MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jun 18 2018, 8:52 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Ronald Weaver                                            Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronald Weaver,                                           June 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A04-1707-CR-1580
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-0906-FA-32



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1707-CR-1580 | June 18, 2018            Page 1 of 8
                                Case Summary and Issue
[1]   In 2012, Ronald Weaver pleaded guilty to dealing in methamphetamine, a

      Class A felony, and was sentenced to thirty years in the Indiana Department of

      Correction (“DOC”) to be followed by ten years of probation. In 2017, Weaver

      filed a motion to reduce or suspend his sentence or to be placed in community

      corrections or the Purposeful Incarceration Program. Weaver now appeals the

      denial of his motion, raising two issues which we consolidate and restate as

      whether the trial court erred in denying his motion to modify his sentence.

      Concluding the trial court did not err in denying Weaver’s motion, we affirm.



                            Facts and Procedural History
[2]   Weaver was charged in June 2009 with dealing in methamphetamine, a Class A

      felony. In April 2012, Weaver pleaded guilty as charged pursuant to an

      agreement with the State that the executed portion of his sentence would not

      exceed thirty years and that the parties were free to argue placement. In June

      2012, the trial court sentenced Weaver to forty years with ten years suspended

      to probation.


[3]   On May 19, 2017, Weaver, acting pro se, filed a Motion for Modification of

      Sentence and/or Allowing Participation in the Purposeful Incarceration

      Project. Weaver alleged therein that while imprisoned, he had treated his

      addiction, honed his life skills, modeled lawful behavior, and developed a

      structured plan for life after his release. He also alleged that under the 2014


      Court of Appeals of Indiana | Memorandum Decision 20A04-1707-CR-1580 | June 18, 2018   Page 2 of 8
      criminal code revision, he would have been charged with a lesser felony which

      would have carried a lesser sentencing range. He asked to have his sentence

      modified to community corrections placement or to be placed in a therapeutic

      community through the Purposeful Incarceration Program. The trial court

      ordered the Miami Correctional Facility where Weaver was incarcerated to

      prepare and file a progress report. After receiving the report and without

      holding a hearing, the trial court denied Weaver’s motion on June 20, 2017,1

      finding:


               [Weaver] would not be a viable candidate for the Purposeful
               Incarceration Program due to the fact that his outdate is 2025.
               Court further finds that due to the fact that [Weaver] has suffered
               a conduct violation while incarcerated, he is not an appropriate
               candidate for modification at this time.


      [Appellant’s] Amended Appendix, Volume 3 at 32. Weaver now appeals.



                                   Discussion and Decision
                                        Sentence Modification
[4]   Indiana Code section 35-38-1-17 applies to a person who committed an offense

      and was sentenced prior to July 1, 2014. Ind. Code § 35-38-1-17(a). Because




      1
       Twice, the State misstated this date as June 20, 2016. See Brief of Appellee at 4, 6. Attention to detail is an
      important aspect of drafting briefs and aids in our review of cases.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1707-CR-1580 | June 18, 2018                 Page 3 of 8
      Weaver committed his crime in June 2009 and was sentenced in June 2012,

      section 35-38-1-17 applies to him.2 Section 35-38-1-17 further provides,


               (e) At any time after:
               (1) a convicted person begins serving the person’s sentence; and
               (2) 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 and impose a
               sentence that the court was authorized to impose at the time of
               sentencing. The court must incorporate its reasons in the record.
               ***
               (h) The court may deny a request to suspend or reduce a sentence
               under this section without making written findings and
               conclusions.


      Ind. Code § 35-38-1-17(e), (h). We review a trial court’s decision on a motion

      to modify a sentence for an 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 before it or it misinterprets the law. Id.


[5]   To the extent Weaver argues that provisions of the revised criminal code should

      play any part in the consideration of whether his sentence should be modified,

      he is mistaken. See Ind. Code § 1-1-5.5-21 (stating the 2014 criminal code

      revision does not apply to any penalties incurred, crimes committed, or

      proceedings begun before its effective date and the doctrine of amelioration



      2
       “If after sentencing, a defendant requests to modify his placement and be allowed to serve his sentence in a
      community corrections program, this is a request for a modification of sentenced under Ind. Code § 35-38-1-
      17.” Keys v. State, 746 N.E.2d 405, 407 (Ind. Ct. App. 2001).

      Court of Appeals of Indiana | Memorandum Decision 20A04-1707-CR-1580 | June 18, 2018               Page 4 of 8
      specifically does not apply). “The time of a crime is selected as an act of free

      will by the offender, and, thus, it is the criminal, not the State, that chooses

      which statute applies to his or her offense.” Whittaker v. State, 33 N.E.3d 1063,

      1067 (Ind. Ct. App. 2015) (alterations omitted).3 Weaver committed his crime

      in 2009 and the provisions of the revised criminal code therefore have no effect

      on his proceeding.


