MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                           Sep 05 2017, 6:29 am
the defense of res judicata, collateral                                    CLERK
estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Nathan D. Russell                                        Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathan D. Russell,                                       September 5, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1704-CR-775
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1201-FA-3252



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017        Page 1 of 5
                                            Case Summary
[1]   Nathan D. Russell (“Russell”) appeals the dismissal of his sentence

      modification petition based upon a lack of statutory compliance. Russell

      presents a sole issue for review: whether the trial court misinterpreted the

      statute governing sentence reductions, Indiana Code Section 35-38-1-17, to

      require a prosecutor’s consent.1 We affirm.



                                   Facts and Procedural History
[2]   On July 9, 2012, Russell and the State executed a plea agreement whereby

      Russell agreed to plead guilty to Dealing in Cocaine or a Narcotic Drug, as a

      Class A felony,2 and Possession of a Firearm by a Serious Violent Felon, as a

      Class B felony.3 The trial court entered judgments of conviction and imposed

      an aggregate sentence of thirty years, with ten years suspended to probation.


[3]   On March 15, 2017, Russell filed a motion for sentence modification, which

      was summarily dismissed by the trial court. This appeal ensued.




      1
       When required, prosecutorial consent to a sentence modification is a procedural condition precedent to the
      court’s exercise of authority. Woodford v. State, 58 N.E.3d 282, 283 n. 4 (Ind. Ct. App. 2016).
      2
          Ind. Code § 35-48-4-1.
      3
          I.C. § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017          Page 2 of 5
                                 Discussion and Decision
[4]   The trial court dismissed Russell’s petition with the following language:

              The correspondence dated 3-17-17 [Petition for Modification] has
              been received by the Court but not reviewed as it does not
              comply with the Indiana Rules of Trial Procedure.


      (App. Vol. II, pg. 11.)


[5]   It appears that the trial court believed that it lacked authority to entertain

      Russell’s petition. No hearing was conducted and the trial court did not state

      more specific reasons for the disposition of Russell’s petition. Russell asserts,

      and the State agrees, that the trial court interpreted Indiana Code Section 35-38-

      1-17 to require prosecutorial consent to Russell’s petition.


[6]   To the extent that an issue of statutory interpretation is raised, we observe that

      the primary goal in statutory interpretation is to ascertain and give effect to the

      legislature’s intent. State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). The

      language of the statute is the best evidence of that intent. Id.


[7]   Russell argues that, in amending Indiana Code Section 35-38-1-17, “our

      legislature eliminated the need for the Prosecuting Attorney’s approval.”

      Appellant’s Brief at 3. “Indiana’s sentence modification statute was

      substantially amended in 2014 as part of a broad overhaul of the criminal

      code.” Woodford v. State, 58 N.E.3d 282, 284-85 (Ind. Ct. App. 2016). This

      Court had previously held that the 2014 statute did not apply to offenders

      convicted or sentenced before the statute’s effective date. Id. at 285 (citing
      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017   Page 3 of 5
      Swallows v. State, 31 N.E.3d 544 (Ind. Ct. App. 2015), trans. denied; Hobbs v.

      State, 26 N.E.3d 983 (Ind. Ct. App. 2015)). However, in 2015, our General

      Assembly clarified that the sentence modification statute “applies to a person

      who: (1) commits an offense; or (2) is sentenced before July 1, 2014.” I.C. § 35-

      38-1-17(a) (Supp. 2015). As such, the 2015 amendment was intended to cure a

      defect or mischief that existed in a prior statute and was remedial. Woodford, 58

      N.E.3d at 285.


[8]   The sentence modification statute now provides in relevant part:

              (e) At any time after:


              (1) a convicted person begins serving the person’s sentence; and


              (2) the court obtains a report from the department of correction
              concerning the convicted person’s conduct while imprisoned;


              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(e). The 2015 amendment also permits a convicted person

      who is not a violent criminal to file two petitions for sentence modification

      without first obtaining the consent of the prosecuting attorney. I.C. § 35-38-1-

      17(j)(2).


[9]   Under this statutory scheme, a person who is classified as a violent criminal is

      not relieved of the obligation of obtaining prosecutorial consent for petitions


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017   Page 4 of 5
       filed more than one year after sentencing.4 Subsection (d)(14) defines “violent

       criminal” for purposes of Indiana Code Section 35-38-1-17 to include “a person

       convicted of … Unlawful possession of a firearm by a serious violent felon (IC

       35-47-4-5).” Russell is a violent criminal, having been convicted of Possession

       of a Firearm by a Serious Violent Felon. Lacking the requisite consent, Russell

       did not file a petition upon which relief could be granted. When relief cannot

       be afforded under the statute, dismissal is appropriate. See Vazquez v. State, 37

       N.E.3d 962, 964 (Ind. Ct. App. 2015).


[10]   Affirmed.


       Baker, J., and Altice, J., concur.




       4
           One petition may be filed within 365 days without prosecutorial consent.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017   Page 5 of 5
