                                                                    Apr 22 2015, 9:40 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Frederick Vaiana                                           Gregory F. Zoeller
Voyles, Zahn & Paul                                        Attorney General of Indiana
Indianapolis, Indiana
                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Derek L. Moore,                                            April 22, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1408-CR-398
        v.                                                 Appeal from the Marion Superior
                                                           Court
                                                           The Honorable Mark D. Stoner
State of Indiana,                                          Cause No. 49G06-0410-FB-187118
Appellee-Plaintiff




Bailey, Judge.




Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                    Page 1 of 22
                                           Case Summary
[1]   Derek L. Moore (“Moore”) appeals the trial court’s denial of his motion to

      correct error, which challenged the court’s denial of his petition for sentence

      modification. We hold that the trial court erred in finding that it did not have

      the authority to entertain Moore’s petition for sentence modification. However,

      we affirm the trial court’s judgment to deny Moore’s petition on its merits.



                                                     Issues
[2]   Moore raises one issue on appeal, which we restate as: whether the trial court

      erred when it denied Moore’s petition for sentence modification because the

      trial court did not apply a recent statutory revision that provided Moore

      procedural, as opposed to substantive, relief. We also address an issue first

      raised in the State’s brief: whether Moore’s appeal should be dismissed as

      moot.



                             Facts and Procedural History
[3]   On February 13, 2006, pursuant to a plea agreement, Moore pleaded guilty in

      cause number 49G06-0410-FB-187118 (“FB-7118”) to three counts of Robbery,

      as Class B felonies, and two counts of Unlawful Possession of a Firearm by a

      Serious Violent Felon, as Class B felonies. He also admitted to being a habitual

      offender.




      Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015        Page 2 of 22
[4]   On March 16, 2006, the court imposed ten year sentences for each of the five

      Class B felony convictions and ordered that they be served consecutively. The

      court also enhanced Moore’s first Robbery conviction sentence by ten years

      because of his habitual offender adjudication. The result was an aggregate

      sentence of sixty years.


[5]   On July 11, 2014, Moore petitioned the trial court to modify his sentence in FB-

      7118.1 The sentence modification statute under which Moore sought relief

      provides:

              (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 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 “revised statute”). The revised statute

      became effective July 1, 2014.


[6]   On July 16, 2014, the court denied Moore’s petition, citing a prior version of

      Indiana Code section 35-38-1-17, which provides, in relevant part:

              (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



      1
        Moore’s petition was filed under both cause numbers FB-7118 and a separate case, 49G06-0410-FB-184033
      (“FB-4033”). In his petition, Moore did not request a sentence modification in FB-4033, but asked only that
      his sentence in FB-4033 be served concurrently with his sentence in FB-7118, as originally ordered by the
      court. Because Moore’s appeal from his petition was consolidated under FB-7118 and concerns only a
      narrow legal question, we focus on the facts of FB-7118.

      Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                        Page 3 of 22
              suspend the sentence, subject to the approval of the prosecuting
              attorney. [. . . .]


      I.C. § 35-38-1-17(b) (Supp. 2006). The court found that it lacked authority to

      entertain Moore’s petition because the prosecuting attorney had not consented

      to a modification. The court also noted that Moore’s crime and sentence

      occurred prior to 2014 and “[t]he new statutes, effective on July 1, 2014, do not

      have retroactive application.” (App. at 31.)


[7]   On August 15, 2014, Moore filed a motion to correct error, arguing that the

      court had authority to entertain his petition because it was filed after the

      effective date of the revised statute. Moore argued that under the revised

      statute, the court had authority to modify his sentence without the prosecutor’s

      consent.


[8]   The court denied Moore’s motion to correct error, reasoning that a savings

      clause enacted in 2014 “clearly indicates the legislature’s intent that the new

      criminal code has no retroactive application.” (App. at 35.) The court’s order

      also stated that even if the court had authority to entertain Moore’s petition, it

      would not grant the petition “given the serious nature of these charges and the

      defendant’s criminal history[.]” (App. at 35.)


[9]   Moore now appeals.



