MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                              Dec 18 2019, 10:44 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Trotter,                                     December 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-245
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Dennis Carroll,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause Nos.
                                                         48C06-8503-FB-951
                                                         48C06-8503-CF-950



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019               Page 1 of 15
                                          Case Summary
[1]   Christopher Trotter (“Trotter”) obtained post-conviction relief and was

      resentenced on seven counts arising from a prison riot. He now appeals.


[2]   We affirm.



                                                   Issues
[3]   Trotter raises the following issues:


              I.      Whether he is entitled to a statutory sentencing cap that
                      was not in effect at the time he was originally sentenced.


              II.     Whether the court abused its sentencing discretion.


              III.    Whether the court imposed an inappropriate sentence.


                            Facts and Procedural History
[4]   The Indiana Supreme Court recited the following facts on direct appeal:


              On February 1, 1985, [Trotter] was an inmate at the Indiana
              Reformatory in Pendleton, Indiana. At that time, [Trotter] was
              serving the last months of a four (4) year sentence for theft.


              On that day, there were disturbances in the maximum restraining
              unit involving officers. Afterward, a shakedown was ordered to
              discover weapons or other contraband material held by the
              inmates. The inmates showed vocal resentment and plugged
              their toilets causing them to flood. The officers then proceeded
              to empty the cells. The procedure followed was to require the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 2 of 15
        inmate to back up to the bars to be handcuffed before the cell
        door was opened. Four inmates refused to comply with this
        order. Each was maced in an attempt to force them to comply.
        Three of the four complied and were removed from their cells.
        However, one inmate, Lincoln Love, even after being maced
        twice, refused to comply. It therefore became necessary for the
        officers to open his cell and forcefully restrain him in order to
        remove him. Love then was transported to the Captain’s office.


        [Trotter] and John Cole, who was also an inmate, armed
        themselves with knives and attempted to force entry into the
        Captain’s office. However, they were unsuccessful. [Trotter]
        and Cole then went to another part of the building where they
        were confronted by Officers Delph and Richardson. They
        stabbed each of these officers. Officer Widner heard the
        disturbance and opened the door to investigate and was stabbed
        by [Trotter] and Cole. Captain Sands sprayed them with mace;
        they fled, however, to the infirmary where they stabbed Officer
        Huston. Soon thereafter, other guards entered the infirmary and
        confronted [Trotter] and Cole. Another altercation occurred and
        Officers Sheets and Melling were stabbed.


        [Trotter] and Cole then fled into “J” cellblock where they took
        guards Millstead and Ingalls hostage and forced them to open the
        cell doors. The inmates forced Millstead, Ingalls, and Counselor
        Weist into cells. Eventually the hostages were released and the
        inmates surrendered.


Trotter v. State, 559 N.E.2d 585, 586-87 (Ind. 1990). Trotter was convicted of

several offenses and received an aggregate sentence of 142 years executed. Id.

at 586. The Indiana Supreme Court affirmed the convictions on direct appeal.

See id. at 591.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 3 of 15
[5]   Trotter sought post-conviction relief, contending he was deprived of effective

      assistance of counsel at sentencing. The post-conviction court granted relief,

      vacating Trotter’s sentence and ordering “resentencing after a complete and

      accurate [presentence investigation report] is completed.” App. Vol. III at 50.


[6]   A sentencing hearing was conducted in January 2019. The court identified

      aggravators and mitigators, then imposed an aggregate sentence of 122 years

      executed. Specifically, in Cause No. 48C06-8503-CF-950, the court imposed

      forty-five years for Attempted Murder, a felony, and six years for Class C felony

      Battery Resulting in Serious Bodily Injury. Those sentences were to run

      consecutively for a total of fifty-one years. In Cause No. 48C06-8503-FB-951,

      the court imposed seventeen years for each of four counts of Class B felony

      Criminal Confinement and three years for Class D felony Rioting. The court

      ordered those sentences to run consecutively for a total of seventy-one years,

      running consecutive to the fifty-one-year sentence imposed in the other cause.


[7]   Trotter now appeals.



                                Discussion and Decision
                                           Sentencing Cap
[8]   Trotter argues the court should have applied a statutory cap on consecutive

      sentences. See Ind. Code § 35-50-1-2 (limiting the aggregate length of

      consecutive sentences imposed for a single episode of criminal conduct).

