MEMORANDUM DECISION
                                                                         Nov 25 2015, 8:04 am

Pursuant to Ind. Appellate Rule 65(D),
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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Mary K. Zahn                                            Gregory F. Zoeller
Tyler D. Helmond                                        Attorney General of Indiana
Voyles Zahn & Paul
Indianapolis, Indiana                                   Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jon Omstead,                                            November 25, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1412-CR-578
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Grant Hawkins,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G05-9712-CF-189152



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015     Page 1 of 11
[1]   Jon Omstead appeals from the denial of his petition for modification of

      sentence. Omstead raises one issue, which we revise and restate as whether the

      trial court erred in denying his petition. We affirm.


                                      Facts and Procedural History

[2]   On December 29, 1997, Omstead and Christopher Nahas entered the home of

      Evan Hunter, where Omstead shot Terry Scarborough in the head and Nahas

      shot Hunter in the head, and the men died from the gunshot wounds. In

      October 1998, Omstead pled guilty to two counts of murder pursuant to a plea

      agreement which provided that he would receive concurrent sentences and

      would not receive a sentence greater than fifty-five years. On March 12, 1999,

      the court sentenced Omstead to concurrent terms of fifty-five years for each of

      his murder convictions consistent with the plea agreement.


[3]   On October 7, 2014, Omstead filed a Petition for Modification of Sentence. In

      his petition, Omstead argued that Ind. Code § 35-38-1-17 (2014) is procedural

      and remedial in nature and therefore can and should be applied retroactively.

      Omstead argued that he had already served approximately sixteen actual years

      of his sentence and that he has shown he is deserving of a sentence

      modification. He requested that the court reduce or suspend his sentence by ten

      years or, alternatively, order the last ten years be served as an executed sentence

      in community corrections. He stated he was eighteen years old at the time of

      the incident, that he is a completely changed individual, and that serving the

      additional ten years would not serve to further his rehabilitation.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015   Page 2 of 11
[4]   On October 22, 2014, the State filed an objection to modification stating that,

      pursuant to the version of Ind. Code § 35-38-1-17 in effect when Omstead’s

      offense was committed, the court lacked the authority to modify his sentence

      without the consent of the prosecutor. The State argued that the 2014

      amendments to the statute do not apply retroactively and that the court lacked

      authority to grant a modification.


[5]   On December 3, 2014, the court held a hearing on Omstead’s petition for

      modification of sentence. The court found that Omstead was not eligible for

      relief and denied his petition.


                                                  Discussion

[6]   The issue is whether the trial court erred in denying Omstead’s petition for

      modification of sentence. We review a trial court’s denial of a petition to

      modify a sentence only for abuse of discretion. Swallows v. State, 31 N.E.3d 544

      (Ind. Ct. App. 2015) (citing Hobbs v. State, 26 N.E.3d 983, 985 (Ind. Ct. App.

      2015) (citing Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010))), trans. denied.

      If the ruling rests on a question of law, however, we review the matter de novo.

      Id. (citing State v. Holloway, 980 N.E.2d 331, 334 (Ind. Ct. App. 2012)). Matters

      of statutory interpretation present pure questions of law. Id. (citing State v.

      Brunner, 947 N.E.2d 411, 416 (Ind. 2011) (citing Gardiner, 928 N.E.2d at 196),

      reh’g denied).


[7]   The first step in interpreting a statute is to determine whether the legislature has

      spoken clearly and unambiguously on the point in question. Id. (citing City of

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015   Page 3 of 11
      Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007)). When a statute is clear and

      unambiguous, we need not apply any rules of construction other than to require

      that words and phrases be taken in their plain, ordinary, and usual sense. Id.

      However, when a statute is susceptible to more than one interpretation, it is

      deemed ambiguous and thus open to judicial construction. Id. When faced

      with an ambiguous statute, other well-established rules of statutory construction

      are applicable. Id. One such rule is that our primary goal of statutory

      construction is to determine, give effect to, and implement the intent of the

      legislature. Id. To effectuate legislative intent, we read the sections of an act

      together in order that no part is rendered meaningless if it can be harmonized

      with the remainder of the statute, examine the statute as a whole, and do not

      presume that the legislature intended language used in a statute to be applied

      illogically or to bring about an unjust or absurd result. Id.


[8]   Ind. Code § 35-38-1-17 addresses the reduction or suspension of a sentence.

      Prior to July 1, 2014, the statute provided in part:

              If more than three hundred sixty-five (365) days have elapsed
              since the convicted person 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-l-17(b) (2012) (emphasis added); see also Ind. Code § 35-38-l-

      17(b) (1991) (substantively similar provision permitting the court to reduce or

      suspend the sentence “subject to the approval of the prosecuting attorney”).



