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                       Aug 21 2017, 5:27 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Silven Vires                                             Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Silven Vires,                                            August 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A01-1702-CR-367
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard W.
Appellee-Plaintiff.                                      Poynter, Judge
                                                         Trial Court Cause No.
                                                         36C01-1403-FA-4



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1702-CR-367 | August 21, 2017      Page 1 of 6
                                       Statement of the Case
[1]   Silvan Vires appeals the trial court’s denial of his motion for modification of

      placement. Vires raises one issue for review, which we restate as whether the

      trial court erred when it denied his motion for modification of placement. We

      hold that Vires appeals from an order that the trial court lacked jurisdiction to

      enter. Accordingly, we dismiss.


                                 Facts and Procedural History
[2]   On March 4, 2014, the State charged Vires with one count of dealing in

      methamphetamine, as a Class A felony; one count of possession of

      methamphetamine, as a Class C felony; one count of possession of marijuana,

      as a Class A misdemeanor; and one count of possession of paraphernalia, as a

      Class A misdemeanor. On December 11, Vires pleaded guilty to one count of

      dealing in methamphetamine, as a Class A felony, pursuant to a written plea

      agreement. In exchange, the State agreed to dismiss the remaining charges.

      The plea agreement also included a recommended sentence of twenty years, but

      otherwise left sentencing to the discretion of the trial court. On February 10,

      2015, the trial court entered judgment of conviction and sentenced Vires to

      twenty years in the Indiana Department of Correction.


[3]   On July 25, 2016, after Vires had successfully completed a purposeful

      incarceration program, he filed a motion for modification of sentence. In his

      motion, Vires stated that, “if an offender successfully completes the

      [Therapeutic Community] program, the judge may choose to modify the


      Court of Appeals of Indiana | Memorandum Decision 36A01-1702-CR-367 | August 21, 2017   Page 2 of 6
      offender’s sentence and return the offender to the community to receive

      treatment through existing community programs.” Motion for Modification of

      Sentence due to Completion of the Purposeful Incarceration Program at 3.1 On

      July 27, the trial court denied his motion. In its order denying the motion, the

      trial court stated that it could not modify the sentence without the State’s

      consent. On August 26, Vires, proceeding pro se, filed a notice of appeal from

      that judgment. The Chronological Case Summary reflects that the trial court

      clerk entered the Notice of Completion of Clerk’s Record on September 20.

      Appellant’s App. at 9. Thereafter, on February 24, 2017, we dismissed Vires’

      appeal with prejudice because he had not timely filed an Appellant’s Brief.


[4]   Meanwhile, after the completion of the clerk’s record in his appeal but before

      we dismissed, on January 27 Vires filed with the trial court a motion for

      modification of placement. In that motion, Vires stated that he had

      “successfully completed the Therapeutic Community in July of 2016,” and he

      again requested that the trial court “consider a modification of the placement of

      [Vires’] executed sentence.” Motion for Modification of Placement at 1-2.

      The trial court denied that motion on February 6. Vires now appeals the court’s

      February 6 judgment.




      1
       Vires excluded this and other relevant material from his appendix. But we take judicial notice of these, and
      we have obtained copies from Odyssey.

      Court of Appeals of Indiana | Memorandum Decision 36A01-1702-CR-367 | August 21, 2017             Page 3 of 6
                                     Discussion and Decision
[5]   Although not raised by either party, we conclude that the trial court did not

      have jurisdiction to rule on the motion from which Vires now appeals. “Subject

      matter jurisdiction cannot be waived, and courts are required to consider the

      issue sua sponte.” Watkins v. State, 869 N.E.2d 497, 499 (Ind. Ct. App. 2007).


