MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Jan 14 2016, 8:08 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Aaron E. Haith                                           Gregroy F.Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Indianapolis, Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven Wright,                                           January 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1409-CR-426
        v.                                               Appeal from the Marion Superior
                                                         Court, Criminal Division, Room
State of Indiana,                                        No. 1
Appellee-Plaintiff                                       The Honorable Steven Rubick,
                                                         Magistrate
                                                         The Honorable Kurt M. Eisgruber,
                                                         Judge
                                                         Trial Court Cause No.
                                                         49G01-0211-FB-276086



Altice, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016        Page 1 of 10
                                               Case Summary


[1]   Steven Wright appeals from the trial court’s denial of his motion to modify his

      sentence.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The facts underlying Wright’s convictions were set out on direct appeal by our

      Supreme Court as follows:

              Wright was the stay-at-home caregiver for four very young
              children, whom he battered and neglected over a substantial
              period of time.


                                                      ***


              When the Marion County Sheriff’s Department went to Wright’s
              home on September 2, 2001, to investigate the concern of an
              alarmed relative who had recently seen the children, it was not
              the first indication that Wright was abusing and neglecting the
              children in his care. In April 1999, Ma. W., then five months
              old, arrived at the hospital with a fever, but medical examination
              revealed she also had seven right rib fractures and two left rib
              fractures and a healing fracture in her right femur. Wright told
              investigating officers that the leg was broken when an uncle had
              lost his grip while holding the child and grabbed her to prevent
              her from falling. At that time, Wright had no explanation for the
              broken ribs, except to suggest that he had, perhaps, held Ma. W.
              too tightly. At trial, however, Wright suggested the possibility
              that both the ribs and femur were broken when the uncle grabbed
              his daughter to prevent her from falling.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016   Page 2 of 10
              The scene observed by the sheriff’s deputies thirty months later
              was a chilling one. Two twins lying on a couch presented such a
              shocking appearance that the officers immediately called an
              ambulance. The children’s heads were enlarged and swollen;
              their bodies were malnourished and thin; their eyes were popping
              out of their heads. Medical examination showed that each child
              had suffered at least seventeen fractures on various parts of their
              bodies. At seven months of age, they weighed barely ten pounds
              apiece. The record is replete with details of brain injury and
              other damage to the twins. Upstairs, the deputies found Ma. W.
              and her sister, ages three and two, in somewhat less distressful
              condition.


      Wright v. State, 829 N.E.2d 928, 929 (Ind. 2005) (citations to record omitted).


[4]   Wright was convicted of two counts of neglect of a dependent and four counts

      of battery, all class B felonies. Wright was subsequently sentenced to fifteen

      years on every count with three terms ordered consecutive thereby resulting in

      an aggregate executed sentence of forty-five years. Wright appealed challenging

      the sufficiency of the evidence and the appropriateness of his sentence. This

      court affirmed the trial court’s judgment. Wright v. State, 818 N.E.2d 540 (Ind.

      Ct. App. 2004), trans. granted. The Indiana Supreme Court summarily affirmed

      this court’s opinion insofar as it was determined that the evidence was sufficient

      to support Wright’s convictions, but held that while several aggravating factors

      could be relied upon to support consecutive sentences, those aggravators could

      not be used to enhance Wright’s sentences. The Court remanded for a new

      sentencing hearing. On September 1, 2005, the trial court reduced Wright’s

      sentence from fifteen years on each count to ten years on each count and then



      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016   Page 3 of 10
      ordered the sentences on four counts to run consecutively for an aggregate

      sentence of forty years imprisonment.


[5]   On March 28, 2014, Wright filed a Motion for Reduction of or a Suspension of

      Sentence pursuant to Ind. Code § 35-38-1-17. On April 30, 2014, the State filed

      an objection to Wright’s motion. On May 7, 2014, the trial court requested a

      conduct report from the Department of Correction. A hearing on Wright’s

      motion was held on July 18, 2014. The trial court denied the motion on August

      18, 2014. This appeal ensued.


                                          Discussion & Decision


[6]   Wright argues that the trial court abused its discretion in denying his motion to

      reduce or suspend his sentence. Wright maintains that the trial court ignored

      the intent of I.C. § 35-38-1-17, which, he asserts “presents a question of

      rehabilitation which must be considered not from the stand point of the initial

      sentencing decision but by the convicted person’s conduct and achievements

      toward the desired goal of rehabilitation - reformation.” Appellant’s Brief at 8

      (citing Ind. Const. art. 1, §§ 16 and 18).


[7]   Before we address Wright’s argument, we note the State, relying upon the

      version of I.C. § 35-38-1-17 in effect at the time of Wright’s original sentencing

      and still in effect when Wright filed his request for modification, argues that the

      trial court did not have authority to modify Wright’s sentence without the

      prosecutor’s approval. See I.C. § 35-38-1-17(b) (2014) (“If more than three

      hundred sixty-five (365) days have elapsed since the convicted person began

      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016   Page 4 of 10
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.” (emphasis supplied)). This statute, however, was

amended again and the current version, which went into effect on May 5, 2015

now “applies to a person who: (1) commits an offense; or (2) is sentenced;

before July 1, 2014.” See I.C. § 35-38-1-17(a) (2015); P.L. 164-2015.                              The

amended statute further provides, in pertinent part, that a convicted person who

is not a violent criminal1 “may file a petition for sentence modification . . .