                                  Discussion and Decision


      Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015    Page 4 of 22
                                          Standard of Review
[10]   A ruling on a motion to correct error generally is reviewed only for an abuse of

       discretion. Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). When a motion to

       correct error depends on a question of law, we review the trial court’s resolution

       of that question de novo. Id. Matters of statutory interpretation are reviewed de

       novo because they present pure questions of law. Gardiner v. State, 928 N.E.2d

       194, 196 (Ind. 2010).


[11]   The overarching principle in statutory interpretation is to first decide “whether

       the legislature has spoken clearly and unambiguously on the point in question.”

       Sloan v. State, 947 N.E.2d 917, 922 (Ind. 2011) (quoting Rheem Mfg. Co. v. Phelps

       Heating & Air Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001)). If a statute is

       clear and unambiguous, we do not apply any rules of construction other than

       giving effect to the plain and ordinary meaning of the language. Id. Thus, we

       will not delve into legislative intent unnecessarily if no ambiguity exists. Id.


                                                   Mootness
[12]   As an initial matter, the State argues that Moore’s appeal is moot because the

       trial court stated that, even if the revised statute applies, it would decline to

       grant Moore’s petition on the merits “given the serious nature of these charges

       and the defendant’s criminal history[.]” (App. at 35.)


[13]   A case is deemed moot when no effective relief can be rendered to the parties

       before the court. In re Lawrence, 579 N.E.2d 32, 37 (Ind. 1991). When the

       concrete controversy at issue has been ended or settled, or in some manner
       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015      Page 5 of 22
       disposed of, so as to render it unnecessary to decide the question involved, the

       case will be dismissed. Id. (citation and quotation marks omitted). Although

       moot cases are typically dismissed, Indiana courts have long recognized that a

       case may be decided on its merits under an exception to the general rule when

       the case involves questions of “great public interest.” Id. “Cases found to fall

       within the public interest exception typically contain issues likely to recur.” 2 Id.


[14]   In his reply brief, Moore argues that if we hold that the revised statute applies to

       him, subsection (h) permits him to petition for sentence modification a second

       time. See I.C. § 35-38-1-17(h) (2014). Therefore, Moore argues that even

       though the court indicated that it would deny Moore’s petition on its merits, it

       is not unnecessary to decide the question in Moore’s case. We agree that the

       revised statute, if applicable, would provide Moore future opportunity for relief.

       Thus, Moore’s appeal is not moot.


[15]   Moreover, even if the statute did not contain an additional avenue for relief for

       Moore, the terms under which a convicted person may petition for sentence

       modification have implications for numerous other convicted persons whose

       offenses were committed prior to the effective date of the revised statute.

       Because of the statute’s wide applicability and the likelihood that the same issue




       2
         Our supreme court has held that, unlike the federal mootness doctrine, it is not necessary under
       Indiana law that an issue of great public interest is one that is capable of repetition, but likely to
       evade review. Lawrence, 579 N.E.2d at 37 n.2.

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                   Page 6 of 22
       will appear again before this Court, Moore’s case, even if moot, falls within the

       public interest exception.


[16]   We turn now to the substance of Moore’s appeal.


                               Applicability of Revised Statute
[17]   Moore argues on appeal that, because the Indiana Code section under which

       Moore filed his petition was recently revised so that prosecutorial consent is not

       required, the trial court erred when it found that it had no authority to modify

       or reduce his sentence absent the consent of the prosecutor.


[18]   In 2013, the Indiana General Assembly passed substantial revisions to the

       Indiana criminal code. See Pub. L. No. 158-2013 (2013). As a result of the

       2013 bill and further revisions passed in 2014, Indiana Code section 35-38-1-17

       was amended to remove the need for prosecutor approval when a convicted

       person seeks a sentence modification more than 365 days after he or she began

       serving his or her sentence. See Pub. L. No. 158-2013, § 396 (2013); Pub. L.

       No. 168-2014, § 58 (2014).


[19]   The revised statute states:

               (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 the court was
               authorized to impose at the time of sentencing. The court must
               incorporate its reasons in the record.


       I.C. § 35-38-1-17(c) (2014). The revised statute became effective July 1, 2014.

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015       Page 7 of 22
[20]   Moore filed his petition on July 11, 2014, eleven days after the revised statute’s

       effective date. No provision in the revised Indiana Code section 35-38-1-17

       limits the statute’s application to persons convicted after July 1, 2014.

