MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                               Oct 29 2015, 8:20 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Jeremy Tidmore                                           Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Tidmore,                                          October 29, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         27A02-1502-CR-77
        v.                                               Appeal from the Grant Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark E. Spitzer,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         27C01-0411-FC-155



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015   Page 1 of 10
                                          Case Summary
[1]   Jeremy Tidmore began serving a sixty-year sentence for felony murder and

      conspiracy to commit robbery with a deadly weapon causing serious bodily

      injury in 1992. In 2014, he filed a sentence-modification petition under an

      amendment to Indiana Code section 35-38-1-17 that allowed courts to consider

      petitions for sentence modifications without the previous requirement of

      prosecutorial approval. The trial court dismissed Tidmore’s petition, relying on

      prior decisions from this Court indicating that the 2014 amendment to the

      statute did not apply retroactively to crimes occurring before the amendment in

      2014. In 2015, while this appeal was pending, the Indiana Legislature again

      amended Section 35-38-1-17, making the 2015 amendments retroactive,

      allowing non-violent criminals to petition for sentence modification without

      prosecutorial approval, but requiring violent criminals to obtain prosecutorial

      approval for sentence-modification petitions.

[2]   Tidmore argues that the 2014 amendment should apply to him or, in the

      alternative, that the 2015 amendments addressing petitions by violent criminals

      violate the Equal Protection Clause of the Fourteenth Amendment and the

      Equal Privileges and Immunities Clause of the Indiana Constitution because of

      its disparate treatment of violent offenders. Finally, Tidmore argues that

      inclusion of felony murder on the list of violent crimes in the 2015 amendment

      constitutes an ex post facto law. We find no error by the trial court and no

      constitutional violations, and we affirm the trial court’s decision.



      Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015   Page 2 of 10
                            Facts and Procedural History
[3]   In 1992, Tidmore was convicted of felony murder and Class A felony

      conspiracy to commit robbery with a deadly weapon causing serious bodily

      injury. The trial court sentenced Tidmore to sixty years in the Indiana

      Department of Correction for felony murder, and fifty years for conspiracy,

      both sentences to be served concurrently. His conviction and sentence were

      affirmed on direct appeal. Tidmore v. State, 637 N.E.2d 1290 (Ind. 1994), reh’g

      denied. Tidmore sought post-conviction relief in 2004, and the trial court

      granted partial relief by reducing the conspiracy charge to a Class C felony and

      revising his sentence from fifty years to eight years. This Court affirmed that

      decision. Tidmore v. State, 870 N.E.2d 32 (Ind. Ct. App. 2007), trans. denied.


[4]   Tidmore filed a petition to modify his sentence in October 2014. The trial court

      denied his petition in December 2014, and denied his motion to correct errors

      in January 2015. Tidmore, proceeding pro se, now appeals.



                                 Discussion and Decision

                       I. Indiana Code Section 35-38-1-17
[5]   Tidmore argues first that the trial court erred by denying his petition for

      sentence modification. We review a trial court’s decision to modify a sentence

      only for abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).




      Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015   Page 3 of 10
[6]   Tidmore contends that the trial court did have the authority to hear his petition,

      without prosecutorial consent, under the 2014 version of Indiana Code section

      35-38-1-17(c) that provides:

                 “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 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.”

      Ind. Code § 35-38-1-17(c) (West Supp. 2014).


[7]   Tidmore correctly notes that the 2014 version of the statute does not require

      prosecutorial approval for a sentence modification petition to proceed. This

      Court has previously held that the 2014 version of Indiana Code section 35-38-

      1-17 does not apply retroactively because of the savings clause, which also

      became effective July 1, 2014.1 See, e.g., Carr v. State, 33 N.E.3d 358, 359 (Ind.

      Ct. App. 2015), trans. denied; Swallows v. State, 31 N.E.3d 544, 547 (Ind. Ct.

      App. 2015), trans. denied; Hobbs v. State, 26 N.E.3d 983, 985-86 (Ind. Ct. App.




