MEMORANDUM DECISION                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                          Apr 08 2019, 10:43 am

this Memorandum Decision shall not be                                                CLERK
                                                                                 Indiana Supreme Court
regarded as precedent or cited before any                                           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.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Bryan L. Cook                                             Curtis T. Hill, Jr.
Carmel, Indiana                                           Attorney General of Indiana

                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David Scudder,                                            April 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2516
        v.                                                Appeal from the Decatur Circuit
                                                          Court
State of Indiana,                                         The Honorable Timothy B. Day,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Gary L. Smith,
                                                          Special Judge
                                                          Trial Court Cause No.
                                                          16C01-0807-FD-204



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019                     Page 1 of 12
[1]   In 2010, David Scudder was convicted of two Class D felonies, theft and

      official misconduct. In 2016, the trial court, upon Scudder’s motion, converted

      the theft conviction from a Class D felony to a Class A misdemeanor. In 2018,

      Scudder filed a Petition to Modify Sentence to Reduce Conviction to a

      Misdemeanor, asking the trial court to reduce his conviction for official

      misconduct from a Class D felony to a Class A misdemeanor. Following a

      hearing, the trial court denied Scudder’s petition. Scudder raises one issue on

      appeal that we restate as: whether the trial court properly concluded that it did

      not have statutory authority to reduce the Class D felony conviction for official

      misconduct to a Class A misdemeanor.


[2]   We affirm.


                                   Facts & Procedural History
[3]   On the afternoon of June 21, 2008, a man was at the Walmart in Greensburg,

      Indiana, posing as professional wrestler Stone Cold Steve Austin and signing

      autographs, for which people paid $10.00 per autograph. Another man, Ronald

      Owens, was the promoter of the event and had arranged it with Walmart. After

      less than an hour, Walmart management became suspicious that the purported

      professional wrestler was not, in fact, Stone Cold Steve Austin. Believing that

      Owens had perpetrated a fraud upon Walmart and its customers, Walmart

      management called the Greensburg Police Department (GPD). The claimed

      professional wrestler fled before officers arrived to investigate. Among the

      officers dispatched to the scene was Scudder, who was a seven-year veteran of

      the GPD.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 2 of 12
[4]   Owens cooperated at the scene and turned over to Scudder $166.00 in cash that

      Owens had collected for autographs and tickets to a separate wrestling

      performance. Ultimately, Scudder failed to place the money into GPD’s

      evidence storage room after receiving it from Owens, and the State charged

      Scudder with Class D felony theft and Class D felony official misconduct.

      Following a jury trial, Scudder was found guilty as charged on February 8,

      2010. Scudder was eligible for alternative minimum sentencing such that his

      convictions could have been entered as misdemeanors, but the trial court

      entered judgment of conviction as two Class D felonies. The court sentenced

      Scudder to one and one-half years on each conviction, to run concurrently, with

      thirty days executed and the remainder suspended to probation. Scudder

      appealed, alleging that the evidence was insufficient to convict him, and this

      court affirmed his convictions by memorandum decision. Scudder v. State, No.

      16A04-1104-CR-207 (Ind. Ct App. Feb. 8, 2012).


[5]   In November 2014, Scudder filed a motion, later amended, to convert “his

      Class D Felony Conviction to a Class A Misdemeanor conviction” 1 pursuant to

      Ind. Code § 35-50-2-7. Appellant’s Appendix Vol. 2 at 16, 18. Scudder’s motion

      noted that he had completed his sentence on or before December 2010 and had

      no pending criminal charges. After a number of continuances, the matter came

      for a hearing in November 2015. The trial court observed that “specifically, the




      1
       We note that the motion was written in terms of converting a singular conviction, but did not identify
      which of the two felony convictions he was seeking to convert to a misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019                    Page 3 of 12
portion of the statute we’re looking at is [35-50-2]-7(d)” and that, under that

subsection, “official misconduct is one” of the statute’s listed offenses that a

trial court is not permitted to convert to a misdemeanor. Transcript Vol. 2 at 4-5.

I.C. § 35-50-2-7(d) provides, in relevant part:


        [T]he sentencing court may convert a Class D felony conviction
        (for a crime committed before July 1, 2014) or a Level 6 felony
        conviction (for a crime committed after June 30, 2014) to a Class
        A misdemeanor conviction if, after receiving a verified petition as
        described in subsection (e) and after conducting a hearing of
        which the prosecuting attorney has been notified, the court
        makes the following findings:


        (1) The person is not a sex or violent offender (as defined in IC
        11-8-8-5).


        (2) The person was not convicted of a Class D felony (for a crime
        committed before July 1, 2014) or a Level 6 felony (for a crime
        committed after June 30, 2014) that resulted in bodily injury to
        another person.