       Therefore, by the plain language of subsection (c), the trial court did not need to

       obtain the prosecutor’s consent to reduce or suspend Moore’s sentence.

       Accordingly, the trial court erred when it found that it did not have the

       authority to entertain Moore’s petition on its merits without the prosecutor’s

       consent.


[21]   The State argues, however, that the revised statute does not apply to Moore

       because Moore was convicted and sentenced in 2006. The State contends that

       the laws in effect at the time of Moore’s offense, not the laws in effect at the

       time he filed his petition, govern his petition for sentence modification.


[22]   It is true that, as a general rule, courts must sentence a convicted person under

       the statute in effect at the time the person committed the offense. Payne v. State,

       688 N.E.2d 164, 165 (Ind. 1997). We disagree, however, that the general rule

       bars Moore’s petition from proceeding under the revised statute. We

       confronted the same argument in Willis v. State, 567 N.E.2d 1170 (Ind. Ct. App.

       1991), trans. denied. At the time Willis originally was sentenced, the

       modification statute “limited the time in which sentence modification could

       take place to a period within 180 days of sentencing.” Id. at 1171. However,

       before Willis filed his petition, the statute was amended to permit modifications

       more than 180 days after sentencing. Id. The trial court held that Willis was

       ineligible to seek modification under the new statute because his petition was

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015      Page 8 of 22
       filed four years after he was sentenced – firmly outside the 180 day window

       provided in the old statute. Id.


[23]   On appeal, this Court acknowledged the general rule that the law in effect at the

       time a crime is committed controls sentencing, but ultimately held that the

       general rule did not apply to Willis’s petition. Id. at 1172. The Willis court

       explained that, unlike prior cases in which the convicted persons sought

       sentencing under more lenient statutes enacted after the commission of their

       offenses, in Willis’s case

               no question of sentence is involved. Rather, Willis merely sought to
               petition for modification of his sentence under provisions of a later
               enacted statute which enlarged the time in which he could so petition.
               In our view, the statute under which he sought relief was procedural, not
               substantive, was ameliorative, and he was not foreclosed from using
               that statute.
       Id. (emphases added). In other words, because the sentence modification

       statute governs the process by which sentences are modified, not the imposition

       of sentences, the general rule is inapplicable.


[24]   The Willis court’s conclusion that the change to the statute was “procedural, not

       substantive” was essential to the court’s holding. Id. This procedural aspect

       distinguished Willis’s case from an earlier case, State v. Crocker, 270 Ind. 377,

       385 N.E.2d 1143 (Ind. 1979), in which our supreme court held that a convicted

       person’s petition for modification could not proceed under a newly-enacted

       modification statute. The Willis court explained the distinction:




       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015             Page 9 of 22
               In Crocker, there was a substantive change because the new statute gave
               the sentencing court new powers, that is, the power to reduce as well
               as suspend the remainder of the sentence. No such substantive change
               is involved here. At the time of sentencing Ind. Code § 35-38-1-17(b)
               permitted the sentencing court to modify a sentence, either by
               reduction or suspension, at any time within 180 days of sentencing.
               The amendment effective June 1, 1985, did not make any changes in
               the sentencing court’s power over the sentence, but merely permitted,
               under certain circumstances, the sentencing court to consider sentence
               modification of the same kind more than 180 days after sentencing.


       Id. The Willis court held that because the legislature had merely altered the

       procedure by which a sentence could be modified and there was no change in

       the court’s sentencing power, Willis could petition for modification under the

       new statute.


[25]   We find the reasoning in Willis applicable here. In this case, under the prior

       version of the statute, the prosecuting attorney acted as a gatekeeper for those

       petitions filed more than 365 days after a convicted person began serving the

       sentence imposed. See I.C. § 35-38-1-17(b) (Supp. 2006). In Beanblossom v.

