      ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
      Douglas R. Long                                            Gregory F. Zoeller
      Anderson, Indiana                                          Attorney General of Indiana
                                                                 Jesse R. Drum
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana         Jun 25 2015, 10:20 am




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Dennis Johnson,                                            June 25, 2015
      Raymond Johnson,                                           Court of Appeals Case No.
                                                                 48A05-1408-CR-390
      Appellants-Defendants,

              v.                                                 Appeal from the Madison Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Thomas Newman,
                                                                 Jr., Judge
      Appellee-Plaintiff,
                                                                 Cause No. 48D03-9609-CF-309
                                                                 Cause No. 48D03-9609-CF-314




      Robb, Judge.



                                 Case Summary and Issue
[1]   For their participation in a 1996 robbery gone awry, Dennis Johnson and

      Raymond Johnson were each convicted in 1997 of felony murder and carrying

      a handgun without a license and sentenced to serve an aggregate term of fifty-

      five years. In 2013, Dennis and Raymond filed petitions to modify their

      Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                     Page 1 of 35
      respective sentences. Following a hearing in August of 2014, the trial court

      denied both petitions because the prosecutor did not consent to modification.

      In this consolidated appeal,1 the Johnsons contend the trial court erred in

      requiring the prosecutor’s consent because prior to the hearing on their

      petitions, the statute allowing sentence modifications was amended to remove

      that requirement. Concluding the trial court did not err in applying the prior

      version of the statute which required prosecutorial consent and in denying the

      petitions to modify on that basis, we affirm.



                              Facts and Procedural History
[2]   Although the Johnsons’ cases have not run identical courses, the salient events

      are the same: the Johnsons participated in a crime in September 1996 during

      which Norval Peters was shot and killed. Each pleaded guilty to the charges

      against him and was sentenced to fifty-five years imprisonment. Raymond was

      sentenced on August 11, 1997, and Dennis was sentenced on September 29,

      1997.


[3]   On direct appeal, Raymond’s sentence was affirmed. R. Johnson v. State, No.

      48A02-9711-CR-791 (Ind. Ct. App., Feb. 27, 1998). Raymond’s subsequent




      1
       The case was consolidated by order of this court dated October 15, 2014, at the joint request of the
      appellants.

      Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                           Page 2 of 35
      petition for post-conviction relief was denied. He sought modification of his

      sentence in 2007 and 2012, but was denied both times.


[4]   Dennis did not pursue a direct appeal, but he filed a petition for post-conviction

      relief that was denied, and this court affirmed the denial on appeal. D. Johnson

      v. State, No. 48A04-1015-PC-198 (Ind. Ct. App., Apr. 29, 2002). He sought

      modification of his sentence in 2007 and 2008, but both petitions were denied.


[5]   On December 19, 2013, Raymond and Dennis each filed a Request for Re-

      Entry Court Evaluation, which the trial court treated as a petition for sentence

      modification. The trial court initially denied the requests because the State

      objected, but then ordered a re-entry court evaluation and set the requests for a

      joint hearing. The hearing was originally scheduled for June 2014 but was

      ultimately not held until August 11, 2014. At the hearing, the Johnsons argued

      that they had shown by their conduct and accomplishments while incarcerated

      that they should be transitioned into a placement that would re-integrate them

      into society for the final years of their sentences. The Johnsons further noted:

              [T]he statute on modification changed July 1st and that’s why we set
              this hearing after July 1st . . . . So I guess the question is, can you
              modify them [without the State’s consent], the answer seems to be yes,
              and the second question is will you . . . .
      Transcript at 21. The State responded that the version of the modification

      statute in effect at the time the Johnsons were sentenced should apply to their

      petitions and indicated that it did not consent to modification; the State also

      noted that “even if you determine that you can modify [without prosecutorial

      consent], my position is that you should not . . . .” Id. at 24.

      Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015       Page 3 of 35
[6]   The trial court issued identical orders denying each request for modification:

              . . . the Court finds that the State of Indiana, despite the provisions of
              the new Indiana Criminal Code, retains the veto power over sentence
              modification requests regarding sentences issued before the new
              Indiana Criminal Code became effective.
              [The] Court finds that since the State of Indiana invoked its veto
              regarding this Sentence Modification request and because the sentence
              in this matter was levied before the new Indiana Criminal Code
              became effective, the request for sentence modification is denied.
      Appellants’ Appendix at 320 (with respect to Dennis) and 609 (with respect to

      Raymond). The Johnsons now appeal the trial court’s order denying the

      requests to modify their sentences.



                                  Discussion and Decision
                                      I. Standard of Review
[7]   The trial court in these cases concluded that the pre-2014 version of the

      modification statute continued to apply to sentences imposed prior to July 1,

      2014. Because the Johnsons were sentenced in 1997, the trial court found that

      the consent of the prosecuting attorney was required before it could consider

      modifying their sentences. The prosecuting attorney did not consent, and the

      trial court denied the petitions.


[8]   The Johnsons contend that the 2014 amendment to the modification statute is

      remedial or procedural and should be applied retroactively to their petitions for

      modification despite the savings clause. They therefore assert that the trial

      court may, in its discretion alone, grant their petitions for modification, and

      Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015              Page 4 of 35
       they request that we remand their cases to the trial court for consideration on

       the merits.


[9]    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 the court or when the

       court misinterprets the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).

       Here, the parties differ as to the interpretation of certain statutes, which is a

       question of law. “Where the issue presented on appeal is a pure question of

       law, we review the matter de novo.” State v. Moss–Dwyer, 686 N.E.2d 109, 110

       (Ind. 1997).