[6]   With respect to Weaver’s request to modify his placement from DOC to

      community corrections, Weaver focuses on his “exemplary rehabilitative

      efforts” while incarcerated and asserts he is therefore “entitled” to the relief he

      seeks. Brief of Petitioner-Appellant at 12. We commend Weaver for using his

      time while incarcerated to better himself; however, sentence modification is

      within the discretion of the trial court and no petitioner is entitled to

      modification. See Marshall v. State, 563 N.E.2d 1341, 1343-44 (Ind. Ct. App.

      1990) (“[T]he mere fact that the process of rehabilitation, the purpose of

      incarceration, may have started, does not compel a reduction or other

      modification in . . . sentence.”), trans. denied. Here, as Weaver himself

      acknowledges, the trial court’s reason for denying his motion to modify—that

      he had a conduct report on his record—is true. See Br. of Petitioner-Appellant

      at 11. Although Weaver has but one conduct report for a DOC rules violation




      3
        In his reply brief, Weaver invokes the Fifth, Thirteenth, and Fourteenth Amendments to the United States
      Constitution, as well as Indiana Appellate Rule 7(B). Because Weaver made no argument under these laws
      in his opening brief, any argument pertaining to those laws is waived. Perryman v. State, 80 N.E.3d 234, 246
      n.3 (Ind. Ct. App. 2017).

      Court of Appeals of Indiana | Memorandum Decision 20A04-1707-CR-1580 | June 18, 2018              Page 5 of 8
      since his sentencing five years ago, he nevertheless committed a rules violation

      and the trial court did not abuse its discretion in citing that history as a basis for

      denying Weaver’s request to modify his placement.


[7]   With respect to Weaver’s request to participate in the Purposeful Incarceration

      Program, the trial court determined he was not a viable candidate for that

      program at this time. Purposeful Incarceration is a “sentencing order that

      judges can use in situations where the judge is committed to modifying a

      sentence upon the offender’s successful completion of [a DOC] Addiction

      Recovery Treatment Program.” Purposeful Incarceration FAQ,

      https://www.in.gov/idoc/files/PI%20FAQ%20Updated%2012.15.pdf (last

      visited June 7, 2018). When sentencing a chemically addicted offender, if a

      court documents that it will consider a sentence modification should the

      offender successfully complete a DOC therapeutic community, the program

      then assesses the offender and only admits persons who meet the substance

      abuse admission criteria. Id.4


[8]   It is clear from the trial court’s order that it is not presently willing to consider a

      sentence modification given the length of time Weaver still has to serve.

      Moreover, the court can only make a recommendation that an offender be

      admitted to the program. “If it is determined during the offender’s assessment

      . . . that the offender does not need substance abuse treatment or is



      4
       Therapeutic communities “provide intensive substance abuse treatment . . . [and] hold the offenders highly
      accountable.” Purposeful Incarceration, https://www.in.gov/idoc/2798.htm (last visited June 7, 2018).

      Court of Appeals of Indiana | Memorandum Decision 20A04-1707-CR-1580 | June 18, 2018             Page 6 of 8
       inappropriate for treatment, the offender will be denied admission.” Purposeful

       Incarceration FAQ,

       https://www.in.gov/idoc/files/PI%20FAQ%20Updated%2012.15.pdf (last

       visited June 7, 2018). Weaver has been imprisoned for over five years at this

       point, and he alleges that the education he has received while incarcerated “led

       to acceptance of responsibility for his actions, and provided successful treatment

       for his addiction as it has altered his way of thinking . . . .” [Appellant’s]

       Amended App., Volume 3 at 4 (emphasis added). Based on this assertion,

       Weaver does not make a compelling case that he would meet the criteria to

       participate in the program even if the trial court was willing to recommend it.


[9]    Any leniency in sentencing is a matter of grace, not a matter of right. See Knecht

       v. State, 85 N.E.3d 829, 839 (Ind. Ct. App. 2017) (discussing probation); Johnson

       v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016) (discussing community

       corrections). The trial court was not required to recommend Weaver to the

       Purposeful Incarceration Program and did not abuse its discretion in declining

       to do so.



                                               Conclusion
[10]   The trial court did not abuse its discretion in denying Weaver’s motion to

       modify his sentence or to recommend placement in the Purposeful

       Incarceration Program. Accordingly, the judgment of the trial court is affirmed.


[11]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 20A04-1707-CR-1580 | June 18, 2018   Page 7 of 8
Najam, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 20A04-1707-CR-1580 | June 18, 2018   Page 8 of 8