       State, we held that the requirement that the prosecutor consent to a sentence

       modification was not a limit on court’s sentencing power. 637 N.E.2d 1345,

       1348 (Ind. Ct. App. 1994), trans. denied. The court explained:

               The legislature was free, through the statute, to give the trial court
               authority to render a modification of the sentence with whatever
               conditions and within whatever time it deemed appropriate. The
               legislature chose to subject the authority to reduce or suspend a
               sentence to the approval of the prosecuting attorney if 365 days has
               passed. Even though the authority to modify is subject to such a
               condition, the statute does not take judicial power away from the trial court
               and give it to the prosecuting attorney. The statute gives the sentencing

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                 Page 10 of 22
               court authority, subject to certain conditions, to change the sentence of
               the defendant after the court has pronounced sentence and after the
               defendant has begun to serve that sentence.


       Id. (emphasis added). Beanblossom makes clear that the prosecutor’s consent,

       much like the timeframe in Willis, is not a substantive restriction on the trial

       court’s sentencing power, but a condition imposed by the legislature. 3


[26]   In this case, when the General Assembly revised the statute to remove the need

       for prosecutorial consent, it lifted a procedural barrier that prevented petitions

       from reaching the trial court for review on their merits and “did not make any

       changes in the sentencing court’s power over the sentence.” Willis, 567 N.E.2d

       at 1172. Thus, the recent revision to the sentence modification statute

       implemented a procedural change to a procedural statute. Accordingly, Moore

       is not barred from bringing his petition under the revised statute simply because

       he was convicted and sentenced before the revised statute’s effective date.


[27]   The State contends, however, that because Moore seeks to modify a sentence

       imposed in 2006, “[Moore] is asking for a retroactive or a retrospective




       3
         We acknowledge that in Morris v. State, 936 N.E.2d 354 (Ind. Ct. App. 2010), trans. denied, we
       held that a change to the sentencing modification statute that gave the trial court “the ability over 365
       days after sentencing to move a petitioner from the Department of Correction to community
       corrections without the prosecutor’s approval” was “not merely procedural.” Id. at 357. However,
       the specific provision of Indiana Code section 35-38-1-17(b)(2001) interpreted in Morris contained
       language not at issue here, specifically, language that gave the court certain modification powers
       based on the convicted person’s original sentencing date. Id. at 356. We find Morris distinguishable
       and Beanblossom’s discussion of the trial court’s sentencing powers more persuasive.



       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                     Page 11 of 22
       application of the [revised] statute.” (Appellant’s Br. at 17.) And because “the

       normal rules governing retroactive application of statutes and statutory

       construction would prevent [the revised statute] from applying to a crime that

       was committed prior to July 1, 2014[,]” the State argues that the revised statute

       does not apply to Moore’s petition. (Appellee’s Br. at 16).


[28]   A general rule of statutory construction is that, unless there are strong and

       compelling reasons, statutes will not be applied retroactively. State v. Pelley, 828

       N.E.2d 915, 919 (Ind. 2005). However, the State’s contention that Moore seeks

       retroactive application of the revised statute erroneously focuses on Moore’s

       conviction and sentencing date, rather than his petition date. Because the

       revised statute governs the sentence modification process, a petitioner’s original

       conviction or sentencing date is irrelevant to the determination of whether the

       statute is being applied retroactively. That is, in the context of sentence

       modification, the petition date is the critical date. Here, Moore filed his

       petition on July 11, 2014, after the revised statute’s effective date. Accordingly,

       his petition is not barred.


[29]   Of course, the fact that the revised statute applies to petitions filed on or after

       July 1, 2014 does not mean that the trial court is obligated to grant Moore a

       sentence modification or even conduct a hearing before denying the petition on

       its merits.4 Here, the court definitively stated that, regardless of the revised




       4
         Subsection (g) of the revised statute provides that a “court is not required to conduct a hearing before
       reducing or suspending a sentence under this section if” certain qualifications are met. I.C. § 35-38-1-17(g)

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                           Page 12 of 22
       statute’s applicability, the court would deny Moore’s petition due to the

       seriousness of his crimes and his criminal history. But Moore may file his

       petition, and the court may entertain it under the new statutory terms.


[30]   The State also argues also that a savings clause enacted in 2014 bars any person

       who was convicted or sentenced before July 1, 2014 from petitioning under the

       revised statute. Indiana Code section 1-1-5.5-21 states:

                (a) A SECTION of P.L.158-2013 or HEA 1006-2014 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 HEA
                1006-2014. Those penalties, crimes, and proceedings continue and
                shall be imposed and enforced under prior law as if that SECTION of
                P.L.158-2013 or HEA 1006-2014 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 HEA 1006-2014.