                          II. Applicable Version of the Statute
[10]   A trial court generally has no authority over a defendant after sentencing. State

       v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). A notable exception is Indiana Code

       section 35-38-1-17, which gives trial courts authority under certain

       circumstances to modify a sentence after it is imposed. Id. From 1991 until

       June 30, 2014, the relevant section of the sentence modification statute read:

               (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. . . .




       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                Page 5 of 35
       Ind. Code § 35-38-1-17(b) (2012) (emphasis added).2


[11]   Effective July 1, 2014, the criminal code was subject to a comprehensive

       revision pursuant to P.L. 158-2013 and P.L. 168-2014. The pertinent section of

       the sentence modification statute was amended to read:

                (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 legislature also included a specific

       savings clause as part of the 2014 revision of the criminal code, stating that:

                (a) A SECTION of P.L. 158-2013 or P.L. 168-2014 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 P.L.
                168-2014. Those penalties, crimes, and proceedings continue and shall
                be imposed or 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 Viceroy v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any
                SECTION of P.L. 158-2013 or P.L. 168-2014.




       2
         The statute was amended several times between 1991 and 2014, most significantly in 2001 when the
       legislature amended subsection (b) to add a second sentence providing that “if in a sentencing hearing for a
       convicted person conducted after June 30, 2001, the court could have placed the convicted person in a
       community corrections program as an alternative to commitment to the department of correction, the court
       may modify the convicted person’s sentence under this section without the approval of the prosecuting
       attorney to place the convicted person in a community corrections program under IC 35-38-2-6.” The first
       sentence of subsection (b), however, remained substantively the same until the 2014 amendment, and it is
       this sentence alone that we are concerned with in this appeal.

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                           Page 6 of 35
       Ind. Code § 1-1-5.5-21.The general rule in Indiana is that “[s]tatutes are to be

       given prospective effect only, unless the legislature unequivocally and

       unambiguously intended retrospective effect as well.” State v. Pelley, 828

       N.E.2d 915, 919 (Ind. 2005). An exception to this general rule exists for

       remedial or procedural statutes. Martin v. State, 774 N.E.2d 43, 44 (Ind. 2002).

       Although statutes and rules that are procedural or remedial may be applied

       retroactively, they are not required to be. Pelley, 828 N.E.2d at 919. Even for

       procedural or remedial statutes, “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. 2008)

       (quotation omitted), trans. denied.


                         A. Was the 2014 Amendment Remedial?
[12]   Remedial statutes are those that are intended to cure a defect or mischief in a

       prior statute. Martin, 774 N.E.2d at 44; see also W.H. Dreves, Inc. v. Osolo Sch.

       Twp. of Elkhart Cnty., 217 Ind. 388, 394, 28 N.E.2d 252, 254 (1940) (“It is

       recognized that the legislature may, by a subsequent statute, correct any

       omission or irregularity in a proceeding which it might have dispensed with by

       a prior statute.”). “If a statute is remedial, it should be liberally construed to

       advance the remedy for the mischief for which it was enacted.” Brown v. State,

       947 N.E.2d 486, 490 (Ind. Ct. App. 2011), trans. denied; see also State v. Denny, 67

       Ind. 148, 155 (1879) (“There are three points to be considered in the

       construction of all remedial statutes; the old law, the mischief, and the

       remedy.”). So, for instance, in Martin, our supreme court found a statute to be

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015     Page 7 of 35
       remedial when it was enacted in response to a conflict in case law regarding its

       interpretation. 774 N.E.2d at 45. There, in revoking the defendant’s probation,

       the trial court denied him credit for time served on home detention as a

       condition of his probation. At the time, Indiana Code sections 35-38-2-3 and

       35-38-2.5-5 were silent as to whether a defendant was entitled to credit for time

       served on home detention as a condition of probation, leading to the conflict in

       case law. Id. While the defendant’s appeal from the denial of credit time was

       pending, the legislature amended those sections to specifically allow such credit

       time. Our supreme court held the amendments were remedial, as the legislature

       apparently responded to the conflict of authority and “intended to cure a defect

       that existed in prior statutes, namely: silence concerning whether a defendant

       was entitled” to the credit. Id. Thus, the court applied the amendments

       retroactively to the defendant. Id.


[13]   Here, however, there is no conflict in case law regarding the meaning or

       application of Indiana Code section 35-38-1-17(b). Our courts have consistently

       held that once the limited amount of time granted by the statute has passed, the

       trial court is without authority to reduce or suspend a sentence unless the

       prosecutor consents. See, e.g., State v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001)

       (although the trial court had attempted to reserve the right to modify the

       defendant’s sentence, the trial court lacked authority to grant defendant’s

       petition to modify because it was filed more than 365 days after defendant was

       sentenced); Schweitzer v. State, 700 N.E.2d 488, 492 (Ind. Ct. App. 1998) (“[I]f




       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015   Page 8 of 35
       the prosecuting attorney should oppose the motion for sentence modification,

       the trial court lacks authority to modify the sentence.”), trans. denied.


[14]   Moreover, there is no indication that the requirement of prosecutorial consent

       was an error; in fact, the statute’s history suggests the opposite. The legislature

       enacted the prosecutorial consent provision of the modification statute in 1991

       and did not eliminate it for over twenty years, during which time our legislature

       amended the statute in other ways. In 2014, the provision was amended as part

       of a comprehensive overhaul of the criminal code which suggests the

       amendment was made as part of a broader scheme and not to cure a singular

       defect or mischief in that provision alone. See Brown, 947 N.E.2d at 491

       (amendment to statute governing eligibility for credit time while on home

       detention through a community corrections program as part of “wholesale

       changes to community corrections programs” was not remedial; that original

       statute had explicitly excluded those serving home detention from receiving

       credit time and amendment specifically lifted that restriction demonstrated a

       change in policy, not a defect). Therefore, we decline to find the 2014

       amendment to Indiana Code section 35-38-1-17(b) to be remedial.


