                                                                                      FILED
                                                                                 Sep 10 2018, 9:18 am

                                                                                      CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Jeremy Schmitt                                            Curtis T. Hill, Jr.
      Carlisle, Indiana                                         Attorney General of Indiana

                                                                Ellen H. Meilaender
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jeremy Schmitt,                                           September 10, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                83A04-1711-CR-2720
              v.                                                Appeal from the Vermillion Circuit
                                                                Court
      State of Indiana,                                         The Honorable John Rader,
      Appellee-Plaintiff                                        Special Judge
                                                                Trial Court Cause No.
                                                                83C01-0404-MR-2



      May, Judge.


[1]   Jeremy Schmitt, pro se, appeals the denial of his petition to modify sentence.

      We reverse and remand.



                             Facts and Procedural History
      Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018                      Page 1 of 13
[2]   On April 28, 2004, the State charged Schmitt with murder 1 and Class A felony

      conspiracy to commit murder. 2 On March 28, 2005, pursuant to a plea

      agreement, the trial court accepted Schmitt’s guilty plea and sentenced him to

      fifty years for Class A felony conspiracy. Schmitt appealed the sentence, and

      we affirmed in a memorandum decision. Schmitt v. State, No. 83A01-0507-CR-

      321 (Ind. Ct. App. May 31, 2006) (mem. dec.), trans. denied.


[3]   On May 11, 2009, Schmitt filed a petition for modification of his sentence. The

      State objected. The trial court denied his petition on May 29, 2009. On

      November 30, 2012, Schmitt filed a petition for post-conviction relief that was

      denied. Schmitt appealed the denial, and we affirmed. Schmitt v. State, No.

      83A05-1409-PC-425, 2015 WL 4875793 (Ind. Ct. App. Aug. 14, 2015) (mem.

      dec.), trans. denied.


[4]   On April 29, 2014, Schmitt filed another petition for modification of his

      sentence. The trial court ordered an evaluation be prepared by the Department

      of Correction (“DOC”). The State objected to the modification. On August

      21, 2014, the trial court denied the petition.


[5]   On May 15, 2017, Schmitt filed another petition for modification of his

      sentence wherein he lists the many programs, educational and employment,

      that he has completed while incarcerated. The State objected to the




      1
          Ind. Code 35-42-1-1 (2001).
      2
          Ind. Code § 35-41-5-2 (1977).


      Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018   Page 2 of 13
      modification. Prior to a ruling, on September 18, 2017, Schmitt filed a motion

      to reconsider. 3 The trial court denied the petition, stating:


                Defendant herein filed his Petition for Modification of Sentence
                to which the State responded and thereafter Defendant filed a
                Motion to Reconsider such sentence modification.
                Defendant according to his Petitions has made positive strides
                during his incarceration which are to be complimented.
                However the Court finds that such Petition should be and hereby
                is denied.


      (App. Vol. II at 41.)



                                   Discussion and Decision
[6]   Generally, we review denial of a motion to modify a sentence for an abuse of

      discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). However, we

      “review matters of statutory interpretation de novo because they present pure

      questions of law.” State v. Brunner, 947 N.E.2d 411, 416 (Ind. 2011), reh’g

      denied.


[7]   At issue in this case is Indiana Code section 35-38-1-17, which defines when a

      trial court has authority to modify a sentence. Prior to July 1, 2014, the statute

      provided a defendant who had served more than 365 days of his sentence could




      3
        In his motion to reconsider, Schmitt requested the trial court reconsider its denial of his petition for
      modification of sentence. However, nothing in the record indicates the trial court had ruled on his most
      recent petition at the time the motion to reconsider was filed.

      Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018                      Page 3 of 13
      move to have his sentence modified by the trial court, “subject to the approval of

      the prosecuting attorney.” Ind. Code § 35-38-l-17(b) (2013) (emphasis added).

      Thus, if the prosecutor did not approve, the trial court had no authority to

      modify a sentence.


[8]   Effective July 1, 2014, our legislature eliminated the need for the prosecuting

      attorney’s approval. See I.C. § 35-38-l-17(c) (2014) (providing, after defendant

      has served 365 days, court has authority to reduce or suspend sentence to a

      sentence available at the time of sentencing and “court must incorporate its

      reasons in the record”). However, another statute that also took effect in 2014

      made the new version of Indiana Code section 35-38-1-17 inapplicable to “(1)

      penalties incurred; (2) crimes committed; or (3) proceedings begun; before [July

      1, 2014]. Those penalties, crimes, and proceedings continue and shall be

      imposed and enforced under prior law as if [the new sentencing laws] had not

      been enacted.” I.C. § 1-1-5.5-21(a) (2014). Accordingly, if Schmitt, who was

      sentenced in 2005, had petitioned for sentence modification after July 1, 2014,

      the court could not have modified his sentence without the prosecutor’s

      approval. See, e.g., Swallows v. State, 31 N.E.3d 544, 547 (Ind. Ct. App. 2015)

      (holding defendant sentenced in 1989 had no right to sentence modification

      without prosecutor’s approval under 2014 version of Ind. Code section 35-38-1-

      17), trans. denied, superseded by statutory amendment.