       I.C. § 1-1-5.5-21 (Supp. 2014) (the “savings clause”). The revisions to Indiana

       Code Section 35-38-1-17 occurred pursuant to Public Law 158-2013 and House




       (emphasis added). However, because the court here neither reduced nor suspended Moore’s sentence,
       subsection (g) is inapplicable in this case and the court did not need to meet the requirements of subsection
       (g) before declining to conduct a hearing. In addition, subsection (d)’s language “[i]f the court sets a hearing
       on a petition under this section” indicates that a hearing need not be granted, unless the court finds that
       reduction or suspension of the convicted person’s sentence is appropriate and the requirements of subsection
       (g) are not met. I.C. § 35-38-1-17(d).

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                            Page 13 of 22
       Enrolled Act 1006-2014.5 See Pub. L. No. 158-2013, § 396 (2013); Pub. L. No.

       168-2014, § 58 (2014).


[31]   The State argues that because Moore’s crimes were committed and his penalty

       was imposed before July 1, 2014, subsections (a)(1) and (a)(2) of the savings

       clause bar the revised statute from affecting his case. The State also argues that

       Moore’s petition was not a “proceeding begun” after July 1, 2014, but “a

       continuation of a ‘proceeding’ begun earlier, namely the criminal case filed

       under lower court cause number [FB-7118.]” (Appellee’s Br. at 15.)

       Therefore, the State argues that subsection (a)(3) of the savings clause also bars

       Moore’s petition.


[32]   Moore’s sentence modification proceeding began when he filed his petition on

       July 11, 2014, after the effective date of the statute. Moore’s petition therefore

       is not barred by subsection (a)(3) of the savings clause. As for subsections (a)(1)

       and (a)(2), the plain language prevents any section of the new code from

       “affecting” penalties incurred or crimes committed before July 1, 2014. I.C. §§

       1-1-5.5-21(a)(1)-(a)(2) (Supp. 2014). However, as discussed above, the revised

       statute regulates the procedure by which a person may request a sentence

       modification and the conditions under which the trial court may exercise its

       sentencing power. In this way, the revised statute certainly “affects” the




       5
           H.E.A. 1006-2014 was enacted in 2014. See Pub. L. No. 168-2014 (2014).



       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015      Page 14 of 22
       sentence modification process. But the revised statute does not “affect” a penalty

       imposed or crime committed simply because it changes the process by which a

       person seeks sentence modification. Subsections (a)(1) and (a)(2) of the savings

       clause thus do not bar persons convicted or sentenced prior to July 1, 2014 from

       filing petitions for sentence modification under the new statutory terms.


[33]   Furthermore, we think the language of subsections (a)(1) and (a)(2) of the

       savings clause evinces the legislature’s intent that those defendants who

       committed offenses prior to July 1, 2014 may not take advantage of any

       ameliorative effects the new classification and sentencing scheme may have on

       their crimes or sentences. Indeed, subsection (b) of the savings clause clearly

       states: “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 HEA 1006-2014.” I.C. § 1-1-5.5-21 (Supp. 2014).


[34]   An ameliorative amendment is one in which the maximum penalty for a crime

       is reduced. Palmer v. State, 679 N.E.2d 887, 892 n.4 (Ind. 1997) (“The test to

       determine whether the legislature has enacted an ameliorative statute, where

       they have not expressly so stated, is whether the maximum penalty under the

       new statute is lower than the maximum penalty under the old.”). Here,

       however, the revised statute explicitly provides that when modifying a

       convicted person’s sentence, the court may only impose a sentence “that the

       court was authorized to impose at the time of sentencing.” I.C. § 35-38-1-17(c)

       (2014). The revised statute thus has no ameliorative effect because it does not

       reduce the maximum penalty available and only permits the court to impose a

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015   Page 15 of 22
       sentence that was permissible at the time of sentencing. And because the

       revised statute has no ameliorative effect, the savings clause does not bar the

       revised statute’s application to petitions made by persons convicted or

       sentenced prior to July 1, 2014.6


[35]   Neither the plain language of the revised statute nor the savings clause prevents

       a person convicted or sentenced prior to July 1, 2014 from petitioning for

       sentence modification under the new terms of revised Indiana Code section 35-

       38-1-17, provided that all other terms of the statute are met. Accordingly, the

       trial court had the authority to entertain Moore’s petition for sentence

       modification without the consent of the prosecutor.



