Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                FILED
                                                              Sep 11 2012, 9:27 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,                            CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
collateral estoppel, or the law of the case.                              tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MARK LEEMAN                                        GREGORY F. ZOELLER
Cass County Conflict Public Defender               Attorney General of Indiana
Logansport, Indiana
                                                   JAMES B. MARTIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

ARGELIO GONZALES,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 09A02-1202-CR-92
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE CASS CIRCUIT COURT
                            The Honorable Leo T. Burns, Judge
                              Cause No. 09C01-9712-CF-53



                                       September 11, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
      Argelio Gonzales appeals the trial court’s order denying his motion for sentence

reduction contending that the trial court erred in holding that in the absence of the

approval of the prosecuting attorney it had no authority to reduce a criminal sentence

after more than three hundred sixty-five days had elapsed since the convicted person

began serving the sentence pursuant to Ind. Code §35-38-1-17.

      We affirm.

      In April of 1998, Gonzales was convicted of possession of cocaine, as a Class A

felony,1 dealing in cocaine, as a Class A felony, 2 possession of marijuana, as a Class D

felony,3 and maintaining a common nuisance, as a Class D felony.4 On May 27, 1998,

the trial court sentenced Gonzales to concurrent sentences of thirty years for each of the

Class A felonies and eighteen months for each of the Class D felonies, and remanded him

to begin serving his sentences. In 2005, Gonzales’ conviction and sentence for dealing in

cocaine was set aside, but his remaining convictions and sentences remained in effect.

      In September of 2011, Gonzales filed a petition to modify his sentence, and the

State objected. The trial court summarily denied the petition pursuant to Ind. Code §35-

38-1-17 which provides in operative part:

      (a) Within three hundred sixty-five (365) days after:
      (1) a convicted person begins serving the person’s sentence;
       ...


      1
          See Ind. Code § 35-48-4-6.
      2
          See Ind. Code § 35-48-4-1.
      3
          See Ind. Code § 35-48-4-11.
      4
          See Ind. Code § 35-48-4-13.

                                            2
      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 . . . , the court may reduce or
      suspend the sentence, subject to the approval of the prosecuting attorney. . .
      .

(Emphasis added.)

      On appeal, Gonzales contends that the prosecutor’s discretion under this section is

subject to judicial review and that the prosecutor abused his discretion in refusing his

approval. In State v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001), our Supreme Court said,

“the trial court lacked authority to modify Fulkrod’s sentence.” Even though the trial

court in Fulkrod had “particularly reserved . . . the right to modify this sentence” at

sentencing, our Supreme Court said that the purported reservation was “of no moment.

The court was seeking to reserve a power that it did not possess beyond the 365-day

limit.” (Emphasis added.)

      So, too, here. In the absence of the approval of the prosecuting attorney, a trial

court has no authority to reduce a criminal sentence beyond the 365-day limit. Holding

that a trial court has the authority to judicially review the prosecutor’s discretion

regarding such approval would be contrary to the express directive of our Supreme Court.

      Affirmed.

NAJAM, J., and MAY, J., concur.




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