      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                      Jan 29 2015, 9:40 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.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Samuel L. Hobbs, Jr.                                     Gregory F. Zoeller
      New Castle, Indiana                                      Attorney General of Indiana

                                                               Michael Gene Worden
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
      COURT OF APPEALS OF INDIANA

      Samuel L. Hobbs, Jr.,                                    January 29, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               18A05-1408-CR-394
              v.                                               Appeal from the Delaware Circuit
                                                               Court, The Honorable Marianne L.
                                                               Vorhees, Judge
      State of Indiana,                                        Cause No. 18C01-1007-FA-6
      Appellee-Plaintiff




      Najam, Judge.


                                         Statement of the Case
[1]   Samuel L. Hobbs, Jr. appeals the trial court’s denial of his petition to modify

      sentence. Hobbs raises two issues for our review, which we consolidate and



      Court of Appeals of Indiana | Memorandum Decision 18A05-1408-CR-394| January 29, 2015   Page 1 of 7
      restate as whether the trial court abused its discretion when it denied his

      petition. We affirm.


                                 Facts and Procedural History
[2]   The facts underlying Hobbs’ convictions were stated by this court in his direct

      appeal:

              In the fall of 2003, Hobbs met L.M. at work. Early in 2004, they
              became romantically involved. Throughout their relationship Hobbs
              lived in various locations and, while he never lived with L.M., he
              occasionally spent the night with her. In the fall of 2004, as their
              relationship began to subside, Hobbs insisted he needed L.M.’s help in
              overcoming his drug addiction. Hobbs did not see L.M. between
              February of 2005 and June 19, 2005, although they wrote each other
              and spoke on the phone.

              On June 19, 2005, Hobbs was released from prison. Hobbs and L.M.
              met at St. Francis church for the 9:00 a.m. service, after which L.M.
              drove Hobbs to cash a money order, then dropped him off at a
              Wendy’s restaurant. From there, L.M. went to visit her parents. She
              did not see or speak with Hobbs the rest of the day. Upon returning
              home, L.M. had several messages from Hobbs on her answering
              machine that “started out nice and seemed to end up very violent,
              hateful.” At 11:18 p.m., L.M. was awakened when she felt Hobbs
              crawling into bed with her. She told him to leave, but he refused and
              became physical, throwing her on her back, and eventually removing
              her pants and underwear, as well as his own clothing. Hobbs
              proceeded to put his finger in her vagina, followed by his penis. He
              later performed oral sex on her and penetrated her anally. L.M. fought
              Hobbs screaming and yelling for her neighbor, Lori Ford (Ford), all
              the while telling Hobbs to “stop, get off, leave me alone,” and that it
              “hurt.” Hobbs responded by telling her to shut up and covering her
              mouth with his hands. L.M. attempted to call 911, but Hobbs took the
              telephone from her and threw it. L.M. found the telephone under her
              bed the next day.



      Court of Appeals of Indiana | Memorandum Decision 18A05-1408-CR-394| January 29, 2015   Page 2 of 7
        While L.M.’s encounter with Hobbs was happening, Ford was
        walking her dog underneath L.M.’s open bedroom window. Ford
        heard loud, piercing screams coming from the window. Ford called
        911 to report that her neighbor was being attacked, and stayed on the
        line with the 911 operator until the police arrived.

        Officers Doug Narramore and Michael Shaffer (the Officers)
        responded to Ford’s 911 call. The Officers heard cries for help coming
        from L.M.’s window. The Officers also saw a man later identified as
        Hobbs in the window and heard him advise L.M. to tell them to leave.
        L.M. refused and proceeded outside as instructed by the Officers. The
        Officers entered L.M.’s home, located Hobbs, handcuffed him, and
        removed him from the home. Officer Rodney Frasier photographed
        the scene and obtained hair and blood samples from Hobbs. L.M. was
        taken to Ball Memorial Hospital where she underwent a physical
        examination, including whether there was evidence of a sexual
        trauma.

        That same evening between 11:00 and 11:30 p.m., Clark Tudor (Clark)
        was at home watching a basketball game when one of the two phone
        lines in his house rang; his wife Faye was asleep. He said hello, twice,
        but there was no response, so he just listened. He heard an unfamiliar
        female voice crying, “You’re hurting me,” and an equally ‘unfamiliar
        male voice saying, “Shut up. Shut up. Be quiet.” Then, he heard the
        woman scream, “unlike any other scream [he]’d ever heard in [his]
        life. It was a blood curdling scream.”

        Clark awoke his wife. He put the call on speakerphone in the kitchen
        where they both listened in on the call. Faye heard someone calling
        for Rory, or Lori as well as multiple screams, after which she went into
        the bedroom and called 911 on their other telephone line. She
        believed someone was “getting raped because it was really screaming.”
        The phone call was traced by the 911 supervisor to L.M.’s house.

        On June 22, 2005, the State filed an Information charging Hobbs with
        Count I, burglary resulting in bodily injury, a Class A felony, Count II,
        rape, a Class B felony, and Count III, criminal deviate conduct, a
        Class B felony. On January 10 through 12, 2006, a jury trial was held
        resulting in the following convictions: Count I, residential entry, a
        Class D felony; Count II, battery with bodily injury, a Class A

Court of Appeals of Indiana | Memorandum Decision 18A05-1408-CR-394| January 29, 2015   Page 3 of 7
              misdemeanor; and Count III, criminal deviate conduct, a Class B
              felony. On February 7, 2006, Hobbs was sentenced to three years on
              Count I, residential entry, one year on Count II, battery with bodily
              injury, and twenty years on Count III, criminal deviate conduct, with
              Count I to run consecutive to Count III and Count II to run
              concurrent to Count III for an aggregate sentence of 23 years.