        (3) The person has not been convicted of perjury under IC 35-
        44.1-2-1 (or IC 35-44-2-1 before its repeal) or official misconduct
        under IC 35-44.1-1-1 (or IC 35-44-1-2 before its repeal).


        (4) At least three (3) years have passed since the person:


                 (A) completed the person’s sentence; and


                 (B) satisfied any other obligation imposed on the person as
                 part of the sentence;



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 4 of 12
              for the Class D or Level 6 felony.


              (5) The person has not been convicted of a felony since the
              person:


                       (A) completed the person’s sentence; and


                       (B) satisfied any other obligation imposed on the person as
                       part of the sentence;


              for the Class D or Level 6 felony.


              (6) No criminal charges are pending against the person.


      At the conclusion of the hearing, the trial court found that Scudder had

      “satisfied the statutory requirements . . . under Section (d)” and stated that,

      upon submission of a proposed order, would grant relief. Transcript Vol. 2 at 6.

      In January 2016, the trial court issued an order granting Scudder’s motion “as

      to Count I Theft only,” converting that conviction to a Class A misdemeanor.


[6]   On February 13, 2018, Scudder filed the Petition to Modify Sentence to Reduce

      Conviction to a Misdemeanor (Petition), asking the trial court to “reduce” the

      Class D felony official misconduct conviction to a Class A misdemeanor.

      Appellant’s Appendix Vol. 2 at 23. Scudder’s Petition sought relief under I.C. §

      35-38-1-17 and I.C. § 35-50-2-7(c), specifically noting that he was asking for




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 5 of 12
      relief under “subsection (C) of IC 35-50-2-7 not (D).” 2 Id. Scudder’s position

      was that the trial court could reduce the felony official misconduct conviction

      “by the tandem application of IC 35-38-1-17 and IC 35-50-2-7(c)[.]” Id. at 26.


[7]   Scudder noted that, after he was sentenced, Indiana’s legislature “created a

      much more gracious sentence modification statute under IC 35-38-1-17 that

      now allows for sentence modification for most offenses (including the offense in

      question) well after one year from the date of sentencing and without the State’s

      consent.” Id. In particular, he relied on I.C. § 35-38-l-17(e), which provides

      that “at any time after a convicted person begins serving the person’s 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.” I.C. § 35-50-2-7(c) is

      the other statute in the “tandem” analysis, and it provides in relevant part:


               [I]f a person has committed a Class D felony (for a crime
               committed before July 1, 2014) or a Level 6 felony (for a crime
               committed after June 30, 2014), the court may enter judgment of
               conviction of a Class A misdemeanor and sentence accordingly.
               However, the court shall enter a judgment of conviction of a
               Class D felony (for a crime committed before July 1, 2014) or a
               Level 6 felony (for a crime committed after June 30, 2014) if:


               (1) the court finds that:




      2
       Scudder acknowledged that the trial court’s January 2016 order that granted conversion as to only the theft
      conviction was proper because then-counsel had sought relief under I.C. § 35-50-2-7(d), and that subsection
      “specifically exclude[s] several offenses including [o]fficial [m]isconduct.” Appellant’s Appendix Vol. 2 at 24.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019                       Page 6 of 12
                       (A) the person has committed a prior, unrelated felony for
                       which judgment was entered as a conviction of a Class A
                       misdemeanor; and


                       (B) the prior felony was committed less than three (3) years
                       before the second felony was committed;


              (2) the offense is domestic battery as a Class D felony (for a crime
              committed before July 1, 2014) or a Level 6 felony (for a crime
              committed after June 30, 2014) under IC 35-42-2-1.3; or


              (3) the offense is possession of child pornography (IC 35-42-4-
              4(d)).


              The court shall enter in the record, in detail, the reason for its
              action whenever it exercises the power to enter judgment of
              conviction of a Class A misdemeanor granted in this subsection.


[8]   The State’s response asserted that neither of the two statutes relied on by

      Scudder provided him relief. As to I.C. § 35-38-1-17, the State asserted that it

      was inapplicable to Scudder’s situation because Scudder had already served his

      sentence in full, and, therefore, “[his] sentence cannot be modified . . . under

      I.C. 35-38-1-17.” Appellant’s Appendix Vol. 2 at 37. As to the other statute, I.C. §

      35-50-2-7(c), the State asserts that it too was inapplicable because under that

      subsection “the court’s ability to convert a Class D Felony to a Class A

      misdemeanor existed only at the time of judgment of conviction and prior to

      sentencing.” Id. at 37.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 7 of 12
[9]    The parties appeared for hearing on the matter on August 31, 2018. At the

       hearing, Scudder testified to completing all terms of his sentence, moving his

       residence, starting his own t-shirt business, and, with his wife, being a foster

       parent to six children. Scudder discussed that he completed an EMT

       certification but was told that “with a felony conviction it would be hard” to

       employ him. Transcript Vol. 2 at 12. He also testified to having been hired at

       the Jennings County Jail as a jail officer but being let go on the fifth day due to

       insurance and “bonding issues” related to his Class D felony conviction. Id.