      Trotter concedes the cap did not exist when he was first sentenced, but contends

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 4 of 15
       the amendment applies under the doctrine of amelioration, which is a form of

       the rule of lenity. See Robertson v. State, 871 N.E.2d 280, 284 (Ind. 2007).


[9]    We review questions of law de novo. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind.

       2016).


                When construing a statute our primary goal is to ascertain the
                legislature’s intent. To discern that intent, we look first to the
                statutory language itself and give effect to the plain and ordinary
                meaning of statutory terms. If a statute is unambiguous, that is,
                susceptible to but one meaning, we must give the statute its clear
                and plain meaning.


       Id. at 1193-94 (cleaned up).


[10]   First, we observe that Trotter failed to raise the doctrine of amelioration at

       sentencing. He has therefore waived this issue. See, e.g., Turner v. State, 870

       N.E.2d 1083, 1085 (Ind. Ct. App. 2007) (identifying waiver of a claim under the

       doctrine of amelioration). Waiver notwithstanding, the general rule is that a

       defendant “shall be sentenced under the statute in force at the time the offense

       was committed.” State v. Alcorn, 638 N.E.2d 1242, 1245 (Ind. 1994). Indeed,

       the time of the crime “is selected as an act of free will by the offender” and the

       penal consequences “are frozen as of that event.” Id. Nevertheless, there is a

       limited exception to this rule. Richards v. State, 681 N.E.2d 208, 213 (Ind.

       1997). That is, the doctrine of amelioration provides that “when the penalty for

       a crime is decreased by an ameliorative amendment enacted after the

       commission of the crime but prior to the defendant’s sentencing, the defendant

       may take advantage of the ameliorative provisions.” Rowold v. State, 629
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 5 of 15
       N.E.2d 1285, 1288 (Ind. Ct. App. 1994). This doctrine applies to resentencing;

       however, it does not apply if the court is “merely correcting or modifying an

       existing sentence rather than resentencing.” Id.; compare, e.g., Riffe v. State, 675

       N.E.2d 710, 713 (Ind. Ct. App. 1996) (finding the doctrine inapplicable where

       the court “merely corrected [an] existing sentence”), trans. denied, with Martin v.

       State, 714 N.E.2d 1140, 1143 (Ind. Ct. App. 1999) (applying the doctrine where

       the defendant “stood convicted of different crimes”—it “was not merely a

       correction of [the] existing sentences. It was a true resentencing.”).


[11]   Here, Trotter was resentenced. Thus, the doctrine is potentially available.

       Critically, however, we must not apply the more lenient statute if doing so is

       contrary to legislative intent. See Turner, 870 N.E.2d at 1086; Cox v. State, 38

       N.E.3d 702, 703-04 (Ind. Ct. App. 2015) (“The doctrine is appropriately applied

       only if the legislature intended that the statute as amended apply to all persons

       for whom such application would be possible and constitutional.”).


[12]   Trotter directs us to caselaw from the 1990s, wherein courts concluded that the

       consecutive-sentences cap was ameliorative. See, e.g., Payne v. State, 688 N.E.2d

       164, 165 (Ind. 1997). However, since then, our legislature has substantially

       revised our criminal code, including through Public Law 168-2014. See generally

       Rodriguez v. State, 129 N.E.3d 789, 795 (Ind. 2019) (referring to the 2014

       amendments as “a comprehensive bill that touched many aspects of the

       criminal code”). Indiana Code Section 1-1-5.5-21 directly addresses the

       doctrine of amelioration: “The general assembly does not intend the doctrine of

       amelioration . . . to apply to any SECTION of P.L. 158-2013 or HEA 1006-

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 6 of 15
       2014.” A footnote after “HEA 1006-2014,” specifies that it was “[c]odified as

       P.L. 168-2014.” Id. This footnoted public law—Public Law 168-2014—

       “CORRECTED AND AMENDED” Indiana Code Section 35-50-1-2. It

       modified the eligibility for the cap on consecutive sentences found in Indiana

       Code Section 35-50-1-2. See Pub. L. 168-2014, § 108 (removing references to

       felonies under the former “Class” system and updating to a “Level” system”).