      1
          (a) A SECTION of P.L.158-2013 or P.L.168-2014 does not affect:

                 (1) penalties incurred;
                 (2) crimes committed; or
                 (3) proceedings begun;
      before the effective date of that SECTION of P.L.158-2013 or P.L.168-2014. Those penalties, crimes, and
      proceedings continue and shall be imposed and enforced under prior law as if that SECTION of P.L.158-
      2013 or P.L.168-2014 had not been enacted.
      (b) The general assembly does not intend the doctrine of amelioration (see Vicory v. State, 400 N.E.2d 1380
      (Ind. 1980)) to apply to any SECTION of P.L.158-2013 or P.L.168-2014.
      Ind. Code § 1-1-5.5-21.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015             Page 4 of 10
      2015). But see Moore v. State, 30 N.E.3d 1241, 1250 (Ind. Ct. App. 2015).2

      Tidmore contends that the savings clause does not apply to Section 35-38-1-17

      because the amended statute is a procedural remedy, and not a substantive

      remedy. We disagree. The 2014 version of Section 35-38-1-17 gave trial courts

      the ability to modify a sentence without prosecutorial approval—an authority

      the courts did not have prior to the amendment. The grant of new powers to a

      court constitutes a substantive change, not a mere procedural change. See

      Morris v. State, 936 N.E.2d 354, 357-58 (Ind. Ct. App. 2010), trans. denied.

      Therefore, the savings clause did apply to the 2014 amendment to Section 35-

      38-1-17.

[8]   However, the legislature subsequently amended the statute, while Tidmore’s

      appeal was pending, to allow for retroactive application, subject to certain

      conditions.3 Vasquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015). But

      Tidmore is not entitled to relief under the 2015 amendment either, because,

      “except as provided in subsections (k) and (m), this section does not apply to a

      violent criminal.” Ind. Code § 35-38-1-17(c). According to Subsection (d) of

      the statute, a person convicted of murder, which includes felony murder, is a




      2
       The Indiana Supreme Court has also granted an oral argument in Johnson v. State, 36 N.E.3d 1130 (Ind. Ct.
      App. 2015) (holding that 25-28-1-17 does not apply retroactively).
      3
        Tidmore argues that we should apply the text of the bill as it passed out of the Senate Committee, rather
      than the law as enacted. A bill does not become a law until it is either signed by the Governor, more than
      seven days have passed since presentment to the Governor and the Governor has neither signed nor vetoed it,
      or the legislature over-rides a veto. Ind. Const. art. 5, § 14. In no case does a bill become a law by passage
      from a committee.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015            Page 5 of 10
       “violent criminal.” Therefore, under the 2015 amendment, which provides for

       retroactivity in certain circumstances, Tidmore’s sentence may only be

       modified with the consent of the prosecuting attorney. Ind. Code § 35-38-1-

       17(k). In this case, the prosecutor filed an objection to Tidmore’s petition for

       sentence modification, and the trial court correctly dismissed it.



                                       II. Equal Protection
[9]    Next, Tidmore argues that requiring violent criminals to obtain prosecutorial

       consent prior to filing a petition for sentence modification, while permitting all

       other criminals to proceed without consent, violates the Equal Protection

       Clause of the Fourteenth Amendment to the United States Constitution, and

       the Equal Privileges and Immunities Clause of the Indiana Constitution.

       “[T]he analysis under the Equal Privileges Clause in the Indiana Constitution is

       independent from the analysis under the Fourteenth Amendment's Equal

       Protection Clause in the United States Constitution,” therefore, we will treat

       each one separately. Budd v. State, 935 N.E.2d 746, 753 (Ind. Ct. App. 2010).



                                   A. Federal Constitution
[10]   The Equal Protection Clause of the United States Constitution provides that no

       state shall “deny to any person within its jurisdiction the equal protection of the

       laws.” U.S. Const. amend. XIV, § 1. Equal protection analysis begins with the

       applicable level of scrutiny. Bennett v. State, 801 N.E.2d 170, 175 (Ind. Ct. App.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015   Page 6 of 10
       2003). Absent a burden upon the exercise of a fundamental right, or the

       creation of a suspect class, laws are subject to rational basis review. See id.


[11]   Tidmore does not allege creation of a suspect class, and a prisoner has no

       constitutional right to sentence modification. Therefore, the rational basis

       standard of review applies. See Cottingham v. State, 424 N.E.2d 105 (Ind. 1981).

       We “inquire only whether the challenged distinction rationally furthers some

       legitimate, articulated state purpose.” McGinnis v. Royster, 410 U.S. 263, 270

       (1973). A statute “will not be set aside if any state of facts reasonably may be

       conceived to justify it.” McGowan v. State of Md., 366 U.S. 420, 426 (1961).


