MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Mar 31 2016, 8:58 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Robert M. Nolan                                          Gregory F. Zoeller
New Castle, Indiana                                      Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert M. Nolan,                                         March 31, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A01-1503-CR-120
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Maria D. Granger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         22D03-0907-FB-1637



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016          Page 1 of 5
                                       Statement of the Case
[1]   Robert Nolan appeals the trial court’s denial of his petition for modification of

      his sentence following his convictions for rape, as a Class B felony; child

      molesting, as a Class C felony; and two counts of child seduction, Class D

      felonies. Nolan presents a single issue for our review, namely, whether the trial

      court abused its discretion when it denied his petition for modification of his

      sentence. We affirm.


                                 Facts and Procedural History
[2]   On July 2, 2010, a jury found Nolan guilty of rape, as a Class B felony; child

      molesting, as a Class C felony; and two counts of child seduction, Class D

      felonies. The trial court entered judgment of conviction on all counts and

      sentenced Nolan to an aggregate term of thirty years with eight years suspended

      to probation. This court affirmed his convictions and sentence on appeal.

      Nolan v. State, No. 22A01-1007-CR-433, 2012 WL 456537 (Ind. Ct. App.

      February 14, 2012).


[3]   On June 17, 2014, Nolan filed a petition for modification of his sentence. At a

      hearing on the petition, the State objected to any modification of his sentence.

      Still, the trial court heard testimony from several character witnesses. The trial

      court took the matter under advisement, and on March 2, 2015, the trial court

      denied Nolan’s petition. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016   Page 2 of 5
                                     Discussion and Decision
[4]   We review a trial court’s decision regarding modification of a sentence for an

      abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). An

      abuse of discretion occurs when the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before the court or when the

      court misinterprets the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).


[5]   A trial court generally has no authority over a defendant after sentencing. State

      v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). A notable exception is Indiana Code

      Section 35-38-1-17, which gives trial courts authority under certain

      circumstances to modify a sentence after it is imposed. Id. From 1991 until

      June 30, 2014, the relevant section of the sentence modification statute read:

              (b) 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 § 35-38-1-17(b) (2009) (emphasis added). Effective July 1, 2014, the

      criminal code was subject to a comprehensive revision pursuant to P.L. 158-

      2013 and P.L. 168-2014. The pertinent section of the sentence modification

      statute was amended to read:


              (c) 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



      Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016   Page 3 of 5
              the court was authorized to impose at the time of sentencing.
              The court must incorporate its reasons in the record.


      Ind. Code § 35-38-1-17(c) (2014). The legislature also included a specific

      savings clause as part of the 2014 revision of the criminal code, stating that:

              (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 [Vicory] v. State [272 Ind. 683], 400 N.E.2d 1380
              (Ind. 1980)) to apply to any SECTION of P.L. 158-2013 or P.L.
              168-2014.


      I.C. § 1-1-5.5-21.


[6]   This court has held that “the 2014 amendment to Indiana Code section 35-38-1-

      17 was neither remedial nor procedural” and “the savings clause evinces the

      intent of the legislature to apply the new criminal code only prospectively.”

      Johnson v. State, 36 N.E.2d 1130, 1137 (Ind. Ct. App. 2015), trans. denied. Here,

      as the State points out, “every provision of the savings clause bars Nolan’s
      Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016   Page 4 of 5
      petition: his crimes were committed, his penalties incurred, and these

      proceedings were begun before July 1, 2014.” Appellee’s Br. at 9. Because the

      prosecutor objected to Nolan’s petition for modification of his sentence, the trial

      court had no authority to modify his sentence under the applicable version of

      Indiana Code Section 35-38-1-17(b), and the court did not abuse its discretion

      when it denied Nolan’s petition. See Carr v. State, 33 N.E.2d 358, 359 (Ind. Ct.

      App. 2015) (holding pre-2014 version of sentence modification statute applied

      where defendant petitioned for modification after effective date of new version

      of statute but had committed crimes prior to 2000), trans. denied.


[7]   Affirmed.


      Robb, J., and Crone, J., concur.




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