       Importantly, Indiana Code Section 35-50-1-2—with its cap on consecutive

       sentences—appears in full within Public Law 168-2014. See id. Furthermore,

       Indiana Code Section 1-1-5.5-21 refers to the same public law and specifies that

       a “SECTION of . . . P.L. 168-2014 does not affect: (1) penalties incurred;

       crimes committed; or (3) proceedings begun; before the effective date of that

       SECTION.” Public Law 168-2014 was effective on July 1, 2014.


[13]   We must give Indiana Code Section 1-1-5.5-21 its plain meaning. This statute

       specifies that our legislature did not intend for the doctrine of amelioration to

       apply to “any SECTION” of Public Law 168-2014, and that a “SECTION” of

       this public law does not affect crimes committed before July 1, 2014. I.C. § 1-1-

       5.5-21. The pertinent sentencing cap appears in full within Section 108. Thus,

       the legislature did not intend for the doctrine of amelioration to apply. 1




       1
         Further, “statutes relating to the same general subject matter are in pari materia and should be construed
       together so as to produce a harmonious statutory scheme.” Sanders v. State, 466 N.E.2d 424, 428 (Ind. 1984).
       Indiana Code Section 35-50-1-2—which sets forth the current cap on consecutive sentences—does not
       mention the former “class” system of felonies, under which Trotter was convicted. Rather, this statute
       speaks only to Levels 1 through 6. See I.C. § 35-50-1-2(d). Thus, consistent with the legislative intent
       articulated in Indiana Code Section 1-1-5.5-21, the current statute does not contemplate a cap for convictions
       obtained under the prior scheme. See I.C. § 35-50-1-2. In arguing the sentencing cap applies, Trotter declines

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019                  Page 7 of 15
[14]   Although Trotter waived argument regarding the doctrine of amelioration, the

       doctrine is inapplicable because it is inconsistent with legislative intent.2


                                         Sentencing Discretion
[15]   Under the law when Trotter committed the offenses, a court was obligated to

       enter a sentencing statement that satisfied the following requirements:


                (1) it must identify all of the significant mitigating and
                aggravating circumstances, (2) it must state the specific reason
                why each circumstance is considered to be mitigating or
                aggravating, and (3) the court must evaluate and balance the
                mitigating circumstances against the aggravating circumstances
                in order to determine if the aggravating circumstances offset the
                mitigating circumstances.


       Wall v. State, 573 N.E.2d 890, 893 (Ind. 1991) (quoting Henderson v. State, 489

       N.E.2d 68, 71-72 (Ind. 1986)). Moreover, a defendant could challenge the

       weight assigned to mitigators and aggravators. See Covington v. State, 842

       N.E.2d 345, 348-49 (Ind. 2006) (reviewing this type of challenge). Upon such a

       challenge, an appellate court gives “great deference” to a court’s determination

       of the proper weight assignable to mitigating and aggravating circumstances




       to quote the current statute. He quotes from cases quoting an older version of the statute—a version that
       mentions classes of felonies. See Br. of Appellant at 18. Trotter does not cogently argue that an older version
       of the statute—as opposed to the version effective at resentencing—applied at his resentencing hearing. See
       Ind. Appellate Rule 46(A)(8)(a) (requiring cogent reasoning supporting argument on each issue presented).
       2
        Because of our resolution of this issue, we need not address the State’s argument that a remedy curing a
       violation of the right to counsel should not produce a windfall.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019                   Page 8 of 15
       and “will set aside the court’s weighing only upon the showing of a manifest

       abuse of discretion.” Losch v. State, 834 N.E.2d 1012, 1014 (Ind. 2005).


[16]   Further, at the time of the offenses, Indiana had “presumptive” sentences. See

       generally Smylie v. State, 823 N.E.2d 679, 683 (Ind. 2005). These presumptive

       sentences apply at resentencing, except the court must follow the “current state

       of constitutional law.” Kline v. State, 875 N.E.2d 435, 438 (Ind. Ct. App. 2007).