[6]   As set forth above, Vires filed his motion for modification of sentence on

      January 27, 2017. He filed that motion after the Notice of Completion of the

      Clerk’s Record had been noted in the CCS but before this court dismissed the

      appeal. In Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct. App. 2008), we

      reiterated that,

              [p]ursuant to Indiana Appellate Rule 8, “[t]he Court on Appeal
              acquires jurisdiction on the date the trial court clerk issues its
              Notice of Completion of Clerk’s Record.” See also Clark v. State,
              727 N.E.2d 18, 20 (Ind. Ct. App. 2000) (once an appeal is
              perfected, trial court loses subject matter jurisdiction over the
              case), trans. denied. A judgment made when the court lacks
              subject matter jurisdiction is void. Id. The policy underlying the
              rule is to facilitate the efficient presentation and disposition of the
              appeal and to prevent the simultaneous review of a judgment by
              both a trial and appellate court. Id. at 21.


              . . . However, there are exceptions to this general rule which
              permit the trial court to retain jurisdiction notwithstanding an
              appeal. Id. “For example, a trial court may retain jurisdiction to
              reassess costs, correct the record, enforce a judgment, continue
              with a trial during an interlocutory appeal concerning venue, or
              preside over matters which are independent of and do not interfere with
              the subject matter of the appeal.” Id.; see also Bradley v. State, 649
              N.E.2d 100, 106 (Ind. 1995) (holding that trial court retained

      Court of Appeals of Indiana | Memorandum Decision 36A01-1702-CR-367 | August 21, 2017   Page 4 of 6
              jurisdiction to proceed with criminal trial during pending appeal
              of denial of bail, because the bail appeal was entirely independent
              of the trial and would not intermeddle with the subject matter of
              the appeal); Clark, 727 N .E.2d at 21 (holding that trial court
              retained jurisdiction to proceed with probation revocation
              hearing during pendency of direct appeal from drug convictions,
              because appeal was entirely independent of revocation
              proceeding).


      (Emphasis added.)


[7]   Here, the ruling that Vires now seeks to appeal was a denial of his motion to

      modify placement. But at the time Vires filed his motion, he had a pending

      appeal that challenged the trial court’s denial of his motion to modify sentence.

      And the pending appeal had been perfected; we acquired jurisdiction over the

      issues raised in that appeal on September 20, 2016, when the Notice of

      Completion of Clerk’s Record had been noted in the CCS. See Ind. Appellate

      Rule 8. Accordingly, as a general matter the trial court lacked subject matter

      jurisdiction over any further proceedings while that appeal was pending.

      Jernigan, 894 N.E.2d at 1046.


[8]   Indeed, Vires’ ensuing motion to modify placement was based on the same

      grounds and sought the same relief as the original motion to modify sentence,

      namely, in the motion to modify sentence, Vires requested that the trial court

      return him to the community based on his successful completion of the

      Therapeutic Community (“TC”) program. Likewise, in his motion to modify

      placement, he requested that the trial court modify his placement based on his

      successful completion of the TC program. Thus, in both motions Vires sought a

      Court of Appeals of Indiana | Memorandum Decision 36A01-1702-CR-367 | August 21, 2017   Page 5 of 6
       modification of his placement based on his successful completion of the TC

       program. Had the trial court granted Vires’ second request, it would have

       rendered moot Vires’ pending appeal from the denial of his first request. But

       the trial court does not retain jurisdiction over matters that interfere with the

       subject matter of a perfected appeal. Id.


[9]    We therefore conclude that the trial court was without jurisdiction to entertain

       any motion that sought to modify Vires’ sentence after the trial court clerk

       issued its Notice of Completion of Clerk’s Record in the pending appeal. As

       such, the trial court’s denial of Vires’ motion to modify placement entered while

       this court had jurisdiction over Vires’ appeal is void. See Clark, 727 N.E.2d at

       20. Because Vires’ current appeal is from a void order, we hereby set aside that

       order and dismiss the current appeal. See, e.g., Jernigan, 894 N.E.2d at 1047.


[10]   Dismissed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A01-1702-CR-367 | August 21, 2017   Page 6 of 6
