MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Sep 26 2016, 9:46 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Jeffrey B. Buskirk                                       Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana

                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey B. Buskirk,                                      September 26, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         55A01-1602-CR-271
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Jack A. Tandy,
Appellee-Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         55D02-9702-CF-43



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 1 of 10
[1]   In early 1998, Appellant-Petitioner Jeffrey B. Buskirk pled guilty to the murder

      of his step-mother. Buskirk was subsequently sentenced to a sixty-year term of

      imprisonment. On August 24, 2015, Buskirk filed a petition seeking a

      modification of his sentence. Appellee-Respondent the State of Indiana (the

      “State”) filed a written response in opposition to Buskirk’s petition on

      November 2, 2015. The State reiterated that it opposed Buskirk’s petition

      during the December 29, 2015 hearing held in connection to Buskirk’s petition.

      The trial court denied Buskirk’s petition in a written order dated January 13,

      2016.


[2]   On appeal, Buskirk contends that the trial court abused its discretion in denying

      his petition for modification of his sentence. Buskirk also contends that the

      deputy prosecuting attorney assigned to his case committed prosecutorial

      misconduct. Concluding that Buskirk has failed to prove either that the trial

      court abused its discretion in denying his petition or that the deputy prosecuting

      attorney committed prosecutorial misconduct, we affirm.



                            Facts and Procedural History
[3]   On January 26, 1998, Buskirk pled guilty to murdering his step-mother.

      Buskirk was eighteen years old at the time he committed the murder. On

      March 6, 1998, Buskirk was sentenced to a sixty-year term of incarceration.




      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 2 of 10
[4]   Buskirk filed a petition for a modification of his sentence on August 25, 2015. 1

      The State filed a written response in opposition to Buskirk’s petition on

      November 2, 2015. The trial court conducted a hearing on Buskirk’s petition

      on December 29, 2015. During this hearing, the State reiterated that it was

      opposed to any sentence modification. On January 13, 2016, the trial court

      issued an order denying Buskirk’s petition for a modification of his sentence.

      This appeal follows.



                                 Discussion and Decision
      I. Denial of Buskirk’s Petition for Sentence Modification
[5]   Buskirk contends that the trial court abused its discretion in denying his petition

      for a modification of his sentence. A trial court’s decision regarding a petition

      for a modification of a sentence is reviewed for an abuse of discretion. Gardiner

      v. State, 928 N.E.2d 194, 196 (Ind. 2010). An abuse of discretion occurs where

      the decision is clearly against the logic and effect of the facts and circumstances

      or when the trial court misinterprets the law. Heaton v. State, 984 N.E.2d 614,

      616 (Ind. 2013).


[6]   Buskirk claims that the State’s objection to his petition for a sentence

      modification was untimely because it was not filed within twenty days of his




      1
       This was the second petition for a sentence modification filed by Buskirk. The first petition
      was filed by Buskirk and denied by the trial court in 2012.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 3 of 10
      petition. Buskirk relies on Indiana Rule of Trial Procedure 12(B). Trial Rule

      12(B) provides that any defense to a claim raised in any pleading should be filed

      “within twenty (20) days after service of the prior pleading[.]” The time

      limitation set forth in Trial Rule 12(B) explicitly refers to the time allowed for

      raising defenses to claims raised in pleadings. Trial Rule 7 provides that the

      pleadings shall consist of: “(1) a complaint and an answer; (2) a reply to a

      denominated counterclaim; (3) an answer to a cross-claim; (4) a third-party

      complaint, if a person not an original party is summoned under the provisions

      of Rule 14; and (5) a third-party answer.” Trial Rule 7 further provides that,

      unless made during a hearing or trial, all other requests of the court shall be

      made by written motion. “The motion shall state the grounds therefor and the

      relief or order sought.” T.R. 7. As it does not qualify as any of the types of

      pleadings specified by Trial Rule 7, a request for a sentence modification

      qualifies as a motion before the trial court, not a pleading.


[7]   Indiana Code section 35-38-1-17 outlines when an incarcerated individual can

      request a sentence modification. The version of the statute that was in effect at

      the time that Buskirk committed the murder of his step-mother, pled guilty, and

      was sentenced provides that when a convicted person waits more than 365 days

      after beginning to serve their sentence, any modification of the individual’s

      sentence may only be made “subject to the approval of the prosecuting

      attorney.” Ind. Code § 35-38-1-17(b) (1996). In addition, the version of

      Indiana Code section 35-38-1-17 which was in effect when Buskirk filed his




      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 4 of 10
      petition also requires consent from the prosecuting attorney.2 Neither version of

      Indiana Code section 35-38-1-17 provides any time limitation in which a

      prosecuting attorney must file his or her consent or objection to such a request.