[12]   The burden of proof is on Tidmore to show that no set of facts could justify

       distinguishing violent criminals from others for the purposes of sentence

       modification. See United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998). He

       has made no such showing. Moreover, the State did articulate reasons for not

       permitting sentence modification petitions for violent criminals without

       prosecutorial approval, including the nature of violent crimes and severity of

       harm to the victims. Appellee’s Br. p. 10. Accordingly, Tidmore has not

       carried his heavy burden to establish that the statute violates the Equal

       Protection Clause.



                                   B. Indiana Constitution
[13]   Tidmore also argues that Indiana Code section 35-38-1-17 violates Article 1,

       section 23 of the Indiana Constitution which provides that “[t]he General


       Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015   Page 7 of 10
       Assembly shall not grant to any citizen, or class of citizens, privileges or

       immunities, which, upon the same terms, shall not equally belong to all

       citizens.” Section 23 imposes two requirements upon statutes that grant

       unequal privileges or immunities to differing classes of persons: first, the

       disparate treatment accorded by the legislation must be reasonably related to

       inherent characteristics which distinguish the unequally treated classes; and

       second, the preferential treatment must be uniformly applicable and equally

       available to all persons similarly situated. Collins v. Day, 644 N.E.2d 72, 80

       (Ind. 1994). “Finally, in determining whether a statute complies with or

       violates Section 23, courts must exercise substantial deference to legislative

       discretion.” Id.


[14]   Beginning with the separate classification of violent criminals, for a legislative

       classification to become a judicial question, the lines drawn must “appear

       arbitrary or manifestly unreasonable.” Chaffin v. Nicosia, 310 N.E.2d 867, 869

       (Ind. 1974). “So long as the classification is based upon substantial distinctions

       with reference to the subject matter, we will not substitute our judgment for that

       of the legislature; nor will we inquire into the legislative motives prompting

       such classification[.]” Id. In this case, the legislature made a distinction

       between violent criminals and all other criminals in the context of deciding who

       may petition for sentence modification without prosecutorial consent. This

       does not “appear arbitrary or manifestly unreasonable.”

[15]   Tidmore does not suggest that some violent criminals as defined by the

       statute—those similarly situated to him—are treated differently. Therefore, we

       Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015   Page 8 of 10
       do not need to address the second prong of the analysis. He has failed to

       establish a violation of the Equal Privileges and Immunities Clause.



                                   III. Ex Post Facto Law
[16]   Finally, in his reply brief, Tidmore argues that classifying felony murder as a

       violent crime violates the ex post facto prohibitions of both the Indiana and

       federal Constitutions because the list of violent crimes in Indiana Code section

       35-38-1-17 did not exist when he was tried and convicted. Moreover, he points

       to other sections of the Code which also did not list violent crimes in 1992, and,

       consequently, did not list felony murder as a violent crime.

[17]   An ex post facto law applies retroactively to disadvantage an offender’s

       substantive rights. Weaver v. Graham, 450 U.S. 24, 29 (1981); Collins v. State,

       911 N.E.2d 700, 712 (Ind. Ct. App. 2009), trans. denied. To determine whether

       a particular statute is an ex post facto law, we examine whether the change

       increases the penalty by which a crime is punishable or alters the definition of

       criminal conduct. Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3, (1995);

       Collins, 911 N.E.2d at 712.


[18]   In this case, the effect of the 2015 amendment to section 35-38-1-17 is to leave

       Tidmore in the same position he was in when he was sentenced in 1992. The

       pertinent portion of the statute in effect at the time of the commission of

       Tidmore’s crime read as follows:




       Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015   Page 9 of 10
                If more than three hundred sixty-five (365) days have elapsed
                since the defendant began serving the sentence and after a
                hearing at which the convicted person is present, the court may
                reduce or suspend the sentence, subject to the approval of the
                prosecuting attorney. . . .


       Ind. Code § 35-38-1-17(b) (West Supp. 1992).


[19]   The 2015 amendment to Section 35-38-1-17 does not increase the punishment

       for, or change the elements of, any crime or deprive anyone of a defense or

       lesser punishment. The change in the statute merely permits non-violent

       criminals to petition for sentence modification without prosecutorial approval.

       As such, we conclude that it does not violate constitutional prohibitions against

       ex post facto laws. See Collins v. State, 911 N.E.2d 700, 712 (Ind. Ct. App.

       2009).

[20]   Finding that the trial court correctly applied Indiana Code section 35-38-1-17,

       and that the law does not violate Tidmore’s constitutional rights, we affirm.

[21]   Affirmed.

       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1502-CR-77 | October 29, 2015   Page 10 of 10
