MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 19 2020, 8:52 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Brad Davis                                               Curtis T. Hill, Jr.
Plainfield Correctional Facility                         Attorney General
Plainfield, Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brad Davis,                                              June 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2686
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G03-1102-MR-9870



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2686 | June 19, 2020                 Page 1 of 7
                                             Case Summary
[1]   Brad Davis appeals the denial of his motion for sentence modification. Because

      he has failed to present a cogent argument, we affirm.


                                 Facts and Procedural History
[2]   On February 13, 2011, Davis shot and killed Bryan Vizuet. The State charged

      Davis with murder and class A misdemeanor carrying a handgun without a

      license. A jury found Davis guilty of the lesser included offense of class A

      felony voluntary manslaughter and class A misdemeanor carrying a handgun

      without a license. On February 10, 2012, the trial court sentenced Davis to

      thirty-five years in the Department of Correction (DOC) with five years

      suspended.


[3]   On July 31, 2019, Davis, by counsel, filed a motion requesting the trial court to

      order the DOC to prepare a conduct report in anticipation of a motion for

      sentence modification. The trial court ordered the DOC to prepare the report,

      which the DOC filed on August 8, 2019. The DOC report shows that Davis

      completed the GRIP Program, the Purposeful Living Units Serve (PLUS)

      Program, and the DOL Assembly Tech Program, and has been continuously

      assigned to work and has never received a conduct report for poor behavior.

      The DOC report indicates that Davis’s earliest possible release date is August

      14, 2024. Appellant’s App. Vol. 3 at 12.


[4]   On September 12, 2019, Davis, by counsel, filed a motion for sentence

      modification requesting placement in the Marion County Community

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2686 | June 19, 2020   Page 2 of 7
      Corrections Program. The State filed an objection to Davis’s motion. On

      October 3, 2019, the trial court issued an order denying Davis’s motion. This

      appeal ensued.


                                     Discussion and Decision
[5]   Before addressing Davis’s argument, we note that he has chosen to proceed pro

      se:


              It is well settled that pro se litigants are held to the same legal
              standards as licensed attorneys. This means that pro se litigants
              are bound to follow the established rules of procedure and must
              be prepared to accept the consequences of their failure to do so.
              We will not become an advocate for a party, or address
              arguments that are inappropriate or too poorly developed or
              expressed to be understood.


      Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016) (citations and

      quotation marks omitted), trans. denied (2017).


[6]   Davis argues that the denial of his motion for sentence modification violates

      Article 1, Section 18 of Indiana Constitution, which provides, “The penal code

      shall be founded on the principles of reformation and not of vindictive justice.”

      As best we can discern, Davis contends that the denial of his motion constitutes

      vindictive justice given that (1) his conduct report demonstrated his

      reformation, (2) he has fulfilled the requirements of allegedly applicable Indiana

      Code Chapter 35-38-2.6, and (3) the State’s objection to his motion included

      erroneous, prejudicial statements. Appellant’s Br. at 8. However, Davis has

      failed to set forth a standard of review or cite any case law in support of his

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2686 | June 19, 2020   Page 3 of 7
      argument. Therefore, he has waived this issue by failing to present a cogent

      argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in

      appellant’s brief be supported by cogent reasoning and citations to authorities,

      statutes, and the appendix or parts of the record on appeal); Ind. Appellate Rule

      46(A)(8)(b) (requiring that argument include for each issue a concise statement

      of the applicable standard of review); Casady v. State, 934 N.E.2d 1181, 1190

      (Ind. Ct. App. 2010) (failure to cite rules of evidence and case law waived claim

      of improperly admitted evidence), trans. denied (2011).


[7]   Waiver notwithstanding, Davis’s challenge to the denial of his motion for

      sentence modification is meritless. As a whole, Davis’s arguments are more

      appropriately framed as whether the trial court abused its discretion in denying

      his motion for sentence modification. “We review a trial court’s decision on a

      motion for sentence modification for abuse of discretion.” Newson v. State, 86

      N.E.3d 173, 174 (Ind. Ct. App. 2017), 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 or it is a misinterpretation of the law.” Id.