      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015   Page 4 of 11
[9]    Effective July 1, 2014, the criminal code was subject to a comprehensive

       revision pursuant to Pub. L. No. 158-2013 and Pub. L. No. 168-2014. The

       sentence modification statute as amended in 2014 provided in relevant part:


               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-l-17(c) (eff. Jul. 1, 2014).


[10]   The legislature also enacted a savings clause which provides:

               (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 or 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 Viceroy 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 (eff. July 1, 2014).


[11]   Omstead maintains that he is entitled to the benefit of the sentence modification

       statute as amended in 2014. He argues that the triggering event in determining

       whether the statute applies should be the date of filing the petition for

       modification and not the date of the offense or the date of sentencing. Omstead

       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015   Page 5 of 11
       further contends that the amended statute is procedural and remedial and thus

       applies retroactively to him. He posits that the savings clause does not foreclose

       application of the 2014 statute to him because a request for a sentence

       modification is not a penalty incurred or a crime committed and the proceeding

       here began when he sought modification on October 7, 2014. He also argues

       that the goals of the criminal code revision, including favoring simplicity,

       promoting rehabilitation of offenders in a community setting, avoiding use of

       scarce prison space for nonviolent offenders, and giving trial courts maximum

       discretion, support applying the 2014 statute.


[12]   The State’s position is that the trial court properly denied Omstead’s petition as

       it did not have the authority to modify his sentence under the modification

       statute. The State argues that the language of the savings clause is all-

       encompassing, that Omstead’s sentence is a penalty incurred prior to July 1,

       2014, and that by the plain language of the statute the penalty may not be

       affected in any way by any provision of the revised code. The State also

       contends that, regardless, the issue is moot because effective May 5, 2015, the

       legislature amended Ind. Code § 35-38-1-17 so that defendants who were

       sentenced prior to July 1, 2014, and who are not violent criminals may request

       a sentence modification.


[13]   Generally, “[s]tatutes are to be given prospective effect only, unless the

       legislature unequivocally and unambiguously intended retrospective effect as

       well.” Johnson v. State, 36 N.E.3d 1130, 1134 (Ind. Ct. App. 2015) (citing State

       v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005)), trans. denied. An exception to this

       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015   Page 6 of 11
       general rule exists for remedial or procedural statutes. Id. (citing Martin v. State,

       774 N.E.2d 43, 44 (Ind. 2002)). Although statutes and rules that are procedural

       or remedial may be applied retroactively, they are not required to be. Id. (citing

       Pelley, 828 N.E.2d at 919-920). Even for procedural or remedial statutes,

       “retroactive application is the exception, and such laws are normally to be

       applied prospectively absent strong and compelling reasons.” Id. (citing Hurst v.

       State, 890 N.E.2d 88, 94-96 (Ind. Ct. App. 2008) (quotation omitted), trans.

       denied).


[14]   In Hobbs v. State, Hobbs was convicted in 2006 for offenses he committed in

       2005, and the trial court sentenced him to an aggregate sentence of twenty-three

       years. 26 N.E.3d at 984-985. On July 23, 2014, Hobbs filed a petition for

       modification of his sentence pursuant to Ind. Code § 35-38-1-17(c) (2014), and

       we denied his petition and held that the 2014 version of the statute did not

       apply to him. Id. at 985-986. We explained:


               [Ind. Code § 35-38-1-17(c)] became effective July 1, 2014, as part
               of the General Assembly’s overhaul of our criminal code
               pursuant to P.L. 158-2013 and P.L. 168-2014. It was not in effect
               at the time Hobbs committed his offense against L.M.; rather, the
               law in effect at that time stated in relevant part: “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.” I.C. § 35-38-1-17(b) (2005) (emphasis added); see also
               Harris v. State, 897 N.E.2d 927, 928-929 (Ind. 2008) (“The
               sentencing statute in effect at the time a crime is committed
               governs the sentence for that crime.”).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015   Page 7 of 11
         Despite Hobbs’ assertions to the contrary on appeal, there is no
         question that the current version of Indiana Code Section 35-38-
         1-17 does not apply to him. I.C. § 1-1-5.5-21 (“The general
         assembly does not intend the doctrine of amelioration . . . to
         apply to any SECTION of P.L. 158-2013 or P.L. 168-2014”); see
         also Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (“It
         is abundantly clear . . . that the General Assembly intended the
         new criminal code to have no effect on criminal proceedings for
         offenses committed prior to the enactment of the new code.”),
         trans. denied. Hobbs’ arguments to the contrary are without
         merit.