                        B. Was the 2014 Amendment Procedural?
[15]   The Johnsons also rely on Willis v. State, 567 N.E.2d 1170 (Ind. Ct. App. 1991),

       to support their position that the modification statute is procedural and the 2014

       version should apply to their petitions.




       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015     Page 9 of 35
[16]   We begin by noting that in State v. Crocker, 270 Ind. 377, 385 N.E.2d 1143

       (1979), our supreme court considered the effect of an amendment to an earlier

       version of the sentence modification statute. At the time the defendants in that

       case were sentenced, the modification statute allowed the trial court to suspend

       the remainder of a sentence anytime within 180 days after a sentence was

       imposed. Three months after the defendants were sentenced, the statute was

       amended to allow a trial court to suspend or reduce a sentence within 180 days.

       The trial court determined that the new statute was ameliorative and applied

       retroactively to the defendants. Therefore, it suspended seven years of

       Crocker’s fifteen year sentence and eight years of Sims’s ten year sentence. The

       State appealed, and the court held that because the defendants were sentenced

       prior to the effective date of the new statute and because the legislature did not

       include a specific retroactivity provision with the amendment, the statute in

       effect at the time of sentencing applied. 270 Ind. at 378, 385 N.E.2d at 1144.

       “[T]here was no authority under that [original] provision for the court to

       suspend part of the defendants’ sentences [and] the court’s modifications of

       these sentences were erroneous.” Id.


[17]   In Willis, the defendant was convicted and sentenced in February 1985, when

       the sentence modification statute provided that the court could reduce or

       suspend a sentence any time within 180 days after sentencing. In June 1985,

       the legislature amended the statute to permit the trial court, under certain

       circumstances, to consider modifying a sentence more than 180 days after

       sentencing, thus enlarging the time in which a defendant could petition for


       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015   Page 10 of 35
       modification. Recognizing the general rule that the statute in effect at the time

       of sentencing applies, the Willis court nonetheless held that the general rule was

       inapplicable to that case because “the statute under which [defendant] sought

       relief was procedural, not substantive . . . .” 567 N.E.2d at 1172. The court

       noted that 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.” Id. (emphasis added). Then the court

       noted that “[n]o such substantive change is involved here” because the

       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).3 Therefore, the court held the defendant was eligible to

       petition for modification under the amended statute. Id.


[18]   In Morris v. State, 936 N.E.2d 354 (Ind. Ct. App. 2010), trans. denied, we

       considered whether a 2001 amendment to the modification statute to add a

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

       Department of Correction to community corrections without the prosecutor’s

       approval was procedural and must apply to a defendant sentenced prior to 2001

       according to the Willis rationale. We held the amendment was more akin to the

       substantive amendment in Crocker that gave the sentencing court new powers



       3
        Because it acknowledged the substantive change in the statute addressed by Crocker, the court in Willis did
       not hold that the statute itself was inherently procedural, just that the particular amendment at issue therein
       was a procedural change. Id.

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                            Page 11 of 35
       than to the one in Willis that “simply [gave] a convicted person additional time

       to file a petition . . . . Id. at 358. Rather, the modification at issue “[gave] the

       trial court authority it did not previously have . . . .” Id. at 357. Accordingly,

       the amendment was not merely procedural and did not apply retroactively to

       give the trial court authority to modify the defendant’s sentence. Id. at 358.


[19]   We, like the court in Morris, find the 2014 amendment was not merely

       procedural. As noted above, a trial court generally has no authority over a

       defendant after sentencing. Harper, 8 N.E.3d at 696. The legislature has

       granted trial courts limited authority to modify a sentence pursuant to the

       provisions of Indiana Code section 35-38-1-17. At the time the Johnsons were

       sentenced, the statute gave the trial court authority to reduce or suspend a

       sentence in its discretion within 365 days, Ind. Code § 35-38-1-17(a), after

       which the trial court lacked authority to alter a sentence unless the prosecutor

       consented to the modification, Ind. Code § 35-38-1-17(b) (2012); State v. Porter,

       729 N.E.2d 591, 592 (Ind. Ct. App. 2000). As noted in Porter, this statute does

       not limit a trial court’s existing power; it grants authority the trial court would

       not otherwise have. 729 N.E.2d at 593 n.1. By eliminating the requirement of

       prosecutorial consent in the 2014 version of the statute, the legislature gave the

       trial court additional authority it did not previously have—the authority to

       unilaterally alter a defendant’s sentence after the expiration of 365 days. This

       was a substantive change in the statute.




       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015     Page 12 of 35
                                                C. Retroactivity
[20]   Even if the amendment were remedial or procedural, we must have “strong and

       compelling reasons” to apply a statute retroactively, and absent clear legislative

       intent to the contrary, we give statutes only prospective effect. Pelley, 828

       N.E.2d at 920. To ascertain legislative intent, “we look to the act as a whole

       and consider each section with reference to all the other sections and presume

       that the General Assembly would not intend an unreasonable or absurd result.”

       Brown, 947 N.E.2d at 492. Not only did the legislature not expressly make

       section 35-38-1-17(b) retroactive in the 2014 revision, the act as a whole

       includes a savings clause from which it is clear that the legislature did not

       intend the new criminal code to have any effect on proceedings for offenses

       committed before July 1, 2014. Ind. Code § 1-1-5.5-21; see Marley v. State, 17

       N.E.3d 335, 340 (Ind. Ct. App. 2014), trans. denied.4


[21]   Every provision of the savings clause bars the Johnsons’ petitions: their crimes

       were committed, their penalties incurred, and these proceedings were begun

       before July 1, 2014. The pre-2014 version of the statute which requires

       prosecutorial consent is therefore applicable to this petition for sentence




       4
         We also note that the 2014 statute included a provision restricting a convicted person to filing only one
       petition for modification within any 365 day period and two petitions during any consecutive period of
       incarceration. Ind. Code § 35-38-1-17(h). If the statute were applied retroactively, it would have to be
       applied retroactively in whole – thus still precluding the Johnsons, each of whom has already filed two
       petitions for modification, from relief.