[9]   Public Law 164-2015 amended Indiana Code section 35-38-1-17 to explicitly

      provide the sentencing relief available therein applied retroactively to “a person

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

      Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018   Page 4 of 13
       35-38-1-17(a) (2015); see also Vazquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App.

       2015) (discussing statutory change). Therefore, the statute, as currently written,

       applies to Schmitt and he was eligible to petition the trial court for reduction or

       suspension of his sentence twice without the approval of the prosecuting

       attorney. See I.C. § 35-38-1-17(j) (2015) (a convicted person not designated a

       violent criminal may file a maximum of two petitions for sentence modification

       with not more than one petition in any 365-day period).


[10]   The current version of Indiana Code section 35-38-1-17 states, in pertinent part:


               (a) Notwithstanding IC 1-1-5.5-21, this section applies to a
               person who:


                        (1) commits an offense; or
                        (2) is sentenced;


               before July 1, 2014.


                                                      *****


               (e) At any time after:


                        (1) a convicted person begins serving the person’s
                        sentence; and
                        (2) the court obtains a report from the department of
                        correction concerning the convicted person’s conduct
                        while imprisoned;


               the court may reduce or suspend the sentence and impose a
               sentence that the court was authorized to impose at the time of

       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018   Page 5 of 13
               sentencing. However, if the convicted person was sentenced
               under the terms of a plea agreement, the court may not, without
               the consent of the prosecuting attorney, reduce or suspend the
               sentence and impose a sentence not authorized by the plea
               agreement. The court must incorporate its reasons in the record.


                                                      *****


               (h) The court may deny a request to suspend or reduce a sentence
               under this section without making written findings and
               conclusions.


                                                          *****


               (j) This subsection applies only to a convicted person who is not
               a violent criminal. A convicted person who is not a violent
               criminal may file a petition for sentence modification under this
               section:


                        (1) not more than one (1) time in any three hundred sixty-
                        five (365) day period; and
                        (2) a maximum of two (2) times during any consecutive
                        period of incarceration;


               without the consent of the prosecuting attorney.


                         Requirement to Obtain a Report or Hold a Hearing

[11]   Schmitt argues the trial court erred by not ordering the DOC to produce a new

       progress report and by not holding a hearing. Schmitt asserts these failures

       show “the trial court never intended to consider Schmitt’s rehabilitative

       efforts.” (Br. of Appellant at 11.)


       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018   Page 6 of 13
[12]   In Robinett v. State, 798 N.E.2d 537 (Ind. Ct. App. 2003), trans. denied, Robinett

       appealed the denial of his petition to modify sentence because the trial court

       had “summarily denied his motion . . . without a hearing and without a

       response from the prosecuting attorney.” Id. at 538. We held the trial court

       was required to notify the prosecutor and to hold a hearing only if it had made

       a preliminary determination to reduce or suspend the petitioner’s sentence. Id.

       at 539 (quoting Reichard v. State, 510 N.E.2d 163, 167 (Ind. 1987)).


[13]   The current version of Indiana Code section 35-38-1-17 states, in pertinent part:


               (f) If the court sets a hearing on a petition under this section, the
               court must give notice to the prosecuting attorney and the
               prosecuting attorney must give notice to the victim (as defined in
               IC 35-31.5-2-348) of the crime for which the convicted person is
               serving the sentence.


                                                      *****


               (i) The court is not required to conduct a hearing before reducing
               or suspending a sentence under this section if:


                        (1) the prosecuting attorney has filed with the court an
                        agreement of the reduction or suspension of the sentence;
                        and
                        (2) the convicted person has filed with the court a waiver
                        of the right to be present when the order to reduce or
                        suspend the sentence is considered.


[14]   The 2014 and 2015 amendments changed multiple parts of this statute, but the

       modifications do not appear to have imposed a requirement for a hearing if the


       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018   Page 7 of 13
       court intends to deny the petition. Because the statute provides no indication

       the legislature intended to overturn or modify the court’s holding in Robinett,

       we presume the legislature intended to keep that law intact. See, e.g., Layman v.

