      MEMORANDUM DECISION                                                   Nov 30 2015, 6:21 am


      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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
      Joel C. Wieneke                                          Gregory F. Zoeller
      Wieneke Law Office, LLC                                  Attorney General of Indiana
      Plainfield, Indiana
                                                               Jodi Kathryn Stein
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Lozier,                                      November 30, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A01-1503-CR-105
              v.                                               Appeal from the Dearborn Circuit
                                                               Court.
                                                               The Honorable Eugene A. Stewart,
      State of Indiana,                                        Senior Judge.
      Appellee-Plaintiff.                                      Cause No. 15C01-9303-CF-9




      Friedlander, Senior Judge

[1]   Christopher Lozier appeals from the trial court’s denial of his petition for

      sentence modification, contending that the trial court abused its discretion. We

      affirm and remand.




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[2]   Lozier and two friends planned a robbery in order to obtain some extra cash.

      After several planning sessions, Lozier and Daniel Widener, who were eighteen

      years old and seventeen years old respectively, waited outside a bank for a night

      manager of the local Ponderosa to make the store’s evening deposit. After

      Vanessa Wells, Ponderosa’s night manager, arrived at the bank to make her

      deposit, shots were fired from a revolver supplied by the third friend, Shawn

      Davis, who was eighteen years old. Wells ultimately died from those initial

      and subsequent gunshot wounds. Lozier and Widener took the money and hid

      Wells’ body on the floorboard of the back seat of her car, drove the car near a

      landfill, hid the car in some trees, and disposed of other incriminating evidence

      in pools of water at the landfill. The handgun was tossed into the Ohio River.


[3]   Widener and Lozier each pleaded guilty to felony murder and conspiracy to

      commit robbery. Sentencing was left to the discretion of the trial court. Lozier

      was sentenced to sixty years for his felony-murder conviction and to ten years

      for his conviction of conspiracy to commit robbery on January 7, 1994. The

      sentences were ordered to be served consecutively.


[4]   Widener successfully perfected a direct appeal which resulted in a reduction of

      his sentence. See Widener v. State, 659 N.E.2d 529 (Ind. 1995). Widener’s

      sentence was reduced to fifty years for the felony-murder conviction to be

      served concurrently with his ten year sentence on the conviction for conspiracy

      to commit robbery. Id.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1503-CR-105 | November 30, 2015   Page 2 of 5
[5]   Lozier was unable to pursue a direct appeal challenging his sentence. He

      attempted to file belated motions for appeal, pro se, but was unsuccessful in

      those attempts. Lozier’s family hired an attorney who filed a motion for

      belated appeal, but the trial court denied that motion. No appeal was taken

      from that denial.


[6]   On February 14, 2014, Lozier filed a petition for modification of sentence. The

      State objected to that petition on February 25, 2014. The trial court initially

      denied the motion on May 30, 2014, stating in its order that the motion was

      denied because of the terms of Lozier’s plea agreement. The trial court held a

      hearing on the petition on July 18, 2014 and November 13, 2014 after

      apparently discovering that Lozier’s sentence was left open to the trial court’s

      discretion. Lozier’s petition for sentence modification was denied on February

      23, 2015, the trial court’s order included the following language:

              [Lozier] seeks a modification of his sentence by challenging the
              enhancement portion of his sentence for Murder. [Lozier] is not
              entitled to a reduction in sentence, whether it be as post-
              conviction relief or as a request for sentence modification.
              [Lozier’s] request for modification of sentence is accordingly
              denied.
      Appellant’s Appendix p. 103. Lozier now appeals.


[7]   Lozier’s brief contains a detailed account of the significant efforts Lozier has

      made at reformation while serving his sentence. Although we appreciate

      Lozier’s efforts, given the procedural posture of Lozier’s appeal, we are




      Court of Appeals of Indiana | Memorandum Decision 15A01-1503-CR-105 | November 30, 2015   Page 3 of 5
       constrained by case law interpreting statutory language to deny him all of the

       relief he seeks.


[8]    The version of Indiana Code section 35-38-1-17(b) (West, Westlaw current with

       all 2015 First Regular Session of the 119th General Assembly legislation) in

       effect at the time Lozier filed his petition provides that “[i]f more than three

       hundred sixty-five (365) days have elapsed since the convicted person 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.” Lozier’s February 14, 2014 petition was filed long

       after three hundred sixty-five days had elapsed since he began serving his

       sentence on January 7, 1994. Lozier did not have the approval of the

       prosecuting attorney as required by statute in that circumstance.


[9]    In Manley v. State, 868 N.E.2d 1175, 1179 (Ind. Ct. App. 2007), we quoted the

       Supreme Court’s opinion in State v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001),

       which held that pursuant to the statute “where 365 days have passed since the

       sentence was imposed, and the prosecutor has not approved of the requested

       sentence modification, ‘the trial court lack[s] authority to modify [the original]

       sentence.’” The trial court did not err by denying Lozier’s motion because it

       was without authority to grant it.


[10]   Lozier also notes the language of the trial court’s order denying relief in which

       the trial court states that Lozier is not entitled to a reduction of his sentence if

       brought as a petition for post-conviction relief. The State takes no position


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       regarding Lozier’s request that we remand this matter to the trial court to issue

       an order denying the petition for sentence reduction without making reference

       to Lozier’s entitlement to relief via post-conviction proceedings. Appellee’s Br.

       pp. 5-6 n.3. Because this language in the order appears to be extraneous, but

       could possibly be construed as potentially foreclosing Lozier’s opportunity for

       post-conviction relief, we remand the matter to the trial court to enter an order

       removing any reference to post-conviction relief proceedings.


[11]   Judgment affirmed and remanded.


       Najam, J., and Altice, J., concur.




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