MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Mar 18 2020, 10:28 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Angus Toney                                              Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Angus Toney,                                             March 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2907
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Kolger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89C01-1010-FA-12



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020                 Page 1 of 6
                                          Case Summary
[1]   Angus Toney (“Toney”), acting pro se, appeals his sentences for robbery, as a

      Class B felony,1 and burglary, as a Class A felony.2 We affirm.



                                                   Issues
[2]   Toney raises the following two restated issues on appeal:


                 1.       Whether the trial court abused its discretion when it
                          denied his petition to modify his sentence.


                 2.       Whether his sentence is inappropriate in light of the nature
                          of the offense and his character.


                                Facts and Procedural History
[3]   This Court discussed the facts of this case in Toney’s direct appeal:


                 On the evening of July 19, 2010, Toney and his accomplice,
                 Chris Gregory (“Gregory”), entered into the home of G.R. while
                 wearing bandanas over their faces. Once inside the home, Toney
                 approached G.R., who was with her son C.R. Toney ordered
                 C.R. to the floor and put his foot on the back of the boy’s head.
                 Toney put his knife to C.R.’s throat and told G.R. to “shut up”
                 as he demanded her purse, money, and drugs. When she
                 realized that she was still holding her mobile phone, G.R.
                 attempted to dial 911. When Toney saw this, he grabbed G.R.’s




      1
          Ind. Code § 35-42-5-1 (2010).
      2
          I.C. § 35-43-2-1(2) (2010).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020     Page 2 of 6
              hand, twisted the phone out of her hand, and threw the phone
              across the room. G.R. later testified that this caused her pain.
              G.R.’s other son heard his mother screaming and came
              downstairs with a baseball bat. He struck Toney in the head with
              the bat, causing Toney to bleed. Toney left and sought treatment
              at the hospital. Drops of Toney’s blood were found at G.R.’s
              house. DNA evidence obtained from this blood was later
              determined to match Toney.


              On October 25, 2010, the State charged Toney with Class A
              felony burglary resulting in bodily injury and Class B felony
              robbery. Toney admitted to committing Class B felony burglary
              and Class B felony robbery, but a bench trial was held on the
              issue of whether the burglary resulted in bodily injury, which
              would elevate the burglary to a Class A felony. On July 25,
              2011, the trial court found Toney guilty of Class A felony
              burglary. The trial court sentenced Toney to forty years on the
              Class A felony burglary conviction and to a concurrent term of
              sixteen years on the Class B felony robbery conviction. Toney
              now appeals.


      Toney v. State, 961 N.E.2d 57, 58 (Ind. Ct. App. 2012). We affirmed. Id. at 61.


[4]   On August 19, 2019, Toney filed a motion to modify his sentence, and the trial

      court denied that motion on September 17, 2019. This appeal ensued.



                                Discussion and Decision
                                Motion to Modify Sentence
[5]   Toney contends the trial court erred when it denied his August 19, 2019,

      petition to modify his sentence. We review a trial court’s decision regarding

      sentence modification for an abuse of discretion. Gardiner v. State, 928 N.E.2d
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020   Page 3 of 6
      194, 196 (Ind. 2010). “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.” Newson v. State, 86 N.E.3d 173, 174 (Ind.

      Ct. App. 2017) (citing Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014), trans.

      denied. However, we review matters of statutory interpretation de novo.

      Gardiner, 928 N.E.2d at 196.


[6]   Indiana Code Section 35-38-1-17 governs the reduction and suspension of

      sentences and applies to defendants who committed their offenses or were

      sentenced before July 1, 2014. Subsection (k) provides that,


              “not later than three hundred sixty-five (365) days from the date
              of sentencing,” a violent criminal may file one motion for
              sentence modification without the consent of the prosecuting
              attorney. After 365 days, a violent criminal is ineligible to move
              for sentence modification without the prosecuting attorney’s
              consent. I.C. § 35-38-1-17(k).


      Newson, 86 N.E.3d at 174. A “violent criminal” is defined as a person

      convicted of certain enumerated offenses, including robbery, as a Class B

      felony, and burglary, as a Class A felony. I.C. § 35-38-1-17(d)(12), (13).


[7]   Because (1) Toney was convicted of robbery, as a Class B felony, and burglary,

      as a Class A felony, and is therefore a “violent criminal” as defined by the

      statute; (2) he committed, and was sentenced for, his offenses before July 1,

      2014; and (3) more than 365 days have passed since the date of his sentencing,

      he is ineligible to file a petition for sentence modification without the

      prosecuting attorney’s consent. See I.C. § 35-38-1-17(a), (d), (k). The
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020   Page 4 of 6
      prosecuting attorney did not consent to Toney’s filing of a motion for sentence

      modification. Therefore, the trial court was without authority to modify

      Toney’s sentence and did not err in denying his motion. Id.; see also Newson, 86

      N.E.3d at 174; Manley v. State, 868 N.E.2d 1175, 1179 (Ind. Ct. App. 2007)

      (citing State v. Fulkrod, 753 N.E.2d 630 (Ind. 2001)), trans. denied.


[8]   Nor is Toney entitled to a revision of his sentence under the doctrine of

      amelioration, as he seems to argue. Toney asserts that, because the penalty for

      his crimes was decreased by 2014 amendments to the statute, he is entitled to

      the decreased penalty. Ind. Code § 35-38-1-17 (2014); P.L. 168-2014, Sec. 58,

      eff. July 1, 2014. However, generally, a defendant must be sentenced under the

      statute in effect at the time the defendant committed the crime. Harris v. State,

      897 N.E.2d 927, 928-29 (Ind. 2008). Under the doctrine of amelioration, there

      is an exception to that rule when the penalty for the crime is decreased by an

      amendment enacted after commission of the crime but prior to sentencing. Brown

      v. State, 947 N.E.2d 486, 489 n.4 (Ind. Ct. App. 2011) (citing Pritscher v. State,

      675 N.E.2d 727, 733-34 (Ind. Ct. App. 1996)), trans. denied. Here, it is clear that

      (1) Toney committed his crimes in 2010; (2) Toney was sentenced for those

      crimes in 2011; and (3) the penalty for those crimes was not reduced by

      statutory amendments until 2014, well after Toney had already been sentenced.

      Thus, the doctrine of amelioration is inapplicable.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020   Page 5 of 6
                                        Appellate Rule 7(B)
[9]    Toney contends that his sentence is inappropriate in light of the nature of the

       offense and his character, and that we should therefore revise his sentence

       pursuant to our authority under Article 7, Sections 4 and 6 of the Indiana

       Constitution and Indiana Appellate Rule 7(B). However, when an issue is

       known and available but not raised on direct appeal, it is waived. See, e.g.,

       Taylor v. State, 840 N.E.2d 324, 330-31 (Ind. 2006). This includes claims that a

       sentence was manifestly unreasonable. Id. Toney’s Rule 7(B) claim was

       available to him on his direct appeal, but he did not raise it. Toney, 961 N.E.2d

       57. Therefore, he has waived that issue.



                                               Conclusion
[10]   The trial court did not err in refusing to modify Toney’s sentence; rather, it had

       no authority to do so given that more than 365 days had passed since the date

       of his pre-July 1, 2014 sentencing and he did not have consent from the

       prosecuting attorney to file a petition for sentence modification. I.C. § 35-38-1-

       17(a), (d), (k). And Toney has waived his claim that his sentence should be

       revised because it was inappropriate, as that claim was available but not raised

       in his direct appeal. Taylor, 830 N.E.2d at 330-31.


[11]   Affirmed.


       Crone, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020   Page 6 of 6
