                                                                     Dec 31 2015, 8:37 am




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Shawn Jaco                                                Gregory F. Zoeller
Pendleton, Indiana                                        Attorney General of Indiana

                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shawn Jaco,                                              December 31, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1506-CR-817
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1011-FB-1353



Brown, Judge.




Court of Appeals of Indiana | Opinion 82A01-1506-CR-817| December 31, 2015                  Page 1 of 8
[1]   Shawn Jaco, pro se, appeals from the denial of his motion for modification of

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

      court erred in denying his motion. We affirm.


                                       Facts and Procedural History

[2]   In November 2011, a jury found Jaco guilty of aggravated battery as a class B

      felony and criminal confinement as a class C felony. On December 14, 2011,

      the trial court sentenced Jaco to fourteen years for his conviction for aggravated

      battery and five years for his conviction for criminal confinement, to be served

      concurrently with each other. We affirmed Jaco’s convictions on appeal. Jaco

      v. State, No. 82A01-1203-CR-104 (Ind. Ct. App. December 31, 2012), trans.

      denied.


[3]   On February 17, 2015, Jaco filed a motion for modification of sentence arguing

      that he has been fully rehabilitated. On May 28, 2015, the court held a hearing

      at which the State objected, and the court denied Jaco’s motion.


                                                   Discussion

[4]   The issue is whether the trial court erred in denying Jaco’s motion 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, 545-546 (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.

      Court of Appeals of Indiana | Opinion 82A01-1506-CR-817| December 31, 2015   Page 2 of 8
      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).


[5]   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).


[6]   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).


[7]   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;

      Court of Appeals of Indiana | Opinion 82A01-1506-CR-817| December 31, 2015   Page 3 of 8
                       (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 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 (eff. July 1, 2014).


[8]   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

      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).


[9]   Jaco asserts that the trial court abused its discretion in denying his motion and

      that, while more than 365 days had passed since he was sentenced, his motion

      Court of Appeals of Indiana | Opinion 82A01-1506-CR-817| December 31, 2015   Page 4 of 8
       deserved more consideration. He argues the court should have allowed him an

       opportunity to express his commitment to change, that he has completed

       several rehabilitative programs, and that he has shown reformative behavior.

       Jaco further argues that the revision of Ind. Code § 35-38-1-17 gives a trial court

       authority to move a petitioner, over 365 days after sentencing, from the

       Department of Correction to community corrections without a prosecutor’s

       approval, and that this change was procedural and ameliorative and therefore

       should be applied to him. The State maintains that Jaco is a violent criminal

       under Ind. Code § 35-38-1-17(d)(6) as he committed aggravated battery, that he

       did not file his motion for modification until more than 365 days after he was

       sentenced, and thus that the trial court could not modify his sentence under Ind.

       Code § 35-38-1-17(a).


[10]   Jaco contends that the version of Ind. Code § 35-38-l-17 which became effective

       on July 1, 2014, is applicable to him and thus that he is not required to obtain

       prosecutorial approval with respect to his modification request. To the extent

       his contention is based on the filing date of his motion for modification of

       sentence, we observe that this court has held that the 2014 version of the statute

       does not apply under these circumstances. 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




       Court of Appeals of Indiana | Opinion 82A01-1506-CR-817| December 31, 2015   Page 5 of 8
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.”).
        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,

Court of Appeals of Indiana | Opinion 82A01-1506-CR-817| December 31, 2015   Page 6 of 8
       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 Additionally, in

       Johnson v. State, we concluded that the 2014 amendment to Ind. Code § 35-38-1-

       17(b) was not remedial, that the 2014 amendment constituted a substantive and

       not a procedural change, that thus the 2014 version of the statute did not apply

       to the Johnsons, and accordingly we affirmed the denial of the Johnsons’

       petitions for sentence modifications in that case.2 36 N.E.3d at 1134-1138.


[11]   Based on these cases and the language of the savings clause found at Ind. Code

       § 1-1-5.5-21 (2014), we conclude that the version of Ind. Code § 35-38-1-17

       which became effective July 1, 2014, does not apply to Jaco’s motion for

       modification of sentence.


[12]   Additionally, we note that Ind. Code § 35-38-1-17 was amended again effective

       May 5, 2015. The 2015 version of the statute includes a provision that,

       notwithstanding the savings clause found at Ind. Code § 1-1-5.5-21, the




       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.
       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.

       Court of Appeals of Indiana | Opinion 82A01-1506-CR-817| December 31, 2015                         Page 7 of 8
       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),3 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

       aggravated battery. Ind. Code § 35-38-l-17(c), -17(d)(6) (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, Jaco would not be and is not entitled to file a petition for modification of

       his sentence under the 2015 version of the modification statute without

       prosecutorial consent.


                                                    Conclusion

[13]   For the foregoing reasons, we affirm the trial court’s denial of Jaco’s motion for

       modification of sentence.


[14]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       3
        Subsection (m) applies to a person who commits an offense after June 30, 2014, and before May 15, 2015,
       and is inapplicable here.

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