APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Ivan Vazquez                                               Gregory F. Zoeller
Pendleton, Indiana                                         Attorney General of Indiana

                                                           Larry D. Allen
                                                           Deputy Attorney General       Jun 23 2015, 1:13 pm
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Ivan Vazquez,                                             June 23, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A02-1501-CR-47
        v.                                                Appeal from the Tippecanoe Superior
                                                          Court

State of Indiana,                                         The Honorable Thomas A. Busch,
                                                          Judge
Appellee-Plaintiff.
                                                          Case No. 79D02-0308-FA-24




Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015                      Page 1 of 6
                                           Case Summary
[1]   Ivan Vazquez began serving a forty-five-year sentence for felony drug

      convictions in 2005. Between 2010 and 2014, Vazquez filed three sentence-

      modification petitions as well as a motion to correct errors, all of which the trial

      court denied. Vazquez, proceeding pro se, now appeals. One of Vazquez’s

      claims is that the recently amended sentence-modification statute—Indiana

      Code section 35-38-1-17—applies to him. Although this Court previously held

      that Section 35-38-1-17 had no retroactive application, the legislature recently

      amended the statute to expressly provide for retroactivity; thus, the amended

      statute does apply to Vazquez. This fact aside, the amended statute does not

      entitle Vazquez to any relief. We find no error, and we therefore affirm.



                             Facts and Procedural History
[2]   In 2004 Vazquez pled guilty to Class A felony dealing in cocaine and Class A

      felony conspiracy to commit dealing in cocaine. The trial court sentenced

      Vazquez to fifty years in the Indiana Department of Correction, with five years

      suspended to probation. We affirmed Vazquez’s sentence on appeal. Vazquez v.

      State, 839 N.E.2d 1229 (Ind. Ct. App. 2005), trans. denied. Vazquez later sought

      post-conviction relief, which the post-conviction court denied, and we affirmed.

      Vazquez v. State, No. 79A02-1207-PC-545 (Ind. Ct. App. Sept. 19, 2013), trans.

      denied.




      Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015     Page 2 of 6
[3]   Vazquez filed his first sentence-modification petition in the trial court in

      November 2010. Appellant’s App. p. 4 (CCS). The trial court denied

      Vazquez’s petition. Id. Approximately four years later, in July 2014, Vazquez

      filed his second sentence-modification petition, which was also denied. Id. at 3.

      Just three months later, in October 2014, Vazquez filed a third petition to

      modify his sentence. Id. The trial court dismissed this petition as untimely,

      noting that Vazquez could refile on or after July 11, 2015. Id. at 18. Finally,

      Vazquez filed a motion to correct errors in November 2014, which the trial

      court denied. Id. at 2.


[4]   Vazquez, proceeding pro se, now appeals.



                                  Discussion and Decision
[5]   Vazquez makes a number of arguments on appeal, which we restate as: 1) the

      trial court was biased against him; 2) the trial court lacked jurisdiction to rule

      on his sentence-modification petitions and motion to correct errors; and 3) the

      recently amended sentencing-modification statute should apply to him.


[6]   Vazquez’s arguments, which amount to a single paragraph of his Appellant’s

      Brief, are difficult to follow and largely unsupported by authority. See

      Appellant’s Br. p. 5. When Vazquez cites authority, he does so without

      explaining how it applies to his case, and he fails to cite any portion of the

      record that might be relevant to his claims. See Ind. Appellate Rule 46(A)(8)(a)

      (the argument section of an appellant’s brief “must contain the contentions of


      Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015      Page 3 of 6
      the appellant on the issues presented, supported by cogent reasoning. Each

      contention must be supported by citations to the authorities, statutes, and the

      Appendix or parts of the Record on Appeal relied on . . . .”). However, because

      we prefer to decide cases on the merits whenever possible, we will nonetheless

      address Vazquez’s claims.


[7]   Vazquez first asserts that the trial court—which heard his sentence-modification

      petitions and motion to correct errors—was biased against him. A trial before

      an impartial judge is an essential element of due process. Stellwag v. State, 854

      N.E.2d 64, 65 (Ind. Ct. App. 2006). The law presumes that a judge is unbiased

      and unprejudiced. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002). However,

      this presumption may be rebutted if the defendant can establish from the judge’s

      conduct an actual bias or prejudice that places the defendant in jeopardy. Id.

      Vazquez falls far short of rebutting this presumption; in fact, he provides

      absolutely no evidence to support his bias claim. As for his suggestion that the

      court was without jurisdiction to rule on his sentence-modification petitions and

      motion to correct errors, he appears to base this claim on the fact that there had

      previously been “a change of venue from [the] biased and believed-to-be-unfair

      judge . . . .” Appellant’s Br. p. 5. Yet the record reflects no change of venue,

      nor any other procedural mechanism that would deprive the trial court of

      jurisdiction as Vazquez claims.




      Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015    Page 4 of 6
[8]   Finally, Vazquez suggests that the recently amended sentencing-modification

      statute applies to him. 1 Vazquez invokes Indiana Code section 35-38-1-17,

      which was amended in July 2014 and May 2015. This Court previously held

      that the amended statute had no retroactive application. See Swallows v. State, ---

      N.E.3d --- (Ind. Ct. App. 2015); Hobbs v. State, 26 N.E.3d 983 (Ind. Ct. App.

      2015). But the legislature has since amended the statute to expressly provide for

      retroactivity. Effective May 5, 2015, the amended statute now “applies to a

      person who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.”

      See Ind. Code § 35-38-1-17(a); P.L.164 – 2015.


[9]   In light of the legislature’s clear intent that the statute be applied retroactively,

      we agree with the State that the amended statute applies to Vazquez, whose

      appeal was pending when the retroactivity amendment went into effect. See

      Appellee’s Br. p. 7-8. But the amended statute does not entitle Vazquez to any

      relief. The trial court denied Vazquez’s sentence-modification petition because

      it was untimely—it was filed just three months after his last petition; as a result,

      the trial court dismissed it and noted that Vazquez could refile on or after July

      11, 2015. The amended statute mandates this result. See Ind. Code § 35-38-1-

      17(j)(1) (“A convicted person who is not a violent criminal may file a petition

      for sentence modification under this section . . . not more than one (1) time in

      any three hundred sixty-five (365) day period . . . .”). Moreover, under the




      1
       Specifically, Vazquez discusses the portion of the amended statute that eliminates the prosecutor’s ability to
      veto sentence-modification petitions. But as explained below, the amended statute offers Vazquez no relief.

      Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015                              Page 5 of 6
       amended statute, Vazquez was entitled to file a modification petition “a

       maximum of two (2) times during any consecutive period of incarceration . . .

       .” I.C. § 35-38-1-17(j)(2). Because Vazquez’s petition was untimely and

       exceeded the authorized number of filings, the trial court properly dismissed it.


[10]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015     Page 6 of 6
