      MEMORANDUM DECISION
                                                                                   FILED
      Pursuant to Ind. Appellate Rule 65(D),                                  Oct 06 2017, 11:02 am

      this Memorandum Decision shall not be                                        CLERK
      regarded as precedent or cited before any                                Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
      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
      Oscar F. Lopez                                           Curtis T. Hill, Jr.
      Pendleton, Indiana                                       Attorney General of Indiana
                                                               Henry A. Flores, Jr.
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Oscar F. Lopez,                                          October 6, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A05-1704-CR-744
              v.                                               Appeal from the Elkhart Circuit
                                                               Court
      State of Indiana,                                        The Honorable Michael A.
      Appellee-Plaintiff.                                      Christofeno, Judge
                                                               Trial Court Cause No.
                                                               20C01-0906-FA-15



      Mathias, Judge.


[1]   Oscar Lopez (“Lopez”) appeals pro se the Elkhart Circuit Court’s denial of his

      motion to modify his sentence.


      Court of Appeals of Indiana | Memorandum Decision 20A05-1704-CR-744 | October 6, 2017            Page 1 of 5
[2]   We affirm.


                                   Facts and Procedural History
[3]   On January 8, 2010, Lopez pleaded guilty to two counts of Class A felony

      dealing in cocaine. For each count, the trial court ordered Lopez to serve

      concurrent terms of thirty-five years with ten years suspended to probation.


[4]   Prior to the motion at issue in this appeal, Lopez unsuccessfully filed motions

      to modify his sentence and/or placement in October 2012, January 2014,

      March 2014, February 2015, March 2015, December 2015, and January 2016.

      On February 3, 2017, Lopez filed his eighth motion to modify his sentence.


[5]   In his motion, Lopez asked the trial court to allow him to serve the remainder

      of his sentence on probation.1 Lopez listed the programs he had participated in

      during his incarceration and explained that he “made substantial efforts to

      rehabilitate [himself] during the term of [his] incarceration.” Appellant’s App.

      p. 13. Lopez, who is not a United States citizen, also argued that it would “be

      in the best interest of this court and the State of Indiana to grant [his] request for

      modification of placement” because he has “an immigration hold.” Id.




      1
       Lopez informed the trial court that the remaining executed portion of his sentence was three years and four
      months.

      Court of Appeals of Indiana | Memorandum Decision 20A05-1704-CR-744 | October 6, 2017             Page 2 of 5
[6]   Upon receiving the motion, the trial court ordered a progress report from the

      Department of Correction. The trial court reviewed the report and denied

      Lopez’s motion to modify his sentence and/or placement. Lopez now appeals.


                                     Discussion and Decision
[7]   We review a trial court’s decision to deny a motion to modify a sentence only

      for an abuse of discretion. Carr v. State, 33 N.E.3d 358, 358–59 (Ind. Ct. App.

      2015), trans. denied. An abuse of discretion occurs only when the trial court’s

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

      before the court.” Id. at 359. Lopez argues that the trial court abused its

      discretion when it denied his motion to modify his sentence and/or placement

      because he has completed rehabilitative programs during his incarceration and

      is not in need of further rehabilitation.


[8]   A trial judge generally has no authority over a defendant after sentencing.

      Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015) (citing State v.

      Harper, 8 N.E.3d 694, 696 (Ind. 2014)), trans. denied. One 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.


[9]   Indiana Code section 35-38-1-17 was amended in 2015 to provide that it applies

      to defendants who committed their offenses or were sentenced before July 1,

      2014. See P.L. 164-2015, § 2 (effective May 5, 2015); see also Woodford v. State, 58

      N.E.3d 282, 285 (Ind. Ct. App. 2016) (discussing history of section 35-38-1-17).

      Thus, Section 35-38-1-17, as amended, applies to Lopez.

      Court of Appeals of Indiana | Memorandum Decision 20A05-1704-CR-744 | October 6, 2017   Page 3 of 5
[10]   After a convicted person begins serving his sentence and the court obtains a

       report concerning the convicted person’s conduct while imprisoned, the statute

       allows a trial court to “reduce or suspend the [convicted person’s] sentence and

       impose a sentence that the court was authorized to impose at the time of

       sentencing.” I.C. § 35-38-1-17(e). However, the trial court’s authority to modify

       the convicted person’s sentence is limited by subjection (j)(2) of the statute.

       Subjection (j) provides:

                  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;

                  without the consent of the prosecuting attorney.


       I.C. § 35-38-1-17(j) (emphasis added).2


[11]   The appealed motion to modify is the third motion that Lopez has filed since

       May 5, 2015, the effective date of the last amendment to the statute.3 Therefore,

       Lopez was not permitted to file a motion without consent of the prosecuting




       2
           Lopez is classified a nonviolent criminal under the statute. I.C. § 35-38-1-17(d).
       3
         In Woodford v. State, 58 N.E.3d 282 (Ind. Ct. App. 2016), our court held that the limitation imposed under
       subjection (j) applies only to petitions for sentence modifications filed after May 5, 2015, the effective date of
       the amendment. Id. at 286–87 (rejecting the State’s argument that the trial court lacked authority to entertain
       Woodford’s petition because the three petitions he filed before May 5, 2015, should count against the limits
       imposed in section 35-58-1-17(j)).

       Court of Appeals of Indiana | Memorandum Decision 20A05-1704-CR-744 | October 6, 2017                  Page 4 of 5
       attorney. I.C. § 35-38-1-17(j); Woodford, 58 N.E.3d at 283 n.4 (stating that when

       it is required under section 35-38-1-17(j), prosecutorial consent to a sentence

       modification is a procedural condition precedent to the court’s exercise of

       authority under the statute). Because the State did not give its consent, the trial

       court properly denied Lopez’s motion to modify his sentence.


[12]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




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