       State, 42 N.E.3d 972, 978 (Ind. 2015) (where legislature modifies statute

       without impacting case law holdings, legislature has acquiesced to the validity

       of the holdings).


[15]   The trial court here did not indicate it had made a preliminary determination to

       reduce or suspend Schmitt’s sentence. The trial court did order the prosecutor’s

       office to respond to Schmitt’s petition but did not indicate in any way that it

       was considering granting the petition. Schmitt included in his petition and in

       his motion for reconsideration all the educational and employment

       opportunities he had pursued while incarcerated. The trial court’s order praised

       Schmitt’s “positive strides,” (App. Vol. II at 41), which demonstrates the court

       acknowledged Schmitt’s recitation of those pursuits. Three years earlier, the

       trial court had ordered a progress report from the DOC, and that report verified

       most, if not all, the programs Schmitt had pursued while incarcerated.

       However, without a preliminary determination to grant Schmitt’s petition, the

       trial court was not required to hold a hearing or request another progress report

       from the DOC. See Robinett, 798 N.E.2d at 539 (trial court is not required to

       hold a hearing if it has not made a preliminary decision to reduce or suspend a

       sentence).




       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018   Page 8 of 13
                                              Prosecutorial Consent

[16]   Schmitt argues the State’s objection to his petition “did not preclude the trial

       court from granting a sentence modification.” (Br. of Appellant at 8.) While he

       originally based his argument on the sections of the statute regarding violent

       criminals, 4 in his reply brief he argues we are bound by Woodford v. State, 58

       N.E.3d 282 (Ind. Ct. App. 2016), which held petitions for modification filed

       prior to the effective date of the 2015 amendment of Indiana Code section 35-

       38-1-17 did not count toward the two petitions a petitioner could file without

       prosecutorial consent pursuant to subjection (j)(2) of that statute. Therefore,

       according to Schmitt, although he has filed three petitions to modify since being

       sentenced in 2005, only one of those was filed after the 2015 amendment, such

       that prosecutorial consent was not required for the court to grant his current

       petition.


[17]   The State acknowledges the Woodford holding, but argues Schmitt has exceeded

       the limit on petitions that can be filed without prosecutorial consent. In support

       thereof, the State cites Vazquez, 37 N.E.3d at 964 (holding number of petitions

       includes pre-amendment petitions and petitioner is required to acquire

       prosecutorial consent if total greater than two). To determine which case to

       follow, we review each in more detail.




       4
        Schmitt’s conviction does not render him a “violent criminal” under the definition provided by Indiana
       Code section 35-38-1-17. The State acknowledges this.

       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018                  Page 9 of 13
[18]   In 2014, Vazquez filed his third petition to modify, and his last two petitions

       were filed within three months of one another. Id. at 963. The trial court

       deemed the third petition untimely and dismissed the petition. Id. Vazquez

       appealed asserting, in pertinent part, the amended statutes regarding sentence

       modifications should apply to him. 5 Id. at 964. A panel of this court first noted

       the statute was to be applied retroactively, such that the limitations in the

       statute applied to Vazquez. Id. The panel then noted the statute specifically

       stated a non-violent criminal may, “without the consent of the prosecuting

       attorney[,]” file a petition for a sentence modification “not more than one (1)

       time in any three hundred sixty-five (365) day period[.]” I.C. § 35-38-1-17(j)(1).

       Because the appealed petition had been filed within three months of Vasquez’s

       previous petition, prosecutorial consent was required, and as the prosecutor had

       not consented, the trial court had no authority to grant his petition. Id. The

       opinion also noted, as dicta and without further analysis, that the statute limited

       the number of petitions that could be filed without prosecutorial consent to two

       and that Vazquez, who had filed three petitions, had “exceeded the authorized

       number of filings” that could occur without consent. Id.


[19]   Almost a year later, in Woodford, another panel of our Court was asked to

       decide whether petitions filed prior to the 2015 amendment counted against the

       two-petition limitation of Indiana Code section 35-38-1-17(j) (2015). Woodford




       5
        Vazquez also asserted the trial court was biased against him and lacked jurisdiction to rule on his petitions.
       Vazquez, 37 N.E.3d at 964. However, those issues are not pertinent to our review.

       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018                     Page 10 of 13
       had filed three modification petitions prior to the statutory amendment.