                                                Conclusion
[36]   Moore’s appeal is not moot. The trial court erred in finding that it did not have

       authority to entertain Moore’s petition for sentence modification on its merits.

       However, the trial court’s order also stated that the court would deny Moore’s

       petition due to the seriousness of his crimes and his criminal history; therefore,




       6
         Because the revised statute would have no ameliorative effect on Moore’s sentence, we find this
       Court’s recent discussion of the savings clause in Marley v. State, 17 N.E.3d 335 (Ind. Ct. App.
       2014), trans. denied, inapplicable here. Marley, under Indiana Appellate Rule 8, asked this Court to
       review the appropriateness of his sentence in light of the new criminal code. Marley thus sought to
       take advantage of the ameliorative effects of the new sentencing provisions, which is not an issue
       here.

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                Page 16 of 22
       we affirm the decision of the trial court to deny Moore’s petition for sentence

       modification.


[37]   Affirmed.


       Brown, J., concurs.


       Robb, J., dissents in part and concurs in part with opinion.




       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015   Page 17 of 22
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Derek L. Moore,                                            April 22, 2015

       Appellant,                                                 Court of Appeals Case No.
                                                                  49A05-1408-CR-398
               v.                                                 Appeal from the Marion Superior
                                                                  Court
                                                                  The Honorable Mark D. Stoner
       State of Indiana,                                          Cause No. 49G06-0410-FB-187118
       Appellee




       Robb, Judge, dissenting in part and concurring in result in part

[38]   I agree with the trial court that the 2014 amendments to Indiana Code section

       35-38-1-17 are not retroactive and that, absent the prosecutor’s approval, the

       trial court had no authority to entertain Moore’s petition for sentence

       modification. Therefore, I respectfully dissent from that part of the majority’s

       decision holding otherwise.


[39]   I do not agree that Willis is applicable and determinative here. A trial court

       generally has no authority over a defendant after sentencing. Harper v. State, 8

       N.E.3d 694, 696 (Ind. 2014). Through Indiana Code section 35-38-1-17, the

       legislature has created an exception to that general rule and granted trial courts

       authority in certain circumstances to modify sentences. State v. Porter, 729

       N.E.2d 591, 593 n.1 (Ind. Ct. App. 2000). In Crocker, our supreme court

       addressed the limited authority granted to the trial courts under this statute


       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015                Page 18 of 22
       when it considered an amendment that enlarged the trial court’s authority from

       power to suspend the remainder of a sentence to the power to suspend or reduce

       a sentence. The defendants had been sentenced prior to the amendment, but

       following the amendment, the trial court reduced each of their sentences. The

       State appealed, and the court held the amendment did not apply to the

       defendants because they had been sentenced prior to its enactment and there

       was no retroactivity provision in the amended statute. 270 Ind. 377, 378. 385

       N.E.2d 1143, 1144 (1979). Therefore, the only authority the trial court had

       with respect to their sentences was that granted by the statute in effect at the

       time they were sentenced—the power to suspend a sentence. Id. As the Willis

       court noted, the amendment in Crocker was a substantive change “because the

       new statute gave the sentencing court new powers, that is the power to reduce as well

       as to suspend the remainder of the sentence.” 567 N.E.2d 1170, 1172 (Ind. Ct.

       App. 1991) (emphasis added).


[40]   In contrast, the amendment to the sentence modification statute considered in

       Willis was to enlarge the time in which the defendant could petition for

       modification. The court noted this amendment “did not make any changes in the

       sentencing court’s power over the sentence, but merely permitted . . . the sentencing

       court to consider sentence modification of the same kind more than 180 days

       after sentencing.” Id. (emphasis added). Thus, the court held the amendment

       was procedural, not substantive, and the defendant was eligible to petition for

       modification under the new timeline. Id. Notably, the Willis court did not hold




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       the sentence modification statute itself was procedural, just that the amendment

       under consideration made a procedural change.