       In light of Blakely v. Washington, 543 U.S. 296 (2004)—a case interpreting the

       Sixth Amendment—a court may aggravate a sentence based on additional facts

       only if the additional facts are “(1) a prior conviction; (2) facts found by a jury

       beyond a reasonable doubt; (3) facts admitted by the defendant; or (4) facts

       found by the sentencing judge after the defendant has waived Apprendi rights3

       and consented to judicial factfinding.” Robertson, 871 N.E.2d at 286.


[17]   Here, the court found as follows:


                  Court finds aggravation: 1) Defendant has some criminal history.
                  (modest weight); 2) Multiple crimes and multiple victims.
                  (substantial weight); 3) Crimes happened while defendant was
                  incarcerated at the IDOC and to IDOC personnel. (substantial
                  weight); Court finds mitigation: 1) Defendant was in the military
                  service. (modest weight); 2) Defendant had a traumatic
                  childhood. (modest weight); 3) Defendant accepts responsibility
                  for his actions. (modest weight). Court finds aggravation
                  outweighs mitigation.




       3
           See Apprendi v. New Jersey, 530 U.S. 466 (2000).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 9 of 15
       App. Vol. III at 81, 83. The court imposed the following aggravated sentences:


           • Forty-five years for Attempted Murder—five years above the

               presumptive sentence. See I.C. § 35-50-2-3 (1985) (allowing a court to

               add up to twenty years for aggravating circumstances).

           • Seventeen years for each Class B felony—seven years above the

               presumptive sentence. See I.C. § 35-50-2-5 (1985) (allowing a court to

               add up to ten years for aggravating circumstances).

           • Six years for the Class C felony—one year above the presumptive

               sentence. See I.C. § 35-50-2-6 (1985) (allowing a court to add up to three

               years for aggravating circumstances).

           • Three years for the Class D felony—one year above the presumptive

               sentence. See I.C. § 35-50-2-7 (1985) (allowing a court to add up to two

               years for aggravating circumstances).


[18]   Trotter argues the court erred by “believing that it was prohibited from giving

       substantial weight to circumstances and accomplishments” following the

       original sentencing. Br. of Appellant at 24. He directs us to these remarks:


               [T]his is not a modification hearing, this is a re-sentencing. So
               it’s not appropriate for the Court to consider in any significant
               way . . . aggravators or mitigators that occurred after your
               original sentence. I think as I said you should receive some
               modest weight, that you’ve had no write-ups, . . . that you
               are . . . conduct free for a number of years. You’ve taken
               responsibility. . . . [Y]ou show remorse. Some of
               that . . . happened well into your sentence. In fact I noticed all
               those documents [related to positive changes] were dated ’17 and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 10 of 15
               ’18. They weren’t dated ten (10) or fifteen (15) or twenty (20)
               years ago. So you have made some important changes but they
               didn’t all happen quickly and immediately. In fact . . . this series
               of crimes [is] proof . . . that those didn’t happen quickly and
               immediately. So . . . I will give some modest
               consideration . . . to your acceptance of responsibility, your
               remorsefulness, and your change of behavior. . . . [B]ut only in a
               modest way for the reasons that I have just outlined.


       Tr. at 68.


[19]   A resentencing court may consider conduct—good or bad—between the

       original sentencing date and the time of sentencing. Ousley v. State, 807 N.E.2d

       758, 761 (Ind. Ct. App. 2004) (interpreting Post-Conviction Rule 1(10)(b) as

       implicitly allowing evidence of positive conduct after the original sentence).

       Trotter argues that the court misunderstood the law, thinking it was prohibited

       from giving substantial weight to his positive subsequent conduct. He argues

       that if the court understood the law, it would have given more weight to

       positive changes—not “minimal consideration.” Br. of Appellant at 25.


[20]   However, the above-quoted passage does not strike us as a misapprehension of

       law. Rather, the court was explaining to Trotter why it was not inclined to give

       substantial weight to changes that “didn’t all happen quickly and immediately.”

       Tr. at 68. The court contrasted the purpose of a resentencing hearing with the

       purpose of a modification hearing, the latter of which is designed to focus on

       post-sentencing matters. We discern no manifest abuse of discretion here.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 11 of 15
[21]   Trotter also argues that the court “failed to give substantial mitigating weight to

       his childhood and family dynamic of him protecting his brother and mother

       from his abusive father and the defense of others and the role it played in the

       circumstances of the case.” Br. of Appellee at 25-26. Trotter claims the post-

       conviction court “found this dynamic to have substantial mitigating weight.”