      Hobbs v. State, No. 18A04-0602-CR-95, 2007 WL 166209 at *1-*2 (Ind. Ct. App.

      Jan. 24, 2007) (citations omitted). Hobbs’ trial counsel argued that L.M. had

      consented to the sexual activity. Accordingly, he sought and received an

      instruction for battery, as a Class A misdemeanor, as a lesser included offense

      of rape, as a Class B felony. The jury found Hobbs guilty of the battery and

      acquitted him of rape.


[3]   In his direct appeal, among other things Hobbs challenged the appropriateness

      of his sentence under Indiana Appellate Rule 7(B). We affirmed the trial

      court’s judgment on this and all other issues. On July 19, 2007, Hobbs filed his

      petition for post-conviction relief, which he later amended in July of 2010. The

      post-conviction court denied his petition on December 28, 2010. We affirmed

      the post-conviction court’s judgment on appeal.


[4]   On July 23, 2014, Hobbs filed his petition for modification of sentence pursuant

      to Indiana Code Section 35-38-1-17(c) (2014). The State objected, and the trial

      court denied Hobbs’ petition on August 11. This appeal ensued.


                                     Discussion and Decision
[5]   Hobbs appeals the trial court’s denial of his petition to modify his sentence

      pursuant to Indiana Code Section 35-38-1-17(c) (2014). We review a trial
      Court of Appeals of Indiana | Memorandum Decision 18A05-1408-CR-394| January 29, 2015   Page 4 of 7
      court’s decision to modify a sentence only for abuse of discretion. Gardiner v.

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

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

      circumstances before the court. Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct.

      App. 1999).


[6]   According to the provision of the Indiana Code relied on by Hobbs:

              If more than three hundred sixty-five (365) days have elapsed since the
              convicted person began serving the sentence, the court may reduce or
              suspend the sentence and impose a sentence that the court was
              authorized to impose at the time of sentencing. The court must
              incorporate its reasons in the record.


      Ind. Code § 35-38-1-17(c) (2014). But this provision became effective on July 1,

      2014, as part of our General Assembly’s overhaul of our criminal code pursuant

      to P.L. 158-2013 and P.L. 168-2014. It was not in effect at the time Hobbs

      committed his offense against L.M.; rather, the law in effect at that time stated

      in relevant part: “If more than three hundred sixty-five (365) days have elapsed

      since the defendant began serving the sentence and after a hearing at which the

      convicted person is present, the court may reduce or suspend the sentence,

      subject to the approval of the prosecuting attorney.” I.C. § 35-38-1-17(b) (2005)

      (emphasis added); see also Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008)

      (“The sentencing statute in effect at the time a crime is committed governs the

      sentence for that crime.”).




      Court of Appeals of Indiana | Memorandum Decision 18A05-1408-CR-394| January 29, 2015   Page 5 of 7
[7]   Despite Hobbs’ assertions to the contrary on appeal, there is no question that

      the current version of Indiana Code Section 35-38-1-17 does not apply to him.

      I.C. § 1-1-5.5-21 (“The general assembly does not intend the doctrine of

      amelioration . . . to apply to any SECTION of P.L. 158-2013 or P.L. 168-

      2014”); see also Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (“It is

      abundantly clear . . . that the General Assembly intended the new criminal code

      to have no effect on criminal proceedings for offenses committed prior to the

      enactment of the new code.”), trans. denied. Hobbs’ arguments to the contrary

      are without merit.1


[8]   Elsewhere in his appellate brief, Hobbs asserts that his convictions violate

      Indiana’s prohibitions against double jeopardy because they “stemmed from the

      same incident and were based upon the same facts.” Appellant’s Br. at 11.

      Hobbs also argues that his sentence violates the Proportionality Clause of

      Indiana’s Constitution, Ind. Const. art. 1 § 16, and is inappropriate under

      Indiana Appellate Rule 7(B). But these issues are not available to Hobbs in a

      motion for sentence modification and either have been or should have been

      raised on direct appeal. In particular, Hobbs’ Appellate Rule 7(B) claim was

      raised on direct appeal and rejected. “If an issue was known and available, but

      not raised[,] on direct appeal, it is waived. If it was raised on appeal[] but

      decided adversely, it is res judicata.” Timberlake v. State, 753 N.E.2d 591, 597




      1 Hobbs suggests that Indiana Code Section 1-1-5.5-21 is unconstitutional because it is either overbroad or
      vague. These suggestions are not supported by cogent reasoning, and we do not consider them. Ind.
      Appellate Rule 46(A)(8)(a).

      Court of Appeals of Indiana | Memorandum Decision 18A05-1408-CR-394| January 29, 2015              Page 6 of 7
      (Ind. 2001). Thus, we affirm the trial court’s denial of Hobbs’ petition for

      modification of sentence.


[9]   Affirmed.


      Mathias, J., and Bradford, J., concur.




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