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                           Page 13 of 35
       modification filed by the Johnsons.5 See Carr v. State, 2015 WL 2214051 at *2

       (Ind. Ct. App., May 12, 2015) (defendant filing petition on July 10, 2014 for

       modification of sentence imposed in 2000 not entitled to modification without

       prosecutorial consent under revised statute), trans. pending; Swallows v. State, 31

       N.E.3d 544 (Ind. Ct. App. 2015) (defendant filing petition on October 1, 2014

       for modification of sentence imposed in 1989 not entitled to modification under

       revised statute because of the plain meaning of the savings clause and legislative

       intent), trans. pending; Hobbs v. State, 26 N.E.3d 983, 985-86 (Ind. Ct. App. 2015)

       (“[T]here is no question that the current version of Indiana Code Section 35-38-

       1-17 does not apply” to a defendant who filed his petition for sentence

       modification on July 23, 2014 but was sentenced in 2006).



                                                  Conclusion
[22]   Because the 2014 amendment to Indiana Code section 35-38-1-17 was neither

       remedial nor procedural, and because the savings clause evinces the intent of




       5
         We note, as does the dissent, that since this case was decided by the trial court and fully briefed to this
       court, section 35-38-1-17 has been amended again. As this newest amendment did not become effective until
       May 5, 2015, it is not applicable to this case. We do note that the 2015 version of the sentence modification
       statute includes language making the section applicable to persons who committed an offense or were
       sentenced prior to July 1, 2014 notwithstanding the savings clause. Ind. Code § 35-38-1-17(a) (2015). That
       the legislature amended this section less than one year after the overhaul of the criminal code indicates that
       the 2014 amendment did not “unequivocally and unambiguously” express any intent for retroactivity in that
       section. See Pelley, 828 N.E.2d at 919. Moreover, the 2015 revision continues the limit on the number of
       petitions that may be filed by a defendant and also re-inserts the requirement of prosecutorial consent for
       “violent criminals”—which the Johnsons would be by virtue of their convictions of murder, see Ind. Code §§
       35-38-1-17(d)(1)—to file a petition for sentence modification after 365 days from the date of sentencing, Ind.
       Code § 35-38-1-17(k). Under any set of circumstances, the Johnsons are not entitled to the relief they seek –
       modification without prosecutorial consent.

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                          Page 14 of 35
       the legislature to apply the new criminal code only prospectively, the 2014

       version of the sentence modification statute does not apply to the Johnsons.

       Therefore, the trial court properly determined that, in the absence of

       prosecutorial consent, it had no authority to modify the Johnsons’ sentences.

       The trial court’s orders denying the petitions for sentence modification are

       affirmed.


[23]   Affirmed.




       Brown, J., concurs.


       Bailey, J., concurs in result with opinion.




       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015   Page 15 of 35
                                                     IN THE
            COURT OF APPEALS OF INDIANA

       Dennis Johnson,
       Raymond Johnson,
       Appellants-Defendants,
                                                                    Court of Appeals Case No.
                v.                                                  48A05-1408-CR-390

       State of Indiana,
       Appellee-Plaintiff




       Bailey, Judge, concurring in result.

[24]   The majority concludes that, because the recent revisions to the sentencing

       modification statute are neither remedial nor procedural, a prior version of the

       sentencing modification statute applies to the Johnsons’ petitions. I agree that

       the prior version of the statute applies in this case, but do so because of the time

       the Johnsons filed their petitions. I disagree that their dates of conviction and

       sentencing are controlling and therefore respectfully concur only in the result.


[25]   On December 19, 2013, the Johnsons each filed a request for reentry court

       evaluation,6 which, as the majority states, the trial court treated as petitions for




       6
         A reentry court is a type of problem solving court that is focused on the needs of individuals who reenter the
       community after a period of incarceration and that may provide a range of necessary reintegration services
       for eligible individuals. See I.C. § 33-23-16-9.

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                           Page 16 of 35
       sentence modification. The court initially denied the requests on December 26,

       2013, but on February 3, 2014, entered orders directing the New Castle

       Correctional Facility to prepare “as soon as possible” progress reports on the

       Johnsons “so that the court may determine if a modification hearing can be set

       in this cause.” (App. 302, 595.) The court set a hearing for June 2, 2014, after

       which the court again denied their requests for re-entry court evaluation due to

       the State’s objections. The court then set another sentence modification hearing

       for June 9, 2014, which was rescheduled twice and ultimately held on August

       11, 2014.


[26]   At the time the Johnsons filed their petitions in December 2013, the sentence

       modification statute provided, 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
               suspend the sentence, subject to the approval of the prosecuting attorney.


       See I.C. 35-38-1-17(b) (Supp. 2012) (emphasis added). By applying this version

       of the statute, the trial court denied the Johnsons’ petitions due to lack of

       prosecutorial approval.


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

       Indiana criminal code, 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



       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015         Page 17 of 35
       her sentence. See Pub. L. No. 158-2013, § 396 (2013); Pub. L. No. 168-2014, §

       58 (2014). As amended, the statute provided:

               (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”). The revised statute became

       effective July 1, 2014. In 2014, the General Assembly also enacted a savings

       clause that provides that the new criminal code does not affect penalties

       incurred, crimes committed, or proceedings begun before July 1, 2014. See I.C.

