 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.
                                                               Dec 30 2013, 8:57 am




ATTORNEYS FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER                                TIMOTHY P. BRODEN
Attorney General of Indiana                       Lafayette, Indiana

ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                 )
                                                  )
       Appellant-Plaintiff,                       )
                                                  )
           vs.                                    )        No. 79A02-1303-CR-272
                                                  )
TAMMY SUE HARPER,                                 )
                                                  )
       Appellee-Defendant.                        )

                   APPEAL FROM THE TIPPECANOE CIRCUIT COURT
                         The Honorable Donald L. Daniel, Judge
                             Cause No. 79C01-1102-FB-5


                                       December 30, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       The State of Indiana appeals the order of the Tippecanoe Circuit Court modifying

the sentence of Tammy Sue Harper (“Harper”). On appeal, the State claims that the trial

court was without authority to modify Harper’s sentence because more than 365 days had

passed since Harper was sentenced and the county prosecutor did not approve of the

modification.

       We agree and reverse.

                               Facts and Procedural History

       On July 29, 2011, Harper pleaded guilty to Class D felony residential entry and

Class D felony theft and admitted that she was a habitual offender. On September 19,

2011, the trial court sentenced Harper to three years on the residential entry conviction

and enhanced this sentence by an additional three years under the habitual offender

statute. The trial court also sentenced Harper to a concurrent term of three years on the

theft conviction, for an aggregate sentence of six years executed.

       On September 27, 2011, the trial court entered an amended sentencing order

indicating that it would consider modifying Harper’s sentence if she completed the

“Purposeful Incarceration Program.”       Appellant’s App. p. 54.        Subsequently, on

December 5, 2012, Harper filed a motion to modify her sentence. The trial court held a

hearing on this motion on January 25, 2013.

       At the hearing, the trial court and the chief probation officer noted that the local

community corrections program was unlikely to accept Harper, as she had “been there in

the past and ran up a pretty substantial bill to the tune of about $2,675.00.” Tr. p. 2. The

trial court then stated:

                                              2
      In reviewing this it was my thought that I think Ms. Harper is at a point in
      her life where [she] is no longer a threat to society and it seemed to me
      appropriate that we take her off that tax payer rolls and get her back in the
      community. I was thinking Home with Hope or Seeds of Hope or
      something like that. My concern is that I think I may have no legal basis to
      do that and so I kind of wanted to have a discussion about this. I from time
      to time tell Mr. McDaniel that I am going to do something and then I don’t
      think that I have the legal power to do it which puts the Prosecutor’s Office
      in the position to either having to appeal my order which nobody wants to
      do well Mr. McDaniel may want to do it just for the fun of it but—but I
      don’t want to keep putting Mr. McDaniel in a position that he feels—I put
      him a (inaudible) position where he is forced to do something. I would like
      to put Ms. Harper in Home with Hope to see if she makes it. If you tell me
      that your office is going to appeal that then I will save everybody the time
      and the energy and save the tax payers the money and I won’t do it. And
      you probably want to think about that and talk about it with somebody else.

Tr. pp. 2-3. (emphases added). The deputy prosecuting attorney who appeared at the

hearing indicated in the affirmative. The following exchange between the court and the

chief probation officer then ensued:

      [COURT]:             I’m just trying to get along but I would ask that you be
                           here because I wanted to expressly ask you your
                           thoughts about your guess about Ms. Harper and what
                           she is likely to do or not do and how she might do at
                           Home or Seeds.

      [OFFICER]:           Well when we met with the representative from the
                           Department of Corrections they specifically told us
                           that these therapeutic communities that they have are
                           very intense programs and when they complete them
                           they like to see the offenders return to the community
                           under just some basic supervision.

      [COURT]:             Rather than a Home with Hope kind.

      [OFFICER]:           Well they didn’t necessarily say that directly. They
                           said that the one thing that they would like to see them
                           do are the 12 step meetings, the sponsors, the home
                           groups. I don’t know if they really ever considered
                           Home with Hope I think that’s a good idea. I saw

                                           3
                           Home with Hope Director back here a little bit ago but
                           I turned around and she was gone. My only concern is
                           though that she is what about a year, a year or so into a
                           six year executed sentence with her time cuts I think
                           she is looking at an earliest possible discharge for
                           parole is maybe February of next year. I would be
                           willing to give her a shot if you want to put her on
                           probation at Home with Hope. I don’t have a problem
                           with that but again that’s up to—

      [COURT]:             Do you think I am (inaudible)—do you think it’s a bad
                           move?