without the consent of the prosecuting attorney.” I.C. § 35-38-1-17(j). Another

panel of this court recently considered the amended statute and held that “[i]n

light of the legislature’s clear intent that the statute be applied retroactively, we

agree with the State that the amended statute applies to [defendant], whose

appeal was pending when the retroactivity amendment went into effect.” 2

Vazquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015). The same is true in

this case. Wright’s appeal was pending when the amended statute went into




1
  For purposes of this statute, “violent criminal” is defined in I.C. § 35-38-1-17(d). The State argues that the
facts underlying Wright’s crimes would constitute aggravated battery pursuant to Ind. Code § 35-42-2-1.5,
and thus asserts that Wright should be deemed a violent criminal. See I.C. § 35-38-1-17(d)(6). If classified as
a “violent criminal” under this statute, a convicted person “may not file a petition for sentence modification
without the consent of the prosecuting attorney.” I.C. § 35-38-1-17(k). In this appeal, we will not reclassify
Wright’s crimes as aggravated battery.
2
  In Vazquez, the defendant pleaded guilty in 2004 and filed his most-recent petition to modify his sentence in
October 2014. The Vazquez court ultimately determined that the amended statute did not entitle the
defendant to the relief sought because the defendant’s request for modification was untimely as it was filed
less than three months after his previous request for modification. The court noted the amended statute
mandates this result in that it clearly provides that “[a] convicted person who is not a violent criminal may
file a petition for sentence modification under this section . . . not more than one (1) time in any three
hundred sixty-five (365) day period . . . .” I.C. § 35-38-1-17(j)(1).

Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016              Page 5 of 10
      effect. The prosecutor’s consent was therefore not required in order for the

      court to have authority to consider Wright’s request for modification of his

      sentence.


[8]   We now turn to Wright’s argument. A decision to grant or deny a motion for

      sentence modification is within the trial court’s discretion. Hawkins v. State, 951

      N.E.2d 597, 599 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion will

      not be found unless the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances before the court, or the reasonable,

      probable, and actual deductions to be drawn therefrom. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218

      (Ind. 2007).


[9]   During the hearing on Wright’s motion, Wright noted his many

      accomplishments while incarcerated, including completion of a self-help

      program and receiving an associate’s degree in finance, as well as his good

      behavior and family support, in arguing to the court that he had been

      rehabilitated and was deserving of a modified sentence. In response, the State

      objected to any modification based “mostly [on] the nature of the crime.”

      Transcript at 9. In its order denying Wright’s motion, the trial court concluded

      that having considered the parties’ arguments and the evidence before it,

      modification of Wright’s sentence was “neither warranted nor appropriate.”

      Appellant’s Brief at 12.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016   Page 6 of 10
[10]   We reject the notion espoused by Wright that the court was limited to

       considering only his achievements and efforts at rehabilitation occurring after

       the initial sentencing decision. While such efforts are to be considered, the facts

       and circumstances of the crimes are undoubtedly important to consider when

       the court decides whether to modify a sentence. In fact, we have before held in

       considering a different statute allowing for sentence modification that “the

       heinousness of a person’s crime alone can serve as the basis for denying a

       sentence reduction.” Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999);

       see also Marshall v. State, 563 N.E.2d 1341, 1344 (Ind. Ct. App. 1990) (balancing

       defendant’s rehabilitative conduct against the aggravating circumstances in

       original sentencing order in affirming denial of motion to modify sentence),

       trans. denied. As our Supreme Court observed on direct appeal, “even in the

       substantial flow of cases reflecting child abuse, Steven V. Wright’s appeal

       stands out.” Wright, 829 N.E.2d at 929. Wright was the stay-at-home caregiver

       for four very young children, whom he battered and neglected over a substantial

       period of time, the alarming details of which are recounted above.


[11]   The trial court’s decision to modify, reduce, or suspend a sentence is entirely

       discretionary, and the fact that rehabilitation has begun does not compel a

       modification of the underlying sentence. Given the extreme depravity of

       Wright’s crimes, we cannot say the trial court abused its discretion in denying

       Wright’s motion to modify his sentence.


[12]   Judgment affirmed.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016   Page 7 of 10
Barnes, J., concur.


Robb, J., concurring in result with opinion.




Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016   Page 8 of 10
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Steven Wright,                                            January 12, 2016
      Appellant,                                                Court of Appeals Case No.
                                                                49A05-1409-CR-426
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,
      Appellee




      Robb, Judge, concurring in result


[1]   The sentences for the crimes for which Wright was convicted (neglect of a

      dependent and battery) are, by law, modifiable. It is not the fact of the crimes

      themselves that cause me to agree they should not be modified. I do not believe

      the heinousness of the crime alone is sufficient to deny modification, if Indiana

      law has not excluded the crime from consideration. See Ind. Code § 35-38-1-

      17(d); see also slip op. at 5 n.1. I ultimately agree with the majority that the trial

      court did not abuse its discretion in denying Wright’s motion for sentence

      modification. I agree based on a consideration of the facts of his crime—

      specifically his position of trust over four small children and the severity of the
      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016   Page 9 of 10
damage he inflicted on them—and his efforts at rehabilitation since—which are

admirable but do not appear targeted toward his ability or willingness to resist

abusing such a position of trust in the future. I respectfully concur in result.




Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-426 | January 14, 2016   Page 10 of 10