       § 1-1-5.5-21(a) (Supp. 2014) (the “savings clause”).


[28]   The trial court applied the prior version of the statute because the Johnsons

       were convicted and sentenced in 1997, before the new criminal code was in

       effect. On appeal, the Johnsons argue that the trial court erred when it applied

       the prior version and that their petitions should have proceeded under the

       revised statute’s provisions.


[29]   Before us, then, is the issue of whether the revised statute applies to petitions

       filed by persons convicted and sentenced before July 1, 2014. This is a question

       of statutory interpretation. 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


       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015      Page 18 of 35
       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.


[30]   In my view, the plain language of subsection (c) of the revised statute means

       that, after the statute’s effective date of July 1, 2014, the prosecutor’s consent is

       no longer required when the trial court is asked to consider reducing or

       modifying a sentence that the convicted person has been serving for more than

       365 days. Notably, no provision in the statute limits its application only to

       persons convicted or sentenced on or after July 1, 2014. Thus, under the plain

       meaning of the statute, I would apply the statute prospectively to all petitions

       for sentence modification filed on or after July 1, 2014, regardless of the

       petitioner’s conviction or sentencing date. After extensive discussion and

       analysis of relevant case law, this was the reasoning recently adopted by a

       majority of this panel in Moore v. State, __ N.E.3d __, No. 49A05-1408-CR-398

       (Ind. Ct. App. Apr. 22, 2015).


[31]   As it turns out, the question at issue here is one that has been presented multiple

       times to this Court in the last six months, producing three published opinions

       that conflict with Moore. In Hobbs v. State, Hobbs was convicted and sentenced

       in 2006 and petitioned for sentence modification on July 23, 2014. 26 N.E.3d

       983, 984-85 (Ind. Ct. App. 2015) (opinion issued January 29, 2015 and ordered

       published March 2, 2015). The trial court denied Hobbs’s petition, and on



       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015    Page 19 of 35
       appeal he argued that the revised statute should apply to his case. Id. at 985.

       Engaging in the following analysis, a panel of this Court held:

               [The revised statute] became effective on July 1, 2014, as part of our
               General Assembly’s overhaul of our criminal code pursuant to P.L.
               158–2013 and P.L. 168–2014. It was not in effect at the time Hobbs
               committed his offense against L.M.; rather, the law in effect at that
               time stated in relevant part: “If more than three hundred sixty-five
               (365) days have elapsed since the defendant 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.” I.C. § 35–38–1–17(b) (2005) (emphasis added); see
               also Harris v. State, 897 N.E.2d 927, 928–29 (Ind. 2008) (“The
               sentencing statute in effect at the time a crime is committed governs
               the sentence for that crime.”).
               Despite Hobbs’[s] assertions to the contrary on appeal, there is no
               question that the current version of Indiana Code Section 35–38–1–17
               does not apply to him. I.C. § 1–1–5.5–21 (“The general assembly does
               not intend the doctrine of amelioration . . . to apply to any SECTION
               of P.L. 158–2013 or P.L. 168–2014”); see also Marley v. State, 17 N.E.3d
               335, 340 (Ind.Ct.App.2014) (“It is abundantly clear . . . that the
               General Assembly intended the new criminal code to have no effect on
               criminal proceedings for offenses committed prior to the enactment of
               the new code.”), trans. denied. Hobbs’[s] arguments to the contrary are
               without merit.[ ]
       Id. at 985-86.


[32]   Subsequently, in Swallows v. State, __ N.E.3d __, No. 03A05-1412-CR-549 (Ind.

       Ct. App. April 30, 2015), another panel of this Court affirmed a trial court’s

       decision to apply the prior version of the statute to a petition for sentence

       modification filed on October 1, 2014. Slip op. at 1-2. The court reasoned that

       “[o]ur decision is governed by this court’s reasoning in Hobbs,” id. at 5, and




       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015       Page 20 of 35
       quoted the portion of Hobbs excerpted above. Id. at 6. Then, without further

       discussion of the savings clause or legislative intent, the court concluded:

               Noting the plain meaning of the savings clause, and following the
               intent of the Legislature and our court’s reasoning in Hobbs, we
               conclude that the current version of Indiana Code section 35-38-1-17,
               which became effective July 1, 2014, does not apply to Swallows’s
               petition to modify a sentence that he began serving in 1989.


       Id. at 7. Most recently, in Carr v. State, __ N.E.3d. __, No. 45A04-1409-CR-456

       (Ind. Ct. App. May 12, 2015), yet another panel of this Court held specifically

       that the savings clause barred Carr’s petition for sentence modification, filed on

       July 10, 2014, because “Carr’s crime was committed in 1999, well before the

       effective date of the new criminal code[.]” Slip op. at 4 (also citing Hobbs, 26

       N.E.3d at 985).


[33]   In each of these cases, the Court focuses on the petitioner’s conviction or

       sentencing date and concludes that, because the petitioner was convicted and

       sentenced before July 1, 2014, the prior version of the statute applies. As best as

       I can discern from the citations and minimal discussion of those authorities,

       these decisions have rested on two theories: (1) the law in effect at the time of

       conviction and sentencing governs a convicted person’s sentence, and therefore

       the sentencing modification law in effect at the time of conviction and

       sentencing must govern a petition for sentence modification subsequently filed,

       see Hobbs, 26 N.E.3d at 985 (citing Harris v. State, 897 N.E.2d at 928–29 (“The

       sentencing statute in effect at the time a crime is committed governs the

       sentence for that crime.”)); or (2) the savings clause bars application of the

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015     Page 21 of 35
       revised statute to a conviction or sentence imposed prior to July 1, 2014. See

       Hobbs, 26 N.E.3d at 985 (citing I.C. § 1–1–5.5–21 (“The general assembly does

       not intend the doctrine of amelioration . . . to apply to any SECTION of P.L.

