      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                                  Jun 26 2015, 8:11 am
      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
      David Drummond                                            Gregory F. Zoeller
      Bunker Hill, Indiana                                      Attorney General of Indiana
                                                                George P. Sherman
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      David Drummond,                                          June 26, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               49A02-1408-CR-577
              v.
                                                               Appeal from the Marion Superior
      State of Indiana,                                        Court
                                                               The Honorable Stanley Kroh,
      Appellee-Plaintiff,                                      Magistrate
                                                               Cause No. 49G03-0108-CF-161376




      Robb, Judge.



                                Case Summary and Issues
[1]   David Drummond, pro se, appeals the trial court’s denial of his motion for

      modification of sentence. He raises several issues for our review, which we

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015          Page 1 of 5
      restate and consolidate into two: (1) whether the trial court erred by denying

      Drummond’s motion for evaluation, and (2) whether the trial court erred by

      denying his motion for modification of sentence. Concluding the trial court did

      not err in either respect, we affirm.



                            Facts and Procedural History
[2]   Drummond was convicted of child molesting, a Class A felony, and sentenced

      to fifty years imprisonment on April 24, 2002.


[3]   On July 17, 2014, Drummond filed a Motion for Order for Evaluation and a

      Motion for Modification of Sentence. On July 23, 2014, the trial court denied

      both motions without a hearing. This appeal followed.



                                 Discussion and Decision
                                      I. Standard of Review
[4]   The decision to deny a defendant’s motion for modification of sentence is

      committed to the discretion of the trial court. Hawkins v. State, 951 N.E.2d 597,

      599 (Ind. Ct. App. 2011), trans. denied.


[5]   There is some dispute between Drummond and the State as to which version of

      the sentence modification statute controls. Generally, a defendant is governed

      by the sentencing statutes in effect at the time he committed his crime. See




      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015   Page 2 of 5
      Gutermuth v. State, 868 N.E.2d 427, 431 n.4 (Ind. 2007). We believe the statutes

      in effect at the time of Drummond’s crime and sentence are controlling. 1


                                  II. Motion for Evaluation
[6]   Drummond claims that the trial court erred by denying his motion to order the

      Miami Correctional Facility to prepare an evaluation of Drummond. He cites

      Indiana Code section 35-38-1-17(a)(3) (2014), claiming that the trial court has

      no discretion to deny his motion for a report from the correctional facility. We

      note that the statute in effect at the time of Drummond’s crime and sentence

      references a report only where a sentence modification occurs within 365 days

      after the defendant begins serving his sentence. See Ind. Code § 35-38-1-17(a)(3)

      (2002). Regardless, this court has previously held that the trial court may deny

      a defendant’s motion for modification of sentence without first reviewing or

      obtaining a report from the Department of Correction. See Banks v. State, 847

      N.E.2d 1050, 1053 (Ind. Ct. App. 2006), trans. denied. Drummond’s argument

      to the contrary is without merit.


                                  III. Sentence Modification
[7]   Next, Drummond challenges the trial court’s denial of his motion for

      modification of sentence and the court’s failure to hold a hearing on that

      motion. As to Drummond’s entitlement to a hearing, it is well-established that




      1
        Even if Drummond were correct that the 2014 sentence modification statute applied, his claims would still
      fail under that version of the statute.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015              Page 3 of 5
      Indiana Code section 35-38-1-17’s requirement for a hearing is triggered only

      after the trial court has made a preliminary determination to suspend or reduce

      a defendant’s sentence. See Robinett v. State, 798 N.E.2d 537, 539 (Ind. Ct. App.

      2003) (citing Reichard v. State, 510 N.E.2d 163, 167 (Ind. 1987)), trans. denied.

      Because the trial court made a preliminary decision to deny Drummond’s

      motion, a hearing was not required. See id.2


[8]   Drummond also contends that the circumstances favor a modification of his

      sentence, claiming that he has demonstrated his rehabilitation since the time of

      his imprisonment. “[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 [a defendant’s] sentence.” Marshall v. State, 563 N.E.2d

      1341, 1343-44 (Ind. Ct. App. 1990), trans. denied; accord Catt v. State, 749 N.E.2d

      633, 643-44 (Ind. Ct. App. 2001), trans. denied. Drummond’s appealed order

      indicates that the trial court reviewed the record and his motion before denying

      the request for a sentence modification. The trial court has discretion to do so,

      and we are not in a position to disregard it.




      2
        Drummond claims that he is entitled to a hearing under our supreme court’s decision in Pannarale v. State,
      638 N.E.2d 1247 (Ind. 1994). That decision does not even contain the word “hearing,” let alone hold that
      one is necessary before denying a motion for sentence modification.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015               Page 4 of 5
                                               Conclusion
[9]    Concluding the trial court did not abuse its discretion by denying Drummond’s

       motion for evaluation or his motion for sentence modification, we affirm.


[10]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015   Page 5 of 5
