MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 08 2019, 10:59 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ruth Johnson                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Ellen H. Meilaender
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Wise Sr.,                                         July 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2941
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable Steven R. Nation,
Appellee-Plaintiff.                                       Judge

                                                          Trial Court Cause No.
                                                          29D04-1412-FC-9933



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2941 | July 8, 2019                       Page 1 of 5
                                                 Case Summary
[1]   In 2015, Michael Wise Sr. was sentenced to an aggregate sixteen-year term of

      incarceration. He appeals from the denial of a motion to modify his placement.

      This is the fourth time Wise’s case has come before the court. We have

      previously affirmed (1) his conviction for Class C felony check fraud, (2) the

      denial of his request for additional credit time, and (3) the denial of his request

      to modify his sentence. In the instant appeal, Wise contends that the trial court

      abused its discretion by denying his request to modify his sentence by altering

      his placement. We affirm.



                                 Facts and Procedural History
[2]   In June of 2014, Wise used a number of checks from a closed PNC Bank

      account to purchase certain auto-related items. Wise v. State, 29A02-1509-CR-

      1377 *2 (Ind. Ct. App. May 13, 2016) (“Wise I”). In July of 2015, Wise was

      convicted of Class C felony check fraud and was found to be a habitual

      offender. Id. at *2. Wise was subsequently sentenced to an aggregate sixteen-

      year sentence. Id. Wise’s conviction was affirmed on appeal. Id. at *6.


[3]   In August of 2016, Wise sought post-conviction relief.1 In August of 2017, he

      filed a motion for additional credit time, which was denied by the trial court.

      We affirmed the denial of Wise’s motion in a memorandum decision dated




      1
          It appears that at least part, if not all, of Wise’s petition has been denied.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2941 | July 8, 2019         Page 2 of 5
      January 30, 2019. See Wise v. State, 29A02-1710-CR-2385 *2 (Ind. Ct. App. Jan.

      30, 2019) (“Wise II”).


[4]   On July 18, 2018, Wise filed a “Motion to Modify Sentence” (“First Motion to

      Modify”). The trial court denied the First Motion to Modify on August 1,

      2018.


[5]   On September 14, 2018, Wise filed a “Motion to Modify Placement” (“Second

      Motion to Modify”), which is the motion at issue in this appeal. The trial court

      denied the Second Motion to Modify on September 26, 2018.


[6]   On November 15, 2018, Wise filed a “Motion for Placement in the Purposeful

      Incarceration Program” (“Third Motion to Modify”), which the trial court

      denied on November 29, 2018. We affirmed the denial of the Third Motion to

      Modify in a memorandum decision dated May 31, 2019. Wise v. State, 18A-

      CR-3141 *6 (Ind. Ct. App. May 31, 2019) (“Wise III”).



                                 Discussion and Decision
[7]   At the outset, we note that in challenging the denial of his Second Motion to

      Modify, Wise contends that the trial court “mistakenly considered” the motion

      as a request to modify his sentence. Appellant’s Br. p. 10. In raising this

      contention, Wise argues that his request should not have been treated as a

      motion to modify his sentence because he was only requesting that his

      placement be changed from the Department of Correction (“DOC”) to

      community corrections. We have previously rejected this argument,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2941 | July 8, 2019   Page 3 of 5
      concluding that “[i]f after sentencing, a defendant requests to modify his

      placement and be allowed to serve his sentence in a community corrections

      program, this is a request for a modification of sentence under Ind. Code § 35-

      38-1-17.” Keys v. State, 746 N.E.2d 405, 407 (Ind. Ct. App. 2001); see also

      Woodford v. State, 58 N.E.3d 282, 284 n.6 (Ind. Ct. App. 2016). The trial court,

      therefore, properly treated the Second Motion to Modify as a motion for a

      sentence modification.


[8]   Also, as they did in Wise III, the parties dispute which version of Indiana Code

      section 35-38-1-17 applies to Wise’s motion. Wise argues that the version of the

      statute in effect prior to July 1, 2014 applies and the State argues that the

      current version of the statute applies. For the reasons we stated in Wise III, we

      agree with the State that the current version of the statute applies. See Wise III,

      18A-CR-3141 *5 (noting that the current version of Indiana Code section 35-38-

      1-17 applies to a person who commits an offense prior to July 1, 2014, and

      Wise committed the underlying offense at issue in June of 2014).


[9]   The current version of Indiana Code section 35-38-1-17 provides, in relevant

      part:


              (j) This subsection applies only to a convicted person who is not
              a violent criminal. A convicted person who is not a violent
              criminal 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;

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2941 | July 8, 2019   Page 4 of 5
               without the consent of the prosecuting attorney.


[10]   As is noted above, Wise has filed three motions to modify his sentence. Wise’s

       motions are subject to the limitations imposed in Indiana Code section 35-38-1-

       17(j). The Second Motion to Modify, which is at issue in this appeal, was filed

       without the consent of the prosecuting attorney approximately two months after

       the First Motion to Modify. As such, it exceeded the restrictions of Indiana

       Code section 35-38-1-17(j) which limit a non-violent offender to “not more than

       one” request to modify his sentence “in any three hundred sixty-five (365) day

       period” without the consent of the prosecuting attorney. Because Wise

       exceeded the authorized number of filings, we conclude that the trial court did

       not abuse its discretion by denying Wise’s motion.


[11]   The judgment of the trial court is affirmed.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2941 | July 8, 2019   Page 5 of 5