      [OFFICER]:           Habitual Offender thing really throws me a little bit
                           but you know I read through the file and the Pre-
                           Sentence Report and it looks like most of that is
                           substance abuse related and given the fact that she is
                           48 I think that’s probably one of those offenders that
                           has aged out and she’s just tired of it and so the
                           chances of her getting into trouble again you know
                           maybe pretty slim but there’s always that chance.

      [COURT]:             Oh yeah. None of us know for sure.

      [OFFICER]:           Right.

      [COURT]:             I don’t think that was exactly a ringing endorsement of
                           my plan.

      [OFFICER]:           Sorry.

      [COURT]:             I am inclined to give it a try. Sometime in the next
                           week or so if you have an opportunity to get back with
                           me I will modify her sentence and over your screaming
                           objection. . . . The Court directs that the Tippecanoe
                           County Prosecutor’s Office provide more input to the
                           Court with—in the near future [whenever] that may be.

Tr. pp. 3-5 (emphases added).

      The chronological case summary indicates that the prosecutor’s office did not

provide the trial court with any further input on the matter. Then, on March 5, 2013, the

                                            4
trial court entered an order suspending Harper’s sentence to probation. This prompted

the prosecutor to action, and the State filed a request to stay the modification order

pending appeal, which the trial court denied. The State now appeals.1

                                    Discussion and Decision

       At issue in the present case is the statute governing the modification of sentences,

which provides in relevant part:

       (a) Within three hundred sixty-five (365) days after:
            (1) a convicted person begins serving the person’s sentence;
            (2) a hearing is held:
                (A) at which the convicted person is present; and
                (B) of which the prosecuting attorney has been notified; and
            (3) the court obtains a report from the department of correction
            concerning the convicted person’s conduct while imprisoned;
       the court may reduce or suspend the sentence. The court must incorporate
       its reasons in the record.
       (b) If 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. . . .

Ind. Code § 35-38-1-17 (emphasis added). Pursuant to this statute, if a motion to modify

a sentence is filed within the 365-day period, modification of the sentence is left to the

discretion of the trial court. Hawkins v. State, 951 N.E.2d 597, 599 (Ind. Ct. App. 2011),

trans. denied. However, if the motion is made outside the 365-day period, the authority

of the trial court depends on whether the prosecuting attorney approves. If the prosecutor

agrees, then the matter is within the discretion of the trial court; if the prosecutor

disagrees, then the trial court lacks authority to modify the sentence. Id.


1
   We have previously held that the State has the limited authority to appeal under such circumstances.
See State v. Holloway, 980 N.E.2d 331, 333-34 (Ind. Ct. App. 2012).
                                                  5
       In the present case, the State claims that the prosecutor did not agree with the trial

court’s sentencing modification and that the trial court therefore was without authority to

modify Harper’s sentence. Contrariwise, Harper argues that the prosecutor acquiesced in

the trial court’s decision to modify and that the trial court therefore did have authority to

modify her sentence. We are constrained to agree with the State.

       To be sure, this court has used the term “acquiesce” when describing the statutory

requirement that the prosecutor approve of the sentence modification. See Hawkins, 951

N.E.2d at 599. But the plain language of the statute itself requires more than the lack of

an objection; it requires “approval of the prosecuting attorney.” I.C. § 35-38-1-17(b).

       Here, the deputy prosecuting attorney who appeared at the hearing did not seem to

have much of an objection to the trial court’s desire to modify the sentence. Indeed, the

prosecuting attorney said very little during the hearing. Nevertheless, the fact remains

that the prosecuting attorney, through the deputy prosecuting attorney or otherwise, never

actually approved of the sentence modification. Without such approval, the trial court

lacked the statutory authority to modify Harper’s sentence.

       This is not to say that we are not unsympathetic to the trial court’s position. The

court specifically told the deputy prosecuting attorney that it would not modify Harper’s

sentence if the State objected. The trial court also directed the prosecuting attorney to

inform the trial court of whether it approved of or objected to the sentence modification.

When no such objection or approval was forthcoming, and with what it considered to be a

worthy defendant languishing behind bars, the trial court went ahead and modified

Harper’s sentence. Only then did the State forcefully object.

                                             6
      We are not at liberty to ignore the clear language of the statute, which requires the

approval of the prosecuting attorney to sentence modification that occurs outside the 365-

day time limit. Here, the prosecuting attorney failed to give such approval, and the trial

court was without authority to modify Harper’s sentence.

      Reversed.

BRADFORD, J., and PYLE, J., concur.




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