       158–2013 or P.L. 168–2014”)); Carr, Slip op. at 3-4.


[34]   For the reasons expressed in Moore and reaffirmed and expanded upon here, I

       respectfully disagree with my colleagues on these two theories. As to the first, I

       believe that when a petition for sentence modification is presented to the court,

       the petition date – not the conviction or sentencing date – is the critical date for

       determining the applicability of the statute. Second, the savings clause does not

       bar application of the revised statute to a petition filed after the effective date of

       July 1, 2014, because the revised statute, by its terms, can have no ameliorative

       effect on a conviction or sentence previously imposed. I address each of these

       arguments in turn.


                                   Law in Effect at the Time of Petition

[35]   A trial judge generally has no authority over a convicted person after

       sentencing. State v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). However, the

       legislature may give the court authority, under certain circumstances, to modify

       a convicted person’s sentence. Id. Thus when a convicted person files a

       petition for sentence modification, he or she invokes the legislature’s limited

       grant of jurisdiction to the trial court for the purposes of sentence modification.

       Although any question of sentence modification necessarily refers to the

       sentence previously imposed, the sentence modification petition is a proceeding

       separate and apart from the adjudication of the case that resulted in conviction
       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015     Page 22 of 35
       and sentencing. Thus, in the context of sentence modification, the date on

       which the convicted person invokes the court’s jurisdiction is the critical date.


[36]   I agree with the statement of law quoted in Hobbs that, as a general rule, courts

       must sentence a convicted person under the statute in effect at the time the

       person committed the offense. Harris v. State, 897 N.E.2d 927, 928-29 (Ind.

       2008). See also Payne v. State, 688 N.E.2d 164, 165 (Ind. 1997). However, I

       believe that the general rule has no application here, where a sentence is not

       being imposed.


[37]   This Court has previously examined the effect of changes to the sentence

       modification statute 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 remove the 180-day limitation. Id.

       Willis petitioned the trial court for modification four years after he was

       sentenced – firmly outside the 180 day window. Id. The trial court applied the

       statute in effect at the time his sentence was imposed and held that Willis was

       ineligible to seek modification. Id.


[38]   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


       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015   Page 23 of 35
       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.


       Id. (emphasis added). In other words, because the sentence modification statute

       governs the process by which a convicted person seeks sentence modification,

       not the imposition of sentences, the general rule is inapplicable.


[39]   Similarly, the general rule has no effect in this case. Just as Willis did not ask

       the court for more lenient sentencing, the revised statute here explicitly provides

       that on review, “the court may reduce or suspend the sentence and impose a

       sentence that the court was authorized to impose at the time of sentencing.” I.C. § 35-

       38-1-17(c) (Supp. 2014). Thus, under the revised statute, a trial court may only

       impose a sentence authorized by the law in effect at the time of sentencing or

       within the court’s discretion under the terms of the convicted person’s plea

       agreement. Even where a convicted person seeks sentence modification under

       the revised statutory terms, the statute ensures that the person is still sentenced

       “under the statute in effect at the time the person committed the offense.”

       Payne, 688 N.E.2d 164, 165 (Ind. 1997). This provision of the revised statute

       eliminates the primary concern expressed in Hobbs that sentence modifications

       sought under the revised statute run afoul of the general rule that “[t]he

       sentencing statute in effect at the time a crime is committed governs the

       sentence for that crime.” Harris, 897 N.E.2d at 928–29.

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015      Page 24 of 35
[40]   Furthermore, 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:

               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.


[41]   The procedural nature of the change in Willis was thus: under the old

       modification statute, the court could not act upon Willis’s request; but under

       the new statute, his petition could proceed to the trial court for consideration on

       its merits. Here, when the General Assembly revised the modification statute to

       remove the need for prosecutorial approval, it also lifted a procedural barrier

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015     Page 25 of 35
       that prevented petitions from reaching trial courts for review on their merits.

       Before the revision, the court could not act upon a modification request absent

       the prosecutor’s consent; now, the court may hear the convicted person’s

       petition on its merits and decide whether to modify the sentence. Thus, the

       recent revision to the sentence modification statute implemented a procedural

       change akin to the change made in Willis.


[42]   The majority takes issue with the characterization of the change as

       “procedural,” likening it more to the substantive change at issue in Crocker. As

       the court in Willis explained, the change in Crocker was substantive because it

       gave the court “the power to reduce as well as suspend the remainder of the

       sentence.” Id. (emphasis added). At the time Crocker was sentenced, the court

       could only suspend a sentence to probation under the prior statute, but under

       the new statute, the court had the added power to reduce the sentence. That is,

       the revision gave the court the power to modify a sentence in a way that the

       court could not have done before. The options available to the court were now

       different, and that was a substantive change in the court’s power over the

       sentence.


[43]   The revised statute does not change the trial court’s authority. Here, the trial

       court still retains all of the power over the sentence that it had before. In our

       adversarial system, the power to impose a sentence rests with the court.

       Though the prosecutor’s consent to modification was required under the prior

       version, the prosecutor never had the ability to reduce or modify the sentence.

       The prosecutor’s consent was only a condition on the trial court’s authority.

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015   Page 26 of 35
       See Beanblossom v. State, 637 N.E.2d 1345, 1348 (Ind. Ct. App. 1994) (“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.”)

       (emphasis added), trans. denied. Thus, by lifting the requirement that the

       prosecutor consent, the legislature merely enacted a procedural change.


