MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Apr 27 2015, 9:15 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Anthony Gonterman                                         Gregory F. Zoeller
Carlisle, Indiana                                         Attorney General of Indiana

                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Anthony Gonterman,                                       April 27, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         42A01-1410-CR-435
        v.                                               Appeal from the Knox Circuit Court

State of Indiana,                                        The Honorable Sherry B. Gregg
                                                         Gilmore, Judge
Appellee-Plaintiff.
                                                         Cause No. 42C01-9508-CF-43




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 42A01-1410-CR-435| April 27, 2015      Page 1 of 5
                                       Statement of the Case
[1]   Anthony Gonterman appeals the trial court’s denial of his motion for

      appointment of special prosecutor and motion for modification of sentence.

      Gonterman presents two issues for our review:

              1.       Whether the trial court abused its discretion when it
                       denied his motion for appointment of a special prosecutor.

              2.       Whether the trial court abused its discretion when it
                       denied his motion for modification of sentence.


      We affirm.


                                 Facts and Procedural History
[2]   On August 18, 1995, the State charged Gonterman with kidnapping, as a Class

      A felony; escape, as a Class B felony; and robbery, as a Class B felony. And on

      March 22, 1996, Gonterman pleaded guilty as charged. On April 11, 1996, the

      trial court entered judgment of conviction and sentenced Gonterman to an

      aggregate term of fifty-five years. Gonterman did not appeal his sentence.


[3]   On April 7, 1997, Gonterman filed a “verified motion for reduction or

      suspension of sentence,” which the trial court denied. Appellant’s App. at 2.

      On October 23, 2006, Gonterman filed a motion for modification of sentence,

      and, after the State objected, the trial court denied that motion. On February

      26, 2007, Gonterman filed another motion for modification of sentence and a

      petition for the appointment of a special prosecutor. The State filed an

      objection to the petition for the appointment of a special prosecutor. Following

      Court of Appeals of Indiana | Memorandum Decision 42A01-1410-CR-435| April 27, 2015   Page 2 of 5
      a hearing, the trial court denied Gonterman’s petition for appointment of a

      special prosecutor, and the court subsequently denied Gonterman’s motion for

      modification of sentence. Gonterman appealed the trial court’s denial of those

      motions, but his appeal ultimately was dismissed with prejudice.


[4]   On July 8, 2014, Gonterman filed another motion for modification of sentence

      and a motion for appointment of special prosecutor, and the trial court denied

      those motions. This appeal ensued.


                                     Discussion and Decision
                    Issue One: Motion for Appointment of Special Prosecutor

[5]   Gonterman first contends that the trial court abused its discretion when it

      denied his motion to appoint a special prosecutor. But we do not address that

      issue on the merits because, as the State points out, it is barred by res judicata.


              The doctrine of res judicata prevents the repetitious litigation of
              disputes that are essentially the same. French v. French, 821
              N.E.2d 891, 896 (Ind. Ct. App. 2005). The principle of res
              judicata is divided into two branches: claim preclusion and issue
              preclusion, also referred to as collateral estoppel. Id.

                                                      ***

              Claim preclusion applies where a final judgment on the merits
              has been rendered and acts as a complete bar to a subsequent
              action on the same issue or claim between those parties and their
              privies. Id. When claim preclusion applies, all matters that were
              or might have been litigated are deemed conclusively decided by
              the judgment in the prior action. Dawson v. Estate of Ott, 796
              N.E.2d 1190, 1195 (Ind. Ct. App. 2003). The following four

      Court of Appeals of Indiana | Memorandum Decision 42A01-1410-CR-435| April 27, 2015   Page 3 of 5
                requirements must be satisfied for a claim to be precluded under
                the doctrine of res judicata: (1) the former judgment must have
                been rendered by a court of competent jurisdiction; (2) the former
                judgment must have been rendered on the merits; (3) the matter
                now in issue was, or could have been, determined in the prior
                action; and (4) the controversy adjudicated in the former action
                must have been between the parties to the present suit or their
                privies. Small v. Centocor, Inc., 731 N.E.2d 22, 26 (Ind. Ct. App.
                2000), trans. denied.


      Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans.

      denied.


[6]   Here, in 2007, Gonterman filed a petition for a special prosecutor, which the

      trial court denied. Gonterman appealed, and that appeal was dismissed with

      prejudice. It is well settled that a dismissal with prejudice is a dismissal on the

      merits, and, as such, it is conclusive of the rights of the parties. Lakeshore Bank

      & Trust Co. v. United Farm Bureau Mut. Ins. Co., 474 N.E.2d 1024, 1027 (Ind. Ct.

      App. 1985). Claim preclusion bars Gonterman’s challenge to the trial court’s

      denial of his petition for appointment of special prosecutor in this appeal. Herr,

      834 N.E.2d at 703.


                          Issue Two: Motion for Modification of Sentence

[7]   Gonterman next contends that the trial court abused its discretion when it

      denied his motion for modification of sentence. Generally, a trial judge has no

      authority over a defendant after he pronounces sentence. Sanders v. State, 638

      N.E.2d 840, 841 (Ind. Ct. App. 1994). A limited exception is found in Indiana

      Code Section 35-38-1-17(b), which, at the time Gonterman committed the

      Court of Appeals of Indiana | Memorandum Decision 42A01-1410-CR-435| April 27, 2015   Page 4 of 5
      instant offenses, provided that, after 365 days have elapsed since the date of

      sentencing, a trial judge may reduce or suspend the sentence subject to the

      approval of the prosecuting attorney.1 Id. Where the prosecuting attorney

      acquiesces in the motion for sentence modification under subsection (b), the

      decision to grant or deny the motion is within the trial court’s discretion. Id.


[8]   Here, more than one year had elapsed between the date of sentencing and

      Gonterman’s motion for modification of sentence, and the prosecutor did not

      acquiesce in the motion.2 Thus, the trial court did not have discretion to

      consider Gonterman’s motion. See id. Accordingly, Gonterman cannot show

      that the trial court abused its discretion when it denied his motion.


      Affirmed.


      Baker, J., and Friedlander, J. concur.




      1
        Effective July 1, 2014, Indiana Code Section 35-38-1-17 was amended in relevant part to remove the
      requirement that the prosecutor approve of any sentence modification. It is undisputed that the former
      version of the statute applies here.
      2
        In State v. Harper, 8 N.E.3d 694, 697 (Ind. 2014), our supreme court explained that, in the context of the
      former version of Indiana Code Section 35-38-1-17(b), a prosecutor’s acquiescence requires something more
      than mere inaction in the face of a defendant’s motion to modify his sentence. In Harper, the trial court held
      a hearing on the defendant’s motion to modify his sentence, and the court expressed its desire to modify the
      sentence should the prosecutor approve. The prosecutor requested time to consider the motion, and the trial
      court told the prosecutor to let the court know its position within one week. The prosecutor did not express
      any position to the trial court within the time allotted, and the court granted the motion. On appeal, our
      supreme court held that “the prosecutor’s conduct and communications adequately conveyed the ‘approval
      of the prosecuting attorney’ required in Indiana Code section 35-38-1-17(b), and that the trial court did not
      err in proceeding to grant the defendant’s motion for sentence modification.” Id.

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