MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                          FILED
court except for the purpose of establishing                                   Jun 04 2019, 8:46 am
the defense of res judicata, collateral                                            CLERK
estoppel, or the law of the case.                                              Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      Loren J. Comstock
Attorney General of Indiana                              Indianapolis, Indiana

George P. Sherman
Supervising Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        June 4, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-CR-2865
        v.                                               Appeal from the Madison Circuit
                                                         Court
Robert Lee Engram,                                       The Honorable Thomas Newman,
Appellee-Petitioner.                                     Jr., Judge

                                                         Trial Court Cause No.
                                                         48D03-0005-CF-128



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2865 | June 4, 2019                       Page 1 of 8
                                          Case Summary
[1]   In May of 2000, Robert Lee Engram conspired with Edward Partlow to kill one

      person and aided, induced, or caused Partlow to murder another person.

      Engram was convicted of conspiracy to commit murder and murder as an

      accomplice. On April 3, 2001, he was sentenced for these convictions to an

      aggregate term of eighty-five years. His convictions and sentence were

      subsequently affirmed. On August 2, 2018, Engram filed a petition for a

      sentence modification. The State objected to the requested modification.

      Despite the State’s objection, on September 5, 2018, the trial court granted the

      petition, modified Engram’s release date to January 14, 2019, and placed

      Engram in a community transition program. The State appealed, arguing that

      the trial court erred in granting Engram’s petition because Indiana Code section

      35-38-1-17(k) required the State’s consent to any modification of Engram’s

      sentence. We agree with the State. As such, we reverse the judgment of the

      trial court and remand with instructions for the trial court to enter an order

      denying Engram’s request for a sentence modification and reinstating Engram’s

      original sentence.



                            Facts and Procedural History
[2]   The facts relating to Engram’s convictions are as follows:


              Devito Wilson (“Wilson”) and the victim, Michelle Jones
              (“Jones”), had a child together, but had stopped dating by May 6,
              2000, the night Engram and [Partlow] went searching for
              Wilson. Engram and Wilson were enemies, and Engram had
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2865 | June 4, 2019   Page 2 of 8
        previously threatened to “blow [Wilson] off the map.” Engram
        and Partlow found Wilson, with Jones, at the Ramada Inn bar in
        Anderson and attempted to persuade him to come outside.
        When Wilson refused to come outside, Partlow and Engram left.
        After they drove away in Engram’s car, Engram said to Partlow,
        “Devito has to die tonight.” The two drove to the Autumn Ridge
        Apartments, where Engram retrieved a rifle from the apartment
        of the mother of his children. Engram and Partlow then drove to
        a friend’s house, where Partlow sawed off the barrel of the rifle
        under Engram’s direction.

        After putting the rifle into the trunk of the car, Engram and
        Partlow drove to the Oaks Apartments, where Jones lived,
        hoping to find Wilson. They entered the apartment; Partlow sat
        beside Jones on the couch, and Engram sat in a chair across the
        room. After an argument between Jones and Engram, Engram
        said to Partlow, “Why don’t you show her somethin’, Dog?”
        Partlow raised the gun to Jones’ head and looked at Engram.
        Engram gave Partlow a look that Partlow interpreted as “go
        ahead,” and Partlow shot Jones, killing her.

        Engram and Partlow returned to the house they shared with
        Monique Jones (“Monique”), and Partlow confessed to Monique
        that he had “just bl[own] Michelle’s brains out.”


Engram v. State, 48A02-0106-CR-387, at *2–3 (Ind. Ct. App. December 13,

2001) (“Engram I”). The State charged Engram with conspiracy to commit

murder; aiding, inducing, or causing murder (“murder”);1 and assisting a

criminal. Id. at *3. Following a bench trial, Engram was found guilty as




1
  Indiana Code section 35-41-2-4 provides that “[a] person who knowingly or intentionally aids, induces, or
causes another person to commit an offense commits that offense.” While the evidence establishes that
Partlow shot Jones, Engram was convicted of murder on a theory of accomplice liability.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2865 | June 4, 2019                     Page 3 of 8
      charged. Id. On April 3, 2001, the trial court sentenced Engram to an

      aggregate eighty-nine-year sentence.


                                           A. Direct Appeal
[3]   On appeal, Engram challenged the sufficiency of the evidence to sustain his

      convictions for conspiracy to commit murder and murder. Concluding that the

      evidence was sufficient to sustain the challenged convictions, we affirmed on

      appeal. Id. at * 4–6.


                          B. Request for Post-Conviction Relief
[4]   Engram subsequently sought post-conviction relief. Engram v. State, 48A02-

      0510-PC-1021, at *3 (Ind. Ct. App. April 21, 2006 (“Engram II”). On

      September 2, 2005, the post-conviction court issued an order vacating Engram’s

      conviction and sentence for assisting a criminal. Id. The post-conviction court

      otherwise denied Engram’s petition, leaving his convictions and aggregate

      eighty-five-year sentence for conspiracy to commit murder and murder in place.

      Id. On appeal, Engram alleged that “his appellate counsel was ineffective for

      failing to challenge the order for consecutive sentences because no valid

      aggravator supported it.” Id. at *6. We disagreed, concluding that


              [I]t is clear that the court imposed consecutive sentences because
              there were separate crimes against multiple victims. The
              identified aggravator has evidentiary support.… “It is a well
              established principle that the fact of multiple crimes or victims
              constitutes a valid aggravating circumstance that a trial court
              may consider in imposing consecutive or enhanced sentences.”
              O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2865 | June 4, 2019   Page 4 of 8
              Accordingly, the order for consecutive sentences would not have
              been reversed on appeal if counsel had raised the issue.… As
              such, the post-conviction court properly denied Engram post-
              conviction relief upon his claim of ineffectiveness of appellate
              counsel.


