MEMORANDUM DECISION
                                                                   Apr 27 2015, 9:12 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.



APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Terry Twitty, Sr.                                        Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Terry Twitty, Sr.,                                       April 27, 2015

Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         32A04-1410-CR-472
        v.                                               Appeal from the Hendricks Superior
                                                         Court
State of Indiana,
                                                         The Honorable Karen M. Love,
Appellee-Respondent.                                     Judge

                                                         Cause No. 32D03-0212-FA-8




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A04-1410-CR-472| April 27, 2015       Page 1 of 5
                                       Statement of the Case
[1]   Terry R. Twitty, Sr., appeals the trial court’s denial of his motion for

      modification of sentence. Twitty presents one issue for our review, namely,

      whether the trial court abused its discretion when it denied his motion. We

      affirm.


                                 Facts and Procedural History
[2]   On June 19, 2003, after a three-day trial, a jury convicted Twitty of five counts

      of child molesting, three counts as Class A felonies and two counts as Class C

      felonies. Subsequently, on August 14, 2003, the trial court sentenced Twitty to

      an aggregate sentence of 108 years in the Indiana Department of Correction.

      Twitty appealed, and we affirmed Twitty’s convictions and his sentence. See

      Twitty v. State, No. 32A01-1001-PC-19, 2010 WL 3782054, at *1 (Ind. Ct. App.

      Sept. 29, 2010), trans. denied.


[3]   Later, Twitty filed a pro se petition for post-conviction relief, “in which he

      alleged that he received ineffective assistance of trial and appellate counsel.” Id.

      With respect to his latter claim, Twitty contended that appellate counsel erred

      when it failed to “anticipate . . . changes to Indiana’s sentencing

      laws . . . announced by our Supreme Court in Smylie v. State, 823 N.E.2d 679

      (Ind. 2005).” Id. at *2. The post-conviction court rejected Twitty’s ineffective

      assistance of counsel claims but, nevertheless, “modified Twitty’s sentence

      downward for an aggregate sentence of eighty-four years executed.” Id. Twitty

      appealed the denial of his ineffective assistance of counsel claims, and the State


      Court of Appeals of Indiana | Memorandum Decision 32A04-1410-CR-472| April 27, 2015   Page 2 of 5
      cross-appealed the downward modification of Twitty’s sentence. Id. at *1. We

      affirmed the post-conviction court’s denial of Twitty’s ineffective assistance of

      counsel claims, but we reversed the downward modification of Twitty’s

      sentence and ordered the post-conviction court to reinstate his original

      sentence.1 See id. at *3-5.


[4]   Following the disposition of his post-conviction claims, on December 20, 2012,

      Twitty filed a pro se motion for modification of sentence, which the trial court

      denied. However, on July 1, 2014, amendments to our criminal code took

      effect, and, on August 28, 2014, Twitty filed a second pro se motion for

      modification of sentence, this time under revised Indiana Code Section 35-38-1-

      17(c). The State objected to Twitty’s motion, and the trial court denied the

      motion. This appeal ensued.


                                       Discussion and Decision
[5]   Twitty contends that the trial court erred when it denied his second petition to

      modify his sentence, which Twitty filed pursuant to the current version of

      Indiana Code Section 35-38-1-17(c). “We review a trial court’s decision to

      modify a sentence only for abuse of discretion. An abuse of discretion occurs if

      the court’s decision is clearly against the logic and effect of the facts and




      1
        The United States District Court for the Southern District of Indiana also recently denied a petition for a
      writ of habeas corpus filed by Twitty. See Twitty v. Butts, No. 1:12–cv–00985–TWP–MJD, 2013 WL 1975868
      (S.D. Ind. May 13, 2013).

      Court of Appeals of Indiana | Memorandum Decision 32A04-1410-CR-472| April 27, 2015                Page 3 of 5
      circumstances before the court.” Hobbs v. State, 26 N.E.2d 983 (Ind. Ct. App.

      2015).


[6]   According to the provision of the Indiana Code relied on by Twitty:

               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).


[7]   In Hobbs, we addressed the very same argument now presented by Twitty, and

      we stated:

               [Indiana Code Section 35-38-1-17(c)] became effective on July 1,
               2014, as part of our 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 . . . ; 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, 928-29 (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

      Court of Appeals of Indiana | Memorandum Decision 32A04-1410-CR-472| April 27, 2015   Page 4 of 5
              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.


      26 N.E.3d at 985 (emphasis in original).


[8]   Hobbs is directly on point, and, therefore, Twitty’s argument that Indiana Code

      Section 35-38-1-17 was intended to be retroactive is contrary to law. Twitty

      was convicted and sentenced in 2003. Under the law in effect at that time, if

      the State objected to a motion to modify sentence, a trial court could not grant

      the motion. Here, the State objected, and the trial court appropriately denied

      Twitty’s motion. The court did not abuse its discretion when it did so.


[9]   Affirmed.


      Baker, J., and Friedlander, J. concur.




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