                                                                May 12 2015, 10:25 am




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

                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Floyd Carr,                                              May 12, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1409-CR-456
        v.                                               Appeal from the Lake Superior
                                                         Court; The Honorable Michael J.
                                                         Lambert, Judge Pro Tempore;
State of Indiana,                                        45G02-9909-CF-160
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Opinion 45A04-1409-CR-456| May 12, 2015                   Page 1 of 4
[1]   Floyd Carr appeals the court’s denial of his motion to modify sentence. The

      court did not abuse its discretion as it had no authority to modify Carr’s

      sentence without approval of the prosecutor.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On July 21, 2000, the court imposed a fifty-five-year sentence for Carr’s

      conviction of murder, ordering him to serve forty-five years incarcerated and

      ten years on probation. On July 10, 2014, Carr moved for the court to modify

      his sentence, specifically to reduce or suspend his remaining sentence. That

      same day, the court denied Carr’s motion in an order that provided in pertinent

      part, that the court “denies said motions since more than three hundred sixty-

      five (365) days have elapsed since you began serving your sentence, and your

      sentence was imposed on July 21, 2000, the Court may not modify your

      sentence unless you have the approval of the Prosecuting Attorney.”

      (Appellant’s App. at 1.)


                                     Discussion and Decision
[4]   Carr asserts the trial court erred by denying his petition for sentence

      modification filed under Indiana Code Section 35-38-1-17 (2014). We review a

      trial court’s decision as to a motion to modify only for an abuse of discretion.

      Hobbs v. State, 26 N.E.3d 983, 985 (Ind. Ct. App. 2015). An abuse of discretion

      has occurred when the court’s decision was “clearly against the logic and effect

      of the facts and circumstances before the court.” Id.

      Court of Appeals of Indiana | Opinion 45A04-1409-CR-456| May 12, 2015        Page 2 of 4
[5]   Carr claims the court abused its discretion by insisting approval of the

      prosecutor was required for sentence modification. In support thereof, Carr

      cites the version of the statute controlling sentence modification that became

      effective July 1, 2014:

              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).


[6]   As Carr notes, that provision does not necessitate prosecutorial approval, and

      Carr waited until after July 1, 2014, to file his motion for modification because

      the relevant portion of the prior version of the statute did require approval from

      the prosecutor. See Ind. Code § 35-38-1-17(b) (“(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.”) (2012) (emphasis added).


[7]   However, contrary to Carr’s assertion, the sentence modification statute that

      became effective in 2014 does not apply to him. That modification occurred

      pursuant to Section 396 of Public Law 158-2013 and Section 58 of Public Law

      168-2014. See Ind. Code Ann. § 35-38-1-17 (2014) (West). Pursuant to another

      statute that also became effective on July 1, 2014:

              (a) A SECTION of P.L.158-2013 or P.L.168-2014 does not affect:

      Court of Appeals of Indiana | Opinion 45A04-1409-CR-456| May 12, 2015             Page 3 of 4
              (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 and 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 (2014). Thus, as Carr’s crime was committed in 1999,

      well before the effective date of the new criminal code, the new statute does not

      apply to him. See id.; see also Hobbs, 26 N.E.3d at 985 (“there is no question that

      the current version of Indiana Code Section 35-38-1-17 does not apply”).


[8]   Because the new version of the sentence modification statute does not apply to

      Carr, we cannot find an abuse of discretion in the trial court’s denial of Carr’s

      motion to modify. Accordingly, we affirm.


[9]   Affirmed.


      Robb, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Opinion 45A04-1409-CR-456| May 12, 2015           Page 4 of 4