[44]   Of course, the prosecutor’s role in representing the State’s interest at a

       modification hearing is critical. This role is clearly preserved by the revised

       statute’s provision that a court must notify the prosecuting attorney and the

       prosecutor must give notice to the victim if the court sets a hearing on the

       petition. I.C. § 35-38-1-17(d) (Supp. 2014). Furthermore, if a hearing is not

       held, a court may only reduce or suspend a sentence if the prosecuting attorney

       agrees to the reduction or suspension and the convicted person waives his or

       her right to be present. I.C. § 35-38-1-17(g) (Supp. 2014).


[45]   Because the legislature implemented a procedural change and expressly

       provided that 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), I would

       hold that the revised statute applies to petitions filed after the effective date of

       the statute, even where the petitioner was convicted and sentenced prior to July

       1, 2014.


                                                  Savings Clause

[46]   The second line of reasoning advanced by Hobbs and its progeny is that, because

       the revised statute was enacted as part of the new criminal code, the code’s

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015         Page 27 of 35
       savings clause prevents persons who were convicted or sentenced before July 1,

       2014 from petitioning for sentence modification under the revised statute’s

       terms. The savings clause provides:

                 (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 revisions to Indiana Code Section 35-38-1-

       17 occurred pursuant to Public Law 158-2013 and House Enrolled Act 1006-

       2014.7 See Pub. L. No. 158-2013, § 396 (2013); Pub. L. No. 168-2014, § 58

       (2014).


[47]   In Hobbs, Carr, and the majority here, my colleagues would read the savings

       clause to bar application of all provisions of the new criminal code in all

       proceedings brought by a person whose original conviction or sentencing date

       was before July 1, 2014. But the legislature did not cast such a wide net, and I




       7
           H.E.A. 1006-2014 was enacted in 2014. See Pub. L. No. 168-2014 (2014).



       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015       Page 28 of 35
       believe that, because a petition for sentence modification initiates a proceeding

       separate and apart from conviction and sentencing, the savings clause does not

       bar application of the revised statute when a sentence modification petition is

       filed after July 1, 2014.


[48]   Subsection (a)(3) provides that the new code may not affect a “proceeding

       begun” before July 1, 2014. As discussed above, sentence modification

       petitions are separate proceedings that invoke the legislature’s limited grant of

       jurisdiction to the court for the purpose of reducing or modifying a sentence.

       These proceedings are initiated when the convicted person files his or her

       petition. Thus, the language of subsection (a)(3) procedurally bars application

       of the revised statute to petitions filed before July 1, 2014, but allows petitions

       filed after July 1, 2014 to be affected by the new code.


[49]   Even in proceedings begun after July 1, 2014, however, the savings clause

       prohibits sections of Public Law 158-2013 or HEA 1006-2014 from affecting

       “penalties incurred” or “crimes committed” before July 1, 2014, or producing

       ameliorative effects. See I.C. §§ 1-1-5.5-21(a)(1)-(2) & (b) (Supp. 2014).


[50]   Public Law 158-2013 was “a voluminous act amending Indiana’s criminal

       sentencing scheme.” Pavlovich v. State, 6 N.E.3d 969, 975 n.3 (Ind. Ct. App.

       2014), trans. denied. The act overhauled the criminal code in part by

       reclassifying felony offenses from four classes to six levels and implementing a

       new sentencing scheme that frequently provides for reduced advisory sentences

       and sentencing ranges. Id. In my view, the language of subsections (a)(1) and


       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015    Page 29 of 35
       (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 the

       new classification and sentencing scheme.


[51]   By lifting the requirement that the prosecutor consent to modification, the

       revised statute does not change the penalty range and does not redefine or

       reclassify a crime. Thus, the revisions to the sentence modification statute do

       not “affect” penalties incurred or crimes committed before July 1, 2014. I.C. §§

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

       statute only changed the procedure by which a person may request a sentence

       modification. In this way, the revised statute certainly “affects” the sentence

       modification process. But it does not “affect” a penalty imposed or crime

       committed simply because it changes the terms under which a person may seek

       sentence modification. See Willis, 567 N.E.2d at 1172.


[52]   Subsection (b) of the savings clause also does not bar application of the revised

       statute to petitions filed after July 1, 2014. Subsection (b) of the savings clause

       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). 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.”). But here, as

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015   Page 30 of 35
       discussed above, 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)

       (Supp. 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 sentence that was permissible at the time of sentencing. And because

       the revised statute has no ameliorative effect, subsection (b) of the savings

       clause does not bar the revised statute’s application to petitions made by

       persons convicted or sentenced prior to July 1, 2014.8


[53]   Finally, I observe that very recently in 2015, the General Assembly revised

       Indiana Code section 35-38-1-17, adding among other changes, the following

       language:

               (a) Notwithstanding IC 1-1-5.5-21, this section applies to a person
               who:
                    (1) commits an offense; or
                    (2) is sentenced;
               before July 1, 2014.




       8
         Because the revised statute would have no ameliorative effect on Moore’s sentence, this
       Court’s recent discussion of the savings clause in Marley v. State, 17 N.E.3d 335 (Ind. Ct. App.
       2014), trans. denied, and cited in Hobbs, 26 N.E.3d at 986, is 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 48A05-1408-CR-390 | June 25, 2015              Page 31 of 35
       P.L. 164-2015 § 17(a) (effective May 5, 2015) (“the 2015 revision”). This

       language expressly sets aside the operation of subsection (a)(1) and (a)(2) of the

       savings clause on sentence modifications. And in my view, the reference to

       July 1, 2014, the effective date of the 2014 revised statute (not the effective date

       of the newest revision), indicates that the legislative intent was always to apply

       the revised statute to those persons convicted and sentenced before July 1, 2014.

       Notably, subsection (a)(3) was not exempted in the 2015 revision. This leaves

       intact the provision that the revised statute does not apply to proceedings begun

       before July 1, 2014.