      Id. at * 6–7 (underlining in original).


                                C. Motion to Modify Sentence
[5]   On August 2, 2018, Engram filed a petition for a sentence modification. Soon

      thereafter, the Department of Correction (“DOC”) filed a report with the trial

      court indicating that Engram had satisfied his sentence on the conspiracy

      conviction on June 1, 2013, Engram was currently serving the sentence relating

      to his murder conviction, and his projected release date was December 1, 2040.

      During a hearing on Engram’s petition, the State objected to the requested

      modification. Despite the State’s objection, on September 5, 2018, the trial

      court granted the petition, modified Engram’s release date to January 14, 2019,

      and placed Engram in a community transition program. On September 17,

      2018, the State filed a motion to correct error. The State’s motion was deemed

      denied after the trial court failed to rule on the motion.



                                 Discussion and Decision
[6]   The State contends that the trial court erred by granting Engram’s petition for a

      sentence modification. “We review a trial court’s decision on a motion for

      sentence modification for abuse of discretion.” Newson v. State, 86 N.E.3d 173,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2865 | June 4, 2019   Page 5 of 8
      174 (Ind. Ct. App. 2017), trans. denied. “An abuse of discretion occurs when the

      trial court’s decision is clearly against the logic and effect of the facts and

      circumstances or it is a misinterpretation of the law.” Id.


[7]   Initially, we note that Engram argues that the trial court did not modify his

      sentence, but rather merely changed the venue where he was to serve the

      remainder of his sentence. We cannot agree. DOC documentation submitted

      to the trial court indicated that Engram’s projected release date was December

      1, 2040. The trial court’s order on Engram’s modification petition indicated

      that “[t]he court has suspended sufficient time to modify the [DOC] release date

      to 1/14/2019. Defendant’s approved for the Community Transition Program,

      effective 9/17/2018. Defendant’s modified [DOC] release date is 1/14/2019.”

      Appellant’s App. Vol. II p. 82. By modifying Engram’s release date to January

      14, 2019, the trial court clearly modified Engram’s sentence. 2 As such, we turn

      our attention to whether the trial court erred by doing so.


[8]   Indiana Code section 35-38-1-17, which governs the reduction and suspension

      of sentences, provides in relevant part:


              (a) … [T]his section applies to a person who:
                    (1) commits an offense; or




      2
        Pursuant to Indiana Code section 11-8-1-5.5, a person is committed to a community transition program
      “for a period after a person’s community transition program commencement date until the person completes the
      person’s fixed term of imprisonment, less the credit time the person has earned with respect to the term.”
      (Emphasis added). Thus, given that the trial court modified Engram’s release date for his fixed term of
      imprisonment to January 14, 2019, Engram’s placement in the community transition program would also
      end on that date.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2865 | June 4, 2019                      Page 6 of 8
                     (2) is sentenced;
              before July 1, 2014.
                                                  ****
              (d) As used in this section, “violent criminal” means a person
              convicted of any of the following offenses:
                      (1) Murder ([Ind. Code section] 35-42-1-1).
                                                  ****
              (k) This subsection applies to a convicted person who is a violent
              criminal. A convicted person who is a violent criminal may, not
              later than three hundred sixty-five (365) days from the date of
              sentencing, file one (1) petition for sentence modification under
              this section without the consent of the prosecuting attorney. After
              the elapse of the three hundred sixty-five (365) day period, a violent
              criminal may not file a petition for sentence modification without the
              consent of the prosecuting attorney.


      (Emphasis added).


[9]   We considered a similar fact pattern in Newson. In that case, Newson was

      found guilty of murder and Class C felony carrying a handgun without a license

      on December 3, 1997. Newson, 86 N.E.3d at 174. On January 8, 1998, he was

      sentenced to an aggregate seventy-three-year sentence. Id. On September 2,

      2016, Newson filed a motion to modify his sentence, requesting that the eight-

      year portion of his sentence imposed in relation to his Class C felony be served

      concurrently with his sixty-five-year sentence for murder. Id. The State

      objected, and the trial court denied Newson’s motion. Id. On appeal, we

      concluded as follows:


              As a violent criminal, [Newson] was not entitled to file a petition
              for sentence modification more than 365 days after his sentencing
              hearing without the consent of the prosecuting attorney. Newson

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2865 | June 4, 2019   Page 7 of 8
               was sentenced in January of 1998. He did not file his motion for
               a sentence modification until September 2, 2016, far more than
               365 days after he was sentenced. Pursuant to Indiana Code
               Section 35-38-1-17(k), the trial court could only grant Newson’s
               request for a modification of his sentence if Newson first
               obtained the consent of the prosecuting attorney. Given the
               prosecuting attorney’s objection, the trial court could not have
               granted Newson’s requested relief.


       Id.


[10]   Engram, like Newson, was convicted of murder and qualified under the statute

       as a violent criminal. As such, pursuant to Indiana Code section 35-38-1-17(k)

       any motion for a sentence modification filed more than 365 days after his

       sentencing hearing required the consent of the prosecuting attorney. Engram

       was sentenced on April 3, 2001. He did not file his petition for a sentence

       modification until August 2, 2018, far more than 365 days after he was

       sentenced. Given the prosecuting attorney’s objection to Engram’s petition, the

       trial court “could not have granted” the requested relief. Id. Therefore, trial

       court erred by modifying Engram’s sentence over the State’s objection. On

       remand, we instruct the trial court to enter an order denying Engram’s petition

       for a sentence modification and reinstating Engram’s original sentence.


[11]   The judgment of the trial court is reversed, and we remand with instructions.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2865 | June 4, 2019   Page 8 of 8