[41]   More recently, Morris v. State, 936 N.E.2d 354 (Ind. Ct. App. 2010), discussed

       both Crocker and Willis in deciding whether an amendment to the modification

       statute allowing the trial court, after 365 days, to move a defendant from the

       Department of Correction to community corrections without prosecutorial

       consent should be applied retroactively to a defendant sentenced before it was

       enacted. Noting that the amendment considered in Willis “simply [gave] a

       convicted person additional time to file a petition,” the court held that the

       amendment it was considering was more akin to that in Crocker because “it

       [gave] the trial court authority it did not previously have . . . .” Id. at 357.

       Therefore, the amendment was not retroactive and did not give the trial court

       authority to modify the defendant’s sentence which was imposed prior to its

       enactment.


[42]   I believe the 2014 amendment is substantive like the amendments considered in

       Crocker and Morris. It grants a trial court authority it did not previously have—

       the authority to unilaterally modify a sentence at any time. And I do not

       believe that this result conflicts with Beanblossom v. State, 637 N.E.2d 1345 (Ind.

       Ct. App. 1994), trans. denied.7 That case made it clear that the trial court has no

       inherent authority to modify a sentence: prior to the enactment of the sentence



       7
         I note that although Beanblossom discussed whether the requirement of prosecutorial consent violated the
       separation of powers, the issue had not been preserved for appeal. Id. at 1347.

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       modification statute, “a trial judge had no authority over a defendant after the

       judge had pronounced sentence, and the court had no authority to change the

       sentence of the defendant after the defendant had started to serve his time.” Id.

       at 1347-48. As quoted by the majority, the case also stated that “the statute does

       not take judicial power away from the trial court and give it to the prosecuting

       attorney.” Slip op. at ¶ 25 (quoting Beanblossom, 637 N.E.2d at 1348).

       However, that is because the trial court only had the judicial power granted to it

       by the statute in the first place, that is, the power to decide whether to modify a

       sentence after 365 days if the prosecutor had consented to the modification.

       Following this most recent amendment, the trial court has the power to decide

       whether to modify a sentence unilaterally, a substantive change in the statute.


[43]   As the majority notes, the “overarching principle in statutory construction is to

       first decide whether the legislature has spoken clearly and unambiguously on

       the point in question.” Slip op. at ¶ 11. As the majority notes, no provision in

       Indiana Code section 35-38-1-17 limits its application to persons convicted after

       its effective date; however, there is also no provision for it be applied to persons

       convicted before its effective date. The general rule is that “[s]tatutes are to be

       given prospective effect only,” State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005),

       and because this is not a remedial or procedural statute and the legislature has

       not included a specific retroactivity provision, the general rule applies.


[44]   Moreover, even for procedural amendments, “retroactive application is the

       exception, and such laws are normally to be applied prospectively absent strong

       and compelling reasons.” Hurst v. State, 890 N.E.2d 88, 94 (Ind. Ct. App.

       Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015      Page 21 of 22
       2008), trans. denied. It is important to note that section 35-38-1-17 was not

       amended in isolation. The revised statute was amended as part of a broad

       overhaul of the entire criminal code, an overhaul which included a savings

       clause, Ind. Code § 1-1-5.5-21, through which the legislature has clearly and

       unambiguously made it clear that it did not intend for the new criminal code to

       have any effect on proceedings for offenses committed before July 1, 2014.

       Marley v. State, 17 N.E.2d 335, 340 (Ind. Ct. App. 2014). There are no strong

       and compelling reasons to retroactively apply this one statute among the dozens

       that were simultaneously amended in the face of the legislature’s clear direction

       expressed through the savings clause regardless of the date Moore filed his

       petition. Moore’s crimes were committed and his penalty was incurred before

       the effective date of the new statute. Thus the savings clause rules out applying

       the revised statute to his petition for modification.


[45]   I would hold that Moore’s petition for modification was subject to the terms of

       the modification statute in effect at the time he was sentenced. According to

       those terms, prosecutorial consent was required, it was not given, and the trial

       court properly declined to entertain Moore’s petition.


[46]   Though we would do so for different reasons, I concur with the majority’s result

       affirming the trial court’s denial of Moore’s petition for sentence modification.




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