[8]   “A trial judge generally has no authority over a defendant after sentencing;

      however, the legislature may give the court authority, under certain

      circumstances, to modify a defendant’s sentence.” State v. Harper, 8 N.E.3d

      694, 696 (Ind. 2014). Davis filed his motion for sentence modification pursuant

      to Indiana Code Section 35-38-1-17, which applies to defendants who

      committed their offenses or were sentenced before July 1, 2014. However,

      except for subsections (k) and (m), Section 35-38-1-17 does not apply to violent

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2686 | June 19, 2020   Page 4 of 7
criminals. Ind. Code § 35-38-1-17(c). Davis was convicted of voluntary

manslaughter and is a violent criminal as defined by the statute. Ind. Code §

35-38-1-17(d)(3). Subsection (m) does not apply to Davis because it pertains

only to persons who commit an offense after June 30, 2014, and before May 15,

2015. Subsection (k) provides as follows:


         This subsection applies to a convicted person who is a violent
         criminal. A convicted person who is a violent criminal may, not
         later than three hundred sixty-five (365) days from the date of
         sentencing, file one (1) petition for sentence modification under
         this section without the consent of the prosecuting attorney.
         After the elapse of the three hundred sixty-five (365) day period,
         a violent criminal may not file a petition for sentence
         modification without the consent of the prosecuting attorney.


Here, Davis filed his motion for sentence modification more than 365 days after

the date of sentencing, and therefore pursuant to subsection (k) he was required

to obtain the consent of the prosecuting attorney for sentence modification and

did not. 1 As such, the trial court had no authority to modify Davis’s sentence.

See Johnson v. State, 36 N.E.3d 1130, 1134-35 (Ind. Ct. App. 2015) (“Our courts

have consistently held that once the limited amount of time granted by the




1
  We reject Davis’s argument that certain statements in the State’s objection were erroneous and prejudicial.
Our review of the record on appeal shows that the challenged statements accurately reflect Davis’s charges
and convictions, that his criminal history was a sentencing aggravator, and that he was seven and a half years
into his thirty-year sentence in the DOC. Furthermore, the State was not required to explain its reasons for
withholding consent, and Davis did not file a response to the State’s objection.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2686 | June 19, 2020                      Page 5 of 7
       statute has passed, the trial court is without authority to reduce or suspend a

       sentence unless the prosecutor consents.”), trans. denied.


[9]    To the extent that Davis claims that Indiana Code Section 35-38-1-17 runs afoul

       of the Indiana Constitution’s prohibition against vindictive justice, we have

       previously rejected that argument. See Manley v. State, 868 N.E.2d 1175, 1178

       (Ind. Ct. App. 2007) (affirming denial of motion for sentence modification and

       concluding that “[t]here was nothing vindictive about requiring Manley to serve

       his entire sentence, notwithstanding that he has diligently pursued education

       opportunities while incarcerated.”), trans. denied.


[10]   Finally, to the extent that Davis relies on Indiana Code Chapter 35-38-2.6, we

       note that Indiana Code Section 35-38-2.6-3 provides, “The court may, at the

       time of sentencing, suspend the sentence and order a person to be placed in a

       community corrections program as an alternative to commitment to the

       department of correction.” Section 35-38-2.6-3 applies “at the time of

       sentencing[,]” and therefore is inapplicable to sentence modification. See Keys v.

       State, 746 N.E.2d 405, 407 (Ind. Ct. App. 2001) (concluding that Section 35-38-

       2.6-3 does not allow trial court to modify placement after sentencing). We

       conclude that the trial court did not abuse its discretion in denying Davis’s

       motion for sentence modification.


[11]   Based on the foregoing, we affirm the denial of Davis’s motion for sentence

       modification.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2686 | June 19, 2020   Page 6 of 7
[12]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2686 | June 19, 2020   Page 7 of 7