[54]   Furthermore, to the degree that the revised statute and the savings clause are

       ambiguous, the “primary goal of statutory construction is to determine, give

       effect to, and implement the intent of the Legislature.” City of Carmel v. Steele,

       865 N.E.2d 612, 618 (Ind. 2007). Here, the legislature provided that the

       criminal code “shall be construed in accordance with its general purposes, to,”

       among other enumerated goals, “secure simplicity in procedure,” “reduce crime

       by promoting the use of evidence based best practices for rehabilitation of

       offenders in a community setting,” and “keep dangerous offenders in prison by

       avoiding the use of scarce prison space for nonviolent offenders.” I.C. § 35-32-

       1-1(1), (5)-(6).


[55]   The goal of simplicity in procedure is served when the procedure for sentence

       modification is the same for all petitioners. It is difficult to fathom that the

       legislative intent of the savings clause was to bar a procedural change that

       would ultimately streamline the sentence modification process.

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015    Page 32 of 35
[56]   Moreover, by allowing petitions to proceed directly to courts for evaluation on

       their merits, courts will have greater ability to evaluate the rehabilitative efforts

       of a convicted person. If courts may determine that rehabilitation is better

       effectuated in a community setting, courts may then conserve scarce prison

       resources for dangerous offenders through appropriate sentence modifications.

       And although the statute no longer requires the prosecutor’s consent before the

       court hears a petition, the revised statute preserves the prosecutor’s critical role

       in representing the State’s interest in a sentence modification by requiring

       advance notice to the prosecutor of any modification hearing. I.C. § 35-38-1-

       17(d) (Supp. 2014). Thus, no modifications may be made without first giving

       the prosecutor an opportunity to present evidence and argument at the hearing.

       And where a hearing is not held, the prosecutor must agree to the modification.

       I.C. § 35-38-1-17 (g) (Supp. 2014).


                                               Johnsons’ Petitions

[57]   In this particular case, the Johnsons’ sentence modification proceedings began

       when they filed their petitions on December 19, 2013. Because the savings

       clause explicitly bars application of the revised statute to proceedings begun

       before July 1, 2014, the Johnsons’ petitions must proceed under the prior

       version of the sentence modification statute. Here, the prosecutor did not

       consent to the modification of the Johnsons’ sentences. Accordingly, I would

       affirm the trial court’s denial of the Johnsons’ petitions on this ground alone.


[58]   The logical outgrowth of my view is that had the Johnsons filed on or after July

       1, 2014, the revised statute’s terms would apply to their petitions. There is
       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015    Page 33 of 35
       nothing unique about this approach. As previously mentioned, the Indiana

       criminal code was substantially revised in 2013. As a result of the savings

       clause, however, the new penalties apply only to those persons who commit

       offenses after July 1, 2014. For example, under the previous code, Dealing in a

       Schedule I, II, or III Controlled Substance was a Class B felony carrying a

       sentence of between six and twenty years. See I.C. §§ 35-48-4-2(a); 35-50-2-5

       (2013). However, the same offense on or after July 1, 2014 is now classified as

       a Level 6 felony, subject to a significantly lower sentencing range of six months

       to two and one-half years. See I.C. §§ 35-48-4-2(a); 35-50-2-7(b) (2014). The

       savings clause has so far withstood the constitutional challenges brought against

       it. See Schaadt v. State, __ N.E.3d __, No. 33A05-1409-CR-428, slip op. at 5

       (Ind. Ct. App. Apr. 8, 2015) (holding that the savings clause did not violate the

       equal privileges and immunities clause of the Indiana Constitution where the

       defendant would have faced lesser sentencing ranges had he committed his

       offense after July 1, 2014). This is because “‘the time of a crime is selected as

       an act of free will by the offender.’” Id. (quoting Rondon v. State, 711 N.E.2d

       506, 513 (Ind. 1999)). Similarly, the petitioner selects the time to file for

       sentence modification. Thus, I am not troubled that the modification statute

       also draws a line in the sand based on the petition date.


[59]   On first glance, it may also appear that, if all persons convicted and sentenced

       before July 1, 2014 may now file petitions under the revised statute, our trial

       courts will be overwhelmed by an influx of petitions. This concern is

       unfounded, as the legislature in the revised statute limited the number of times a


       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015    Page 34 of 35
       convicted person may seek modification. Subsection (h) provides: “A convicted

       person may file a petition for sentence modification under this section: (1) not

       more than one (1) time in any three hundred sixty-five (365) day period; and (2)

       a maximum of two (2) times during any consecutive period of incarceration.”

       I.C. § 35-38-1-17(h) (Supp. 2014).9 Because under this provision a convicted

       person must now make strategic decisions about the most advantageous time to

       make his or her two requests, trial courts are unlikely to be overwhelmed by

       sentence modification petitions.


                                                      Conclusion

[60]   I would hold that the revised statute applies to all petitions filed on or after July

       1, 2014, regardless of the petitioner’s conviction or sentencing date. Here, the

       Johnsons filed their petitions before the effective date of the statute, and thus

       the trial court did not err in applying the prior version of the statute and

       denying their petitions for lack of prosecutorial consent. Because I reach this

       conclusion on a different basis than the majority, I respectfully concur in the

       result.




       9
         The 2015 revision places a similar limitation on the number of petitions that a convicted person may file.
       P.L. 164-2015 § 17(j). The 2015 revision also further restricts the number and timing of petitions filed by
       violent criminals, as defined by P.L. 164-2015 § 17(d). For example, the 2015 revision limits violent
       criminals to one petition made without the prosecutor’s consent within 365 days of sentencing. P.L. 164-
       2015 § 17(k).

       Court of Appeals of Indiana | Opinion 48A05-1408-CR-390 | June 25, 2015                          Page 35 of 35