       Woodford, 58 N.E.3d at 283-4. He filed his fourth petition in 2015, and the trial

       court denied it because Woodford did not have prosecutorial consent for the

       modification. Id. at 284. The Woodford panel held that although the


               statute does not unequivocally or unambiguously state the two-
               petition limit in Subsection (j)(2) should apply retrospectively to
               petitions filed before the statute’s effective date . . . to apply the
               limit retrospectively in a remedial statute like this one would
               produce an absurd result: it would deny Woodford the
               opportunity for sentence modification under the new statutory
               terms, even though Section 35-38-1-17(a) explicitly extends the
               new scheme to persons like Woodford who were convicted and
               sentenced before July 1, 2014.


       Id. at 286. In so holding, the Woodford panel noted “the issue of which

       petitions count toward the limit was not squarely presented to the Court” in

       Vasquez. Id. at 286 n.9. Therefore, the Woodford panel held, the Vazquez ruling

       was not controlling. Id.


[20]   Schmitt’s situation is analogous to Woodford. Schmitt filed two petitions to

       modify prior to the 2015 amendment in the statute. Schmitt filed his third

       petition in 2017. Pursuant to the reasoning in Woodford, as it pertains to the

       two-petition limit in Indiana Code section 35-38-1-17(j)(2), this is Schmitt’s first

       petition to modify his sentence and prosecutorial consent was not required. See

       id. at 287 (prosecutorial consent not required if number of petitions filed since

       2015 amendment has not exceeded two).



       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018   Page 11 of 13
                                                 Abuse of Discretion

[21]   The trial court has broad discretion to modify a sentence. Ames v. State, 471

       N.E.2d 327, 331 (Ind. Ct. App. 1984). As a general rule, an abuse of discretion

       will not be found unless a decision is clearly against the logic and effect of the

       facts and circumstances before the court. Id. In determining whether an abuse

       of discretion occurred, we may not reweigh the evidence, but will consider only

       the evidence favorable to the judgment. Catt v. State, 749 N.E.2d 633, 640 (Ind.

       Ct. App. 2001), reh’g denied, trans. denied 761 N.E.2d 422 (Ind. 2001).


[22]   We address whether the trial court abused its discretion when it denied

       Schmitt’s petition because it is unclear why the trial court denied the petition.

       Schmitt argues that because the trial court did not explain its reasons for denial,

       that denial could have been “premised upon the State’s objection or a belief in

       that the original sentence was appropriate.” 6 (Reply Br. at 5.) The State argues

       that because Schmitt’s sentence was affirmed by our Court and because Schmitt

       has served only fifteen years of a fifty-year sentence, the trial court did not

       abuse its discretion when it denied Schmitt’s petition.


[23]   On May 31, 2017, the trial court ordered the prosecutor to “advise the Court on

       or before June 30, 2017, as to their position regarding any sentence




       6
         Schmitt focuses a significant amount of argument on speculation that the trial court did not consider his
       rehabilitative efforts. When denying a petition, the trial court is not required to make written findings and
       conclusions. I.C. § 35-38-1-17(h). As we remand due to possible confusion regarding prosecutorial consent,
       we need not address this speculative argument. Nonetheless, the trial court implied it had read Schmitt’s
       petition listing his rehabilitative efforts when it mentioned his “positive strides” in its denial order. (App.
       Vol. II at 41.)

       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018                     Page 12 of 13
       modification.” (App. Vol. II at 33.) The trial court’s order denying the

       modification notes the prosecutor objected. These two facts suggest the trial

       court may have been under the impression it was required to have prosecutorial

       consent to modify Schmitt’s sentence. In light of that possible confusion, we

       reverse and remand for the trial court to decide the petition on its merits. See

       Woodford, 58 N.E.3d at 287 (when it is unclear whether the trial court was

       operating under a misapprehension of its authority, we decline to review the

       order for an abuse of discretion but rather remand for the trial court to consider

       on the merits). If the court makes a preliminary determination that it would

       grant Schmitt’s petition, then the court should request documentation from the

       DOC and hold a hearing on Schmitt’s petition in accordance with the statutory

       requirements. See supra Issue I.



                                                Conclusion
[24]   Because the two-petition limit includes only such petitions as have been filed

       since the statute was amended in 2015, Schmitt’s petition is effectively the first

       petition he has filed, and prosecutorial consent was not required. Although a

       trial court is not required to explain its reasons for denial, because the trial court

       mentioned the State’s response in its order, we reverse that denial and remand

       for the trial court to review Schmitt’s petition on its merits.


[25]   Reversed and remanded.


       Riley, J., and Mathias, J., concur.

       Court of Appeals of Indiana | Opinion 83A04-1711-CR-2720 | September 10, 2018   Page 13 of 13