Id. In subsequent cases, we also cited the savings clause and reached the

conclusion that the 2014 amendment eliminating the requirement of approval

of the prosecutor did not apply retroactively. See Carr v. State, 33 N.E.3d 358,

358-359 (Ind. Ct. App. 2015) (citing the savings clause and Hobbs and

concluding the version of Ind. Code § 35-38-1-17 which became effective July 1,

2014, did not apply where Carr’s crime was committed in 1999), trans. denied;

Swallows, 31 N.E.3d at 545-547 (noting the plain meaning of the savings clause

and the reasoning in Hobbs and concluding that the version of Ind. Code § 35-

38-1-17 which became effective on July 1, 2014, did not apply to Swallows’s

petition to modify a sentence that he began serving in 1989).1




1
  But see Moore v. State, 30 N.E.3d 1241, 1245-1250 (Ind. Ct. App. 2015) (concluding in part that the 2014
amendment constituted a procedural change, that the savings clause did not prevent a person convicted prior
to July 1, 2014 from bringing his petition under the statute as revised by the 2014 amendment, and that the
trial court had the authority to entertain Moore’s petition without the consent of the prosecutor), trans. not
sought.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015           Page 8 of 11
[15]   Additionally, in Johnson v. State, Dennis Johnson and Raymond Johnson,

       whose cases were consolidated on appeal, were sentenced in 1997. 36 N.E.3d

       at 1131-1132. The Johnsons filed requests for evaluation on December 19,

       2013, which the trial court treated as petitions for sentence modifications, and

       the court held a hearing in August 2014 at which the Johnsons noted that the

       modification statute had changed on July 1, 2014. Id. at 1132. The trial court

       denied the Johnsons’ request. Id. On appeal, the Johnsons argued that the

       2014 amendment to the modification statute was remedial and procedural and

       should be applied retroactively to their petitions despite the savings clause. Id.

       at 1133. As to whether the 2014 amendment was remedial, we observed that

       Indiana courts consistently held that once the limited amount of time granted

       by the statute passed, the trial court was without authority to reduce or suspend

       a sentence unless the prosecutor consented. We also noted that there is no

       indication that the requirement of prosecutorial consent was an error, and that

       the legislature enacted the prosecutorial consent provision of the modification

       statute in 1991 and did not eliminate it for over twenty years, during which time

       our legislature amended the statute in other ways. We thus concluded that the

       2014 amendment to Ind. Code § 35-38-1-17(b) was not remedial. Id. at 1134-

       1135. As to whether the 2014 amendment was procedural, we observed that, at

       the time the Johnsons were sentenced, the statute gave the trial court authority

       to reduce or suspend a sentence in its discretion within 365 days, after which

       the trial court lacked authority to alter a sentence unless the prosecutor

       consented, and that, “[b]y eliminating the requirement of prosecutorial consent

       in the 2014 version of the statute, the legislature gave the trial court additional
       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015   Page 9 of 11
       authority it did not previously have—the authority to unilaterally alter a

       defendant’s sentence after the expiration of 365 days.” Id. at 1135-1136. We

       concluded that the 2014 amendment to Ind. Code § 35-38-1-17(b) constituted a

       substantive and not a procedural change and affirmed the trial court’s denial of

       the petitions for sentence modification. Id. at 1136-1138.2


[16]   Based on Hobbs and Johnson, and given the language of the savings clause found

       at Ind. Code § 1-1-5.5-21 (2014), and that the 2014 amendment was not

       remedial or procedural, we conclude that the version of Ind. Code § 35-38-1-17

       which became effective July 1, 2014, does not apply to Omstead’s petition for

       modification of sentence. The trial court did not err in denying his petition.3


                                                       Conclusion

[17]   For the foregoing reasons, we affirm the trial court’s denial of Omstead’s

       petition for modification of sentence.




       2
        Following this court’s opinion, the Johnsons filed a petition to transfer. The Indiana Supreme Court held
       oral argument and issued an order denying the Johnsons’ petition to transfer on the same day, leaving this
       court’s opinion undisturbed.
       3
         We also note that, after the trial court denied Omstead’s petition, Ind. Code § 35-38-1-17 was amended
       again. The most recent amendment became effective on May 5, 2015, and is not applicable to this case.
       Nevertheless, we note that the 2015 version of the statute includes a provision that, notwithstanding the
       savings clause found at Ind. Code § 1-1-5.5-21, the provisions of Ind. Code § 35-38-1-17 are applicable to a
       person who committed an offense or was sentenced before July 1, 2014. Ind. Code § 35-38-l-17(a) (2015).
       However, the 2015 version also provides that, except as provided in subsections (k) and (m), Ind. Code § 35-
       38-l-17 does not apply to a “violent criminal,” and a violent criminal is defined to include a person convicted
       of murder. Ind. Code § 35-38-l-17(c), (d)(1) (2015). Ind. Code § 35-38-1-17(k) (eff. May 5, 2015) provides
       that, “[a]fter 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.” Thus, Omstead would
       not be entitled to file a petition for modification of his sentence under the 2015 version of the modification
       statute without prosecutorial consent.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015           Page 10 of 11
[18]   Affirmed.


       Riley, J., and Friedlander, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015   Page 11 of 11
