MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Dec 16 2019, 8:53 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
James Ketchum                                           Curtis T. Hill, Jr.
Michigan City, Indiana                                  Attorney General of Indiana
                                                        Benjamin J. Shoptaw
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Ketchum,                                          December 16, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1341
        v.                                              Appeal from the Rush Circuit
                                                        Court
State of Indiana,                                       The Honorable David Northam,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause Nos.
                                                        70C01-1508-F6-469
                                                        70C01-1510-F3-617



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1341 | December 16, 2019             Page 1 of 6
                                Case Summary and Issue
[1]   In 2016, James Ketchum pleaded guilty to intimidation, a Level 6 felony, and

      the trial court sentenced him to serve two years in the Indiana Department of

      Correction (“DOC”). Following an incident in which Ketchum struck another

      person while he was incarcerated, the State filed new charges against him under

      a separate cause number. Ketchum pleaded guilty to aggravated battery, a

      Level 3 felony, and the trial court sentenced him to serve twelve years with six

      years suspended. The trial court ordered Ketchum’s sentence to be served

      consecutively to his sentence for his intimidation conviction. In 2019, Ketchum

      filed a motion to modify his sentence, in which he requested the trial court

      order his sentences to run concurrently. The trial court denied his motion.

      Ketchum appeals and raises one issue for our review which we restate as

      whether the trial court erred in denying Ketchum’s motion to modify his

      sentence. Concluding the trial court did not err, we affirm.



                            Facts and Procedural History
[2]   On August 22, 2015, Ketchum communicated a threat to Todd Click, a law

      enforcement officer, with the intent to place Officer Click in fear of retaliation

      for a prior lawful act. Ketchum was arrested the same day and posted bond two

      days later. The State charged Ketchum with intimidation, a Level 6 felony;

      criminal trespass, a Class A misdemeanor; resisting law enforcement, a Class A

      misdemeanor; and disorderly conduct, a Class B misdemeanor, under cause

      number 70C01-1508-F6-469. Ketchum’s bond was revoked due to another

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1341 | December 16, 2019   Page 2 of 6
      charge and he was rearrested on September 15, 2015.1 Ketchum remained in

      jail until he pleaded guilty to intimidation, a Level 6 felony, on May 20, 2016,

      and the State dismissed the remaining charges. The trial court sentenced

      Ketchum to serve two years in the DOC.2


[3]   On October 21, 2015, while incarcerated in the Rush County Jail, Ketchum

      struck another person, fracturing the victim’s skull. The State charged Ketchum

      with aggravated battery causing permanent disfigurement, a Level 3 felony, and

      battery resulting in serious bodily injury, a Level 5 felony, under cause number

      70C01-1510-F3-617. On September 6, 2016, Ketchum pleaded guilty to

      aggravated battery, a Level 3 felony. At the time of the sentencing hearing,

      Ketchum was serving his sentence for the intimidation conviction, which would

      conclude on September 10. At the hearing, the State asserted that Ketchum’s

      sentence for the battery conviction had to be served consecutive to the

      intimidation sentence that he was currently serving. Defense counsel

      responded, “We’re in agreement . . . with regard to the . . . sentences have to be

      consecutive because of the sequence in which they were committed[.]”

      [September 6, 2016] Transcript, Volume 2 at 8. The trial court sentenced




      1
        Although the record indicates that Ketchum’s bond was revoked in this matter due to “another charge”
      there is limited information in the record detailing the facts and circumstances surrounding the revocation of
      Ketchum’s bond. [May 20, 2016] Transcript at 9.
      2
          Ketchum was given credit time for August 22-24, 2015 and September 15, 2015 through May 20, 2016.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1341 | December 16, 2019                  Page 3 of 6
      Ketchum to twelve years in the DOC with six years suspended and ordered his

      sentence to run consecutively to his intimidation sentence.3


[4]   On March 19, 2019, Ketchum filed a Petition to Run Sentences Imposed

      Concurrent and the State filed an objection. See Appellant Appendix, Volume 2

      at 9, 49-51. The trial court denied Ketchum’s petition on May 16. Ketchum

      now appeals.4



                                   Discussion and Decision
                                  Motion to Modify Sentence
[5]   Ketchum’s petition is effectively a motion to modify his sentence and we review

      it as such. Generally, 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 it or

      when the court misinterprets the law. Johnson v. State, 36 N.E.3d 1130, 1133

      (Ind. Ct. App. 2015), trans. denied. However, “[w]here the issue presented on



      3
       The trial court ordered his sentence to begin on September 11, 2016, after he had executed his sentence for
      his intimidation conviction.
      4
        In his brief, Ketchum also appears to challenge the alleged denial of his Motion to Correct Sentence, in
      which he asked the trial court to apply 322 days of “pre-trial time” to his sentence for his aggravated battery
      conviction. Appellant App., Vol. 2 at 43. He filed this motion on February 22, 2019 and then filed his
      motion to modify sentence on March 19. And on April 25, 2019, Ketchum filed a notice with the trial court
      addressing its failure to rule on his Motion to Correct Sentence. The trial court subsequently denied his
      motion to modify sentence and never ruled on his motion to correct sentence. Because the trial court did not
      rule on Ketchum’s motion to correct sentence, there is no appealable order for us to review. Accordingly, we
      decline to address this issue.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1341 | December 16, 2019                   Page 4 of 6
      appeal is a pure question of law, we review the matter de novo.” State v. Harper,

      8 N.E.3d 694, 696 (Ind. 2014) (quoting State v. Moss-Dwyer, 686 N.E.2d 109,

      110 (Ind. 1997)).


[6]   After issuing a final judgment, a trial court retains only such continuing

      jurisdiction as permitted by the judgment or granted to the court by statute or

      rule. State v. Porter, 729 N.E.2d 591, 592 (Ind. Ct. App. 2000). Indiana Code

      section 35-38-1-17 authorizes a trial court to reduce or suspend a sentence, in

      certain circumstances, after a defendant has begun serving the sentence. Barber

      v. State, 122 N.E.3d 809, 810 (Ind. 2019). Ketchum was convicted of

      aggravated battery and is therefore a “violent criminal.” Ind. Code § 35-38-1-

      17(d)(6). As such, the following subsection applies:


              A convicted person who is a violent criminal may, not later than
              three hundred sixty-five (365) days from the date of sentencing,
              file one (1) petition for sentence modification under this section
              without the consent of the prosecuting attorney. After the elapse
              of the [365] day period, a violent criminal may not file a petition
              for sentence modification without the consent of the prosecuting
              attorney.


      Ind. Code § 35-38-1-17(k) (emphasis added).


[7]   Because Ketchum filed his petition more than 365 days after he was sentenced,

      he needed the prosecuting attorney’s consent to authorize the trial court to

      modify his sentence. Ketchum clearly did not have the prosecutor’s consent as

      the State expressly opposed his petition. Without this consent, the trial court

      lacked the authority to modify Ketchum’s sentence and therefore, it properly

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1341 | December 16, 2019   Page 5 of 6
      denied his motion. See id.; see also Manley v. State, 868 N.E.2d 1175, 1179 (Ind.

      Ct. App. 2007), trans. denied. We find no error.



                                             Conclusion
[8]   Because Ketchum did not have the prosecuting attorney’s consent to file his

      request for modification, the trial court properly denied Ketchum’s motion to

      modify his sentence. Accordingly, the judgment of the trial court is affirmed.


[9]   Affirmed.


      Mathias, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1341 | December 16, 2019   Page 6 of 6
