MEMORANDUM DECISION                                                               FILED
                                                                             Sep 27 2017, 11:19 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             CLERK
                                                                              Indiana Supreme Court
regarded as precedent or cited before any                                        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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Richard Dodd                                             Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Dodd,                                            September 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1706-CR-1211
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff                                       Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D02-9712-CF-550



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017             Page 1 of 4
[1]   Richard Dodd appeals from the trial court’s order denying his motion to modify

      his sentence. On appeal, he argues that the trial court erred in concluding that

      the State’s consent to the filing was required.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In 1998, Richard Dodd was convicted of attempted murder and burglary. He

      received consecutive sentences of fifty and eight years, respectively. His

      convictions were affirmed on direct appeal and our Supreme Court denied

      transfer. Thereafter, Dodd filed various petitions for post-conviction relief and

      motions regarding his sentence. In 2013, the post-conviction court found that

      the consecutive sentences imposed exceeded the maximum permitted for an

      episode of criminal conduct and resentenced Dodd to fifty years for attempted

      murder and a consecutive term of five years for burglary.


[4]   In 2016, Dodd filed the current motion to modify his sentence. The State

      objected and, after a change of judge, the trial court issued a written order

      denying the motion because the State had not consented to the filing. Dodd

      now appeals.


                                          Discussion & Decision


[5]   Dodd argues that the trial court erred in concluding that the State’s consent to

      the filing of the motion to modify was required. This court reviews a trial

      court’s decision on a motion to modify a sentence for an abuse of discretion.
      Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017   Page 2 of 4
      Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied. “An

      abuse of discretion occurs when the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before the court or when the

      court misinterprets the law.” Id. The issue presented here is one of statutory

      interpretation, which is a question of law. See id. When presented with a pure

      question of law, we review the matter de novo. Id.


[6]   The sentence modification statute in effect at the time Dodd was sentenced

      provided that if more than 365 days had elapsed since the defendant began

      serving his or her sentence, the court was permitted to reduce or suspend the

      sentence only with the approval of the prosecuting attorney. See Ind. Code §

      35-38-1-17 (West 1992). In 2014, the modification statute was amended to

      allow nonviolent offenders to twice pursue sentence modification without the

      prosecuting attorney’s consent. Ind. Code § 35-38-1-17(j). Individuals

      classified as “violent criminals,” however, are still required to obtain the

      consent of the prosecuting attorney if the motion to modify is filed more than

      365 days from the date of sentencing. I.C. § 35-38-1-17(k). The statute defines

      “violent criminal” to include individuals convicted of attempted murder. I.C. §

      35-38-1-17(d). In 2015, the legislature again amended the statute to clarify that

      the amended modification statute applies to individuals who, like Dodd,

      committed their crimes or were sentenced prior to July 1, 2014. See I.C. § 35-

      38-1-17(a); Woodford v. State, 58 N.E.3d 282, 285 (Ind. Ct. App. 2016).


[7]   The current version of the modification statute is therefore controlling, but

      because Dodd is classified as a violent criminal under that version of the statute

      Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017   Page 3 of 4
      and more than 365 days have elapsed from the date of his sentencing, the

      prosecutor’s consent was required. Nevertheless, Dodd argues that he should

      not be considered a violent criminal for the purposes of I.C. § 35-38-1-17

      because, at the time he was sentenced, attempted murder was not classified as a

      crime of violence under Ind. Code § 35-50-1-2. But I.C. § 35-50-1-2 addresses

      the limits on the lengths of consecutive sentences for nonviolent felonies arising

      out of an episode of criminal conduct. It has no application to sentence

      modifications and is therefore irrelevant to the case before us. The sentence

      modification statute is self-contained, providing its own definition of “violent

      criminal,” which expressly includes individuals convicted of attempted murder.

      I.C. § 35-38-1-17. Dodd wishes to obtain the benefits of the amended

      modification statute (i.e., the elimination of the consent requirement for

      nonviolent criminals) without being subject to its limitations (i.e., the definition

      of violent criminal). He cannot have it both ways. The trial court correctly

      concluded that the prosecutor’s consent to the motion to modify was required.


[8]   Judgment affirmed.


[9]   Baker, J. and Bailey, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017   Page 4 of 4
