sentence

modification. We review a trial court’s decision as to a motion to modify

sentence only for an abuse of discretion. Carr v. State, 33 N.E.3d 358, 358-59

(Ind. Ct. App. 2015), trans. denied. An abuse of discretion has occurred when

the trial court’s decision was “clearly against the logic and effect of the facts and

circumstances before the court.” Id. [6] Manley argues that the trial court abused its discretion when it denied his

motion to modify his sentence. He claims that it was error for the trial court to

deny his motion solely on the objection of the prosecutor pursuant to Indiana

Code section 35-38-1-17(k). Manley asserts that section 35-38-1-17(k) does not

apply to him because he did not commit a violent crime, and therefore, the trial

court had the authority to modify his sentence without the consent of the

prosecutor. Manley further contends that it was a violation of the ex post facto

doctrine to find that he had committed a violent crime because child molesting

was not considered a violent crime at the time he committed his crimes. [7] A trial judge generally has no authority over a defendant after sentencing.

Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015) (citing State v.

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Harper, 8 N.E.3d 694, 696 (Ind. 2014)), trans. denied. One exception is Indiana

Code section 35-38-1-17, which gives trial courts authority under certain

circumstances to modify a sentence after it is imposed. Id. Indiana Code

section 35-38-1-17(a) states that the section “applies to a person who: (1)

commits an offense; or (2) is sentenced before July 1, 2014.” Therefore, section

35-38-1-17 applies to Manley, because he committed his crimes in 1994 and

1995 and was sentenced on May 22, 1998, which are all prior to July 1, 2014. [8] Under subsection (k),

[a] convicted person who is a violent criminal may, not later than three hundred sixty-five (365) days from the date of sentencing, file one (1) petition for sentence modification under this section without the consent of the prosecuting attorney. After the elapse of the three hundred sixty-five (365) day period, a violent criminal may not file a petition for sentence modification without the consent of the prosecuting attorney.

Ind. Code § 35-38-1-17(k). Manley qualifies as a violent criminal under the

statute because he was convicted of child molesting. I.C. § 35-38-1-17(d)(10)

(“violent criminal” means a person convicted of child molesting). [9] Here, Manley filed his third motion for sentence modification on October 6,

2016, which was more than 365 days after he was sentenced. Thus, the trial

court could only grant Manley’s motion for modification of his sentence if he

received the consent of the prosecuting attorney. I.C. § 35-38-1-17(k). The

prosecutor did not consent to Manley’s motion for sentence modification.

Therefore, the trial court could not grant Manley’s requested relief.

Court of Appeals of Indiana | Memorandum Decision 29A04-1611-CR-2715 | June 20, 2017 Page 4 of 6 [10] Manley argues on appeal that he was not considered a violent criminal when he

committed child molesting in 1994 according to Indiana Code section 35-50-1-

2(a) (1994) because child molesting was not listed as a crime of violence.

However, Indiana Code section 35-38-1-17, the sentence modification statute,

clearly states that “[a]s used in this section, ‘violent criminal’ means a person

convicted of . . . child molesting.” I.C. § 35-38-1-17(d)(10). Therefore, Manley

is considered a violent criminal for sentence modification purposes despite what

crimes were listed in Indiana Code section 35-50-1-2, which is a sentencing

statute placing limits on consecutive sentences based on crimes of violence, in

1994. The trial court did not abuse its discretion in denying Manley’s motion

for sentence modification. [11] Additionally, Manley also claims that classifying child molesting as a violent

crime violates the ex post facto prohibitions of the Indiana Constitution because

the list of violent crimes in Indiana Code section 35-38-1-17 did not exist when

he committed his crimes. He also points to Indiana Code section 35-50-1-2,

which also did not list child molesting as a violent crime at the time his crimes

were committed. An ex post facto law applies retroactively to disadvantage an

offender’s substantive rights. Collins v. State, 911 N.E.2d 700, 712 (Ind. Ct.

App. 2009), trans. denied. To determine whether a particular statute is an ex

post facto law, we examine whether the change increases the penalty by which

a crime is punishable or alters the definition of criminal conduct. Id. [12] In the present case, the effect of the 2015 amendment to section 35-38-1-17 was

to leave Manley in the same position he was in when he committed his crimes

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in 1994 and 1995. The pertinent portion of the statute in effect at the time of

the commission of Manley’s crime read as follows:

If more than three hundred sixty-five (365) days have elapsed since the defendant began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney . . . .

I.C. § 35-38-1-17(b) (West Supp. 1992). The 2015 amendment to section 35-38-

1-17 did not increase the punishment for, or change the elements of, any crime

or deprive anyone of a defense or lesser punishment. Under either of the

versions of the statute, Manley was required to have approval of the prosecutor

in order to have his sentence modified. The change in the statute merely

permitted non-violent criminals to petition for sentence modification without

prosecutorial approval. As such, we conclude that it does not violate

constitutional prohibitions against ex post facto laws. See Collins, 911 N.E.2d at

712. Finding that the trial court correctly applied Indiana Code section 35-38-1-

17, and that the law did not violate Manley’s constitutional rights, we affirm. [13] Affirmed. [14] Mathias, J., and Altice, J., concur.

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