Robert Matthew Nolan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 29 2019, 10:34 am

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

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Robert Matthew Nolan Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana

Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Matthew Nolan, October 29, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-570 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Maria D. Granger, Appellee-Plaintiff Judge Trial Court Cause No. 22D03-0907-FB-1637

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-570 | October 29, 2019 Page 1 of 5

Case Summary [1] Robert M. Nolan (“Nolan”) appeals the denial of his petition for modification

of his sentence. He raises several issues on appeal, which we consolidate and

restate as the following dispositive issue: whether the trial court had authority

to modify Nolan’s sentence. Concluding that it did not, we affirm.

Facts and Procedural History [2] On July 8, 2009, the State charged Nolan with rape, child molesting, and two

counts of child seduction. On July 2, 2010, a jury found Nolan guilty as

charged. On August 6, 2010, the trial court sentenced Nolan to an aggregate

sentence of thirty years in the Indiana Department of Correction with eight

years suspended to probation. We affirmed Nolan’s convictions and sentence

on direct appeal. Nolan v. State, no. 22A01-1007-CR-433, 2012 WL 456537

(Ind. Ct. App. Feb. 14, 2012), trans. denied (Nolan I). We also denied Nolan’s

petition for post-conviction relief. Nolan v. State, no. 22A01-1708-PC-1816,

2018 WL 3029018 (Ind. Ct. App. June 19, 2018), trans. denied (Nolan II). [3] On June 17, 2014, Nolan filed a petition to modify sentence. Following a

hearing, the trial court denied the petition on March 2, 2015, and we affirmed

the denial of modification. Nolan v. State, no. 22A01-1503-CR-120, 2016 WL

1274125 (Ind. Ct. App. Mar. 31, 2016), trans. denied (Nolan III). On May 1,

2018, Nolan again filed a petition to modify sentence. Following a hearing at

which the State objected to Nolan’s petition to modify, the trial court denied

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Nolan’s petition on November 30, 2018. Nolan filed a motion to correct error

on December 21, 2018, and the court held a hearing on that motion on

February 4, 2019. On February 7, the trial court denied Nolan’s motion to

correct error. This appeal ensued.

Discussion and Decision [4] Nolan contends the trial court erred when it denied his May 1, 2018, petition to

modify his sentence. We review a trial court’s decision regarding sentence

modification for an abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196

(Ind. 2010). “An abuse of discretion occurs when the trial court’s decision is

clearly against the logic and effect of the facts and circumstances or it is a

misinterpretation of the law.” Newson v. State, 86 N.E.3d 173, 174 (Ind. Ct.

App. 2017) (citing Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014)), trans. denied.

However, we review matters of statutory interpretation de novo. Gardiner, 928

N.E.2d at 196. [5] Indiana Code Section 35-28-1-17 governs the reduction and suspension of

sentences and applies to defendants who committed their offenses or were

sentenced before July 1, 2014. Subsection (k) provides that,

“not later than three hundred sixty-five (365) days from the date of sentencing,” a violent criminal may file one motion for sentence modification without the consent of the prosecuting attorney. After 365 days, a violent criminal is ineligible to move for sentence modification without the prosecuting attorney’s consent. I.C. § 35-38-1-17(k).

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Newson, 86 N.E.3d at 174. A “violent criminal” is defined as a person

convicted of certain enumerated offenses, including rape and child molesting.

I.C. § 35-28-1-17(d)(8), (10). [6] Because (1) Nolan was convicted of rape and child molesting and is therefore a

“violent criminal” as defined by the statute; (2) he committed, and was

sentenced for, his offenses before July 1, 2014; and (3) more than 365 days have

passed since the date of his sentencing, he is ineligible to file a petition for

sentence modification without the prosecuting attorney’s consent. See I.C. § 35-

28-1-17(a), (d), (k). The State objected to his motion for sentence modification.

Therefore, the trial court was without authority to modify Nolan’s sentence.1

Id.; see also Newson, 86 N.E.3d at 174; Manley v. State, 868 N.E.2d 1175, 1179

(Ind. Ct. App. 2007), trans. denied. [7] However, like the defendant in Newson, Nolan argues that he is not a “violent

criminal” as to two of his convictions—i.e., those for child seduction—because

those convictions are not for one of the enumerated offenses listed under

subsection (d) of the statute. As Newson did, Nolan argues that the trial court

could have modified his sentence for those two non-violent offenses. However,

as we explained in Newson, “[t]he statute defines the type [of] offender who may

seek modification, not the specific crimes or portions of sentences that may be

modified.” Newson, 86 N.E.3d at 175 (quotations omitted). Thus, Nolan “is no

1 Thus, we do not address Nolan’s lengthy arguments attacking his sentences on the merits.

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less a ‘violent criminal’ for purposes of Indiana Code Section 35-38-1-17(d)

because he was convicted of both [violent crimes and non-violent crimes].” Id. [8] Nolan also seems to maintain that the sentence modification statute, as

interpreted in Newson, violates Article 1, Section 18, of the Indiana

Constitution, which provides: “The penal code shall be founded on the

principles of reformation, and not of vindictive justice.” Again, this Court has

previously addressed this same argument; as we have repeatedly noted, “it is

well-settled Section 18 applies only to the penal code as a whole and not to

individual sentences.” Cornelious v. State, 988 N.E.2d 280, 282 n.4 (Ind. Ct.

App. 2014), trans denied; see also, e.g., Henson v. State, 707 N.E.2d 792, 796 (Ind.

1999) (same). Therefore, Nolan’s Article 1, Section 18 claim also fails.

Conclusion [9] Because the trial court did not have authority to modify Nolan’s sentence

pursuant to Indiana Code Section 35-38-1-17, it did not abuse its discretion

when it denied his petition for sentence modification. [10] Affirmed.

Najam, J., and May, J., concur.

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