[8]   In early 1998, Buskirk pled guilty to and was convicted of the murder of his

      step-mother. On March 6, 1998, the trial court sentenced Buskirk to a sixty-

      year term of incarceration. Buskirk filed his petition requesting a modification

      of his sentence on August 24, 2015. Because Buskirk’s request was filed more

      than 365 days after he was sentenced, Buskirk was required to obtain the

      prosecuting attorney’s consent before he could receive any modification of his

      sentence. See Ind. Code § 35-38-1-17. On November 2, 2015, the prosecuting

      attorney filed a written objection to Buskirk’s request for a modification of his

      sentence. The trial court conducted a hearing on Buskirk’s request on

      December 29, 2015, at which time the prosecuting attorney reiterated his

      objection to Buskirk’s request. Buskirk has failed to establish on appeal that the

      prosecuting attorney’s objection to his request for a sentence modification was

      untimely. As such, we conclude that in light of the prosecuting attorney’s

      objection to Buskirk’s request, the trial court did not abuse its discretion in

      denying Buskirk’s request for a modification of his sixty-year sentence.




      2
        This version provides that when a violent criminal waits more than 365 days after being
      sentenced to file a request for a sentence modification, the individual “may not file a petition
      for sentence modification without the consent of the prosecuting attorney.” Ind. Code § 35-38-
      1-17(k) (2015). The term “violent criminal” includes an individual convicted of the offense of
      murder. Ind. Code § 35-38-1-17(d).

      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 5 of 10
                               II. Prosecutorial Misconduct
[9]   Buskirk also contends that the deputy prosecuting attorney committed

      prosecutorial misconduct. Buskirk raises this contention for the first time on

      appeal. With regard to the appropriate standard of review for a claim of

      prosecutorial misconduct that is raised for the first time on appeal, the Indiana

      Supreme Court has held as follows:


              Our standard of review is different where a claim of prosecutorial
              misconduct has been procedurally defaulted for failure to
              properly raise the claim in the trial court, that is, waived for
              failure to preserve the claim of error. Booher v. State, 773 N.E.2d
              814, 817-18 (Ind. 2002). The defendant must establish not only
              the grounds for prosecutorial misconduct but must also establish
              that the prosecutorial misconduct constituted fundamental error.
              Id. at 818. Fundamental error is an extremely narrow exception
              to the waiver rule where the defendant faces the heavy burden of
              showing that the alleged errors are so prejudicial to the
              defendant’s rights as to “make a fair trial impossible.” Benson v.
              State, 762 N.E.2d 748, 756 (Ind.2002), quoted in [Castillo v. State,
              974 N.E.2d 458, 468 Ind. 2012)] and [Cooper v. State, 854 N.E.2d
              831, 835 (Ind. 2006)]. In other words, to establish fundamental
              error, the defendant must show that, under the circumstances,
              the trial judge erred in not sua sponte raising the issue because
              alleged errors (a) “constitute clearly blatant violations of basic
              and elementary principles of due process” and (b) “present an
              undeniable and substantial potential for harm.” Id. The element
              of such harm is not established by the fact of ultimate conviction
              but rather “depends upon whether [the defendant’s] right to a fair
              trial was detrimentally affected by the denial of procedural
              opportunities for the ascertainment of truth to which he
              otherwise would have been entitled.” Townsend v. State, 632
              N.E.2d 727, 730 (Ind. 1994) (quoting Hart v. State, 578 N.E.2d
              336, 338 (Ind. 1991)). In evaluating the issue of fundamental

      Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 6 of 10
               error, our task in this case is to look at the alleged misconduct in
               the context of all that happened and all relevant information …
               to determine whether the misconduct had such an undeniable
               and substantial effect … [such] that a fair trial was impossible.
               See Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002); Townsend,
               632 N.E.2d at 730; see, e.g., Castillo, 974 N.E.2d at 469 n. 11
               (noting closing arguments are perceived as partisan advocacy).

               We stress that “[a] finding of fundamental error essentially
               means that the trial judge erred ... by not acting when he or she
               should have....” Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012).
               Fundamental error is meant to permit appellate courts a means to
               correct the most egregious and blatant trial errors that otherwise
               would have been procedurally barred, not to provide a second
               bite at the apple for defense counsel who ignorantly, carelessly,
               or strategically fail to preserve an error. See Baer v. State, 942
               N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to
               prevail on a claim of fundamental error relating to prosecutorial
               misconduct); Stevens v. State, 691 N.E.2d 412, 420 n. 2 (Ind.
               1997); Wilson v. State, 222 Ind. 63, 83, 51 N.E.2d 848, 856 (1943).


       Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (emphases in original, footnotes

       omitted).


[10]   Buskirk claims that the deputy prosecuting attorney committed prosecutorial

       misconduct by misleading Buskirk’s father. Specifically, Buskirk argues that the

       deputy prosecuting attorney led his father to believe that he would consent to a

       sentence modification only to subsequently object to Buskirk’s petition. The

       record, however, does not support Buskirk’s claim.


[11]   With regards to his conversations with the deputy prosecuting attorney prior to

       the hearing on Buskirk’s petition, Buskirk’s father testified as follows:

       Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 7 of 10
        But it was my understanding with [the prosecuting attorney] and
        on the phone with [the deputy prosecuting attorney], they would
        at least agree with this hearing, at least let him present his own
        case. And that was something that I told them several times. I
        thought it was time for him. He deserved the chance to at least
        present to you to see if you think he’s grown or not.


Tr. p. 47. Additionally, the following exchange took place between Buskirk’s

father and the deputy prosecuting attorney on cross-examination:


        Q:    Okay. And you made some reference about that you
        thought that this hearing was consented to. That the prosecution
        has consented to this hearing today?

        A:       Yes.

        Q:     That was at least what you understood at the time, is that
        correct?

        A:      Yes.… [B]ut basically, as I understood the law and what
        [the prosecuting attorney] and I talked about was if no .. if you
        guys didn’t agree to some kind of a hearing to give the Judge a
        chance to hear the evidence, there’s nothing can be done. And
        my understanding from talking to [the prosecuting attorney], and
        from you, and he kept referring me to you, continuously, call [the
        deputy prosecuting attorney] back. I always never knew for sure
        your status, so I didn’t ever want to bother you, without [the
        prosecuting attorney] saying to do that. And so .. yes, I thought
        that was an agreement that you guys would finally let him have a
        hearing date, not agree with anything, that that’s not what you were
        doing at all, but you’d at least let the Judge hear the evidence and
        see if the Judge felt like he might deserve a break or a lower case
        of the sentence.


Tr. pp. 54-55 (emphasis added). Buskirk’s father further testified that

Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 8 of 10
               But, I don’t think I recall specifically you said it was too early to
               have another hearing. Because if it had been .. if I had got that
               idea from our conversation, I would have tried to tell [Buskirk’s
               mother] or anybody else, don’t waste your money yet. And if I
               didn’t pick that up with my brain injury, sometimes not
               everything would come through, and I would apologize if that
               was your intention on that conversation.


       Tr. p. 56.


[12]   The above-quoted testimony indicates that, at most, the deputy prosecuting

       attorney agreed to allow for a hearing on Buskirk’s petition. The above-quoted

       testimony does not establish that the deputy prosecuting attorney agreed to a

       sentence modification or that Buskirk’s father believed that the deputy

       prosecuting attorney had indicated that he would consent to a sentence

       modification. Because the record does not support Buskirk’s claim that the

       deputy prosecuting attorney misled his father to believe that the deputy

       prosecuting attorney would consent to Buskirk’s petition, we conclude that

       Buskirk has failed to establish fundamental error. We therefore further

       conclude that Buskirk has failed to prove that the deputy prosecuting attorney

       committed prosecutorial misconduct.3




       3
         Furthermore, to the extent that Buskirk relies on his counsel’s statement that he believed that
       “with the new laws that we felt that was an issue that was not an issue for objection,” tr. p. 4,
       this statement seems to refer to changes in the law relating to sentence modifications that were
       briefly in effect and not to any agreement by the deputy prosecuting attorney that he would
       consent to the requested sentence modification. As it stands, the law that was in effect both at
       the time Buskirk committed the murder of his step-mother and at the time he filed the underlying
       petition for a sentence modification required consent of the prosecuting attorney before any
       request for a sentence modification may be granted.
       Court of Appeals of Indiana | Memorandum Decision 55A01-1602-CR-271 | September 26, 2016   Page 9 of 10
                                               Conclusion
[13]   In sum, we conclude that the trial court did not abuse its discretion in denying

       Buskirk’s petition for a sentence modification. We also conclude that Buskirk

       has failed to prove that the deputy prosecuting attorney committed

       prosecutorial misconduct. As such, we affirm the judgment of the trial court.


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


       Pyle, J., and Altice, J., concur.




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