       Id. at 26. Yet, as the State points out, “the discretion to assign weight to each

       aggravator and mitigator lies with the resentencing court, not the post-

       conviction court.” Br. of Appellee at 29. Moreover, we agree with the State

       that “the resentencing court fully explained its reasoning for assigning modest

       weight to Trotter’s childhood and for disregarding the defense-of-others

       mitigator entirely.” Id. As to Trotter’s traumatic childhood, the court gave

       modest weight, observing that Trotter was an adult at the time of the offenses,

       had been in the military, and had already been out of his parents’ home for

       several years. Tr. at 68. As to a protective instinct arising from a traumatic

       childhood, the court rejected the proffered mitigator, stating: “You simply do

       not get to insert yourself into what’s happening with other inmates at an IDOC

       facility. . . . This alleged beating of another inmate and you were defending

       another, you were fearful. . . . [I]t’s self-reported, it’s self-serving.” Tr. at 66.


[22]   Trotter has not persuaded us of a manifest abuse of discretion in sentencing.


                                     Inappropriate Sentence
[23]   Pursuant to Article 7 of the Indiana Constitution, as implemented by Indiana

       Appellate Rule 7(B), an appellate court “may revise a sentence authorized by


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 12 of 15
       statute if, after due consideration of the trial court’s decision, the Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” Ind. Appellate Rule 7(B). The appropriateness of a

       sentence turns on “myriad . . . factors that come to light in a given case.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In reviewing a sentence,

       we are not assessing whether a different sentence would be more appropriate.

       See Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015). Rather, we are assessing

       whether the imposed sentence is inappropriate. See id. As “sentencing is

       principally a discretionary function,” Cardwell, 895 N.E.2d at 1222, we give

       considerable deference to the court’s decision, Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015). That deference “should prevail unless overcome by

       compelling evidence portraying in a positive light the nature of the offense (such

       as accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character).” Id. Ultimately, the principal role of review “is to attempt to leaven

       the outliers.” McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018) (per curiam).


[24]   Regarding the offenses, Trotter received aggravated sentences that were within

       the range permitted by statute. See I.C. §§ 35-50-2-3, -5, -6 & -7 (1985). The

       sentences amounted to an aggregate term of 122 years in prison. As to the

       nature of the offenses, Trotter acknowledges he was convicted of “serious

       crimes.” Br. of Appellant at 27. He makes no attempt to portray them in a

       positive light. Trotter instead argues that “the character of the offender is such

       that a reduction in terms is appropriate.” Id. Trotter focuses on his traumatic

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 13 of 15
       childhood, which involved protecting family members from his abusive father.

       Trotter also observes that he committed the offenses when he was relatively

       young—in his early twenties. He points out that he had prior military service.

       Moreover, Trotter notes that he has expressed remorse and “has engaged in

       many meaningful programs,” with many achievements while in prison. Id.


[25]   Trotter wisely avoids discussing the nature of the offenses, which were marked

       with brutality. For example, after stabbing Officer Sheets, Trotter ripped the

       knife out by “twist[ing] up and pull[ing] it out sideways.” Tr. Dir. Appeal Vol.

       VIII at 43. Moreover, while holding Counselor Weist hostage, Trotter

       threatened sexual assault and said he would enjoy cutting Counselor Weist

       open. Id. at 145. Although Trotter had a traumatic childhood—and claims his

       involvement in the riot stemmed from a protective instinct developed in his

       youth—Trotter was nevertheless an adult who willingly participated in a brutal,

       prolonged riot that left many traumatized. Trotter, now in his fifties, has made

       positive changes while in the penal system, and we are mindful of that progress.

       However, having reviewed the matter, we are not persuaded that the nature of

       the offenses and the character of the offender warrant disturbing the sentence

       imposed by the court. We conclude that the sentence is not inappropriate.



                                               Conclusion
[26]   Trotter waived his claim regarding the doctrine of amelioration, and he is

       otherwise not entitled to a statutory cap regarding consecutive sentences. The

       court did not abuse its sentencing discretion. The sentence is not inappropriate.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 14 of 15
[27]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-245 | December 18, 2019   Page 15 of 15