       Letters from potential employers, including the Jennings County Sheriff’s

       Department and Jennings County EMS, were admitted into evidence indicating

       that they would like to hire Scudder except for the Class D felony on his record.

       Counsel for both parties presented argument consistent with their respective

       pleadings regarding Scudder’s request to reduce the Class D felony official

       misconduct conviction to a Class A misdemeanor.


[10]   On September 21, 2018, the trial court issued an order denying Scudder’s

       Petition, finding in part:


               4. Sentence modification is improper under I.C. 35-38-1-17
               finding that the defendant requested a conviction conversion, and
               not a sentence modification.


               5. Alternative misdemeanor sentencing is improper under I.C.
               35-50-2-7(C), relying on the reasoning set forth in Brunner v. State,
               94 N.E.2d 411 (Ind. 2011).


               6. Alternative misdemeanor sentencing is improper under I.C.
               35-50-2-7(D), citing that the Indiana Legislature has specifically
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 8 of 12
               exempted the conviction of Official Misconduct from eligibility
               to be reduced to a misdemeanor.


               7. While the Court notes that [Scudder] may have made
               significant improvements in his life, his request to reduce the
               felony conviction for Official Misconduct has been denied twice
               in the past by two (2) judges. The Court further believes that the
               current state of the law does not permit the Court to grant him
               the relief [he] requests.


       Appellant’s Appendix Vol. 2 at 63. Scudder now appeals.




                                        Discussion & Decision
[11]   Scudder contends that the trial court erred when it denied his Petition that

       sought to reduce his Class D felony conviction for official misconduct to a Class

       A misdemeanor. Here, the trial court’s decision to deny him relief was based

       upon its interpretation of I.C. § 35-38-1-17 and I.C. § 35-50-2-7 as applied to

       undisputed facts. We review matters of statutory interpretation de novo. State

       v. Smith, 71 N.E.3d 368, 370 (Ind. 2017); State v. Brunner, 947 N.E.2d 411, 416

       (Ind. 2011). When interpreting statutes, we take words and phrases in their

       plain and usual meaning. Fields v. State, 972 N.E.2d 974, 976 (Ind. Ct. App.

       2012), trans. denied. We presume that the legislature intended the language to

       be applied logically and not to bring about an unjust or absurd result. Recker v.

       State, 904 N.E.2d 724, 726 (Ind. Ct. App. 2009), trans. denied. “‘The judicial

       function is to apply the law as enacted by the legislature.’” Ott v. State, 997


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 9 of 12
       N.E.2d 1083, 1085 (Ind. Ct. App. 2013) (quoting Moore v. State, 949 N.E.2d

       343, 345 (Ind. 2011)).


[12]   Scudder maintains that the trial court’s decision “arises out of the trial court’s

       failure to understand and employ current modification powers that it now

       possesses to impose any sentence on modification that [it] could have imposed

       at the original time of sentencing.” Appellant’s Brief at 20. He argues that I.C. §

       35-38-1-17 and I.C. § 35-50-2-7(c), when read together, allowed the trial court to

       modify his official misconduct conviction and reduce it from a Class D felony

       to a Class A misdemeanor. We disagree.


[13]   I.C. § 35-38-1-17(e) provides in pertinent part that a trial court “may reduce or

       suspend the sentence and impose a sentence that the court was authorized to

       impose at the time of sentencing” and may grant such relief at any time after

       the convicted person begins serving his sentence. (Emphasis added). This court

       has found that “[b]y its plain language, Indiana Code Section 35-38-1-17 clearly

       addresses the trial court’s authority to reduce or suspend a sentence, not the

       trial court’s authority to convert a conviction from a felony to a misdemeanor.”

       Fields, 972 N.E.2d at 976. That Scudder titled his Petition as a petition “to

       modify” does not automatically transform his request into a modification of a

       sentence and thereby include it within the scope of the sentence modification

       statutes. Scudder completed his sentence years ago, and we find that his

       request was not for a modified sentence; rather, his request was for his official

       misconduct felony conviction to be reduced to a misdemeanor.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 10 of 12
[14]   I.C. § 35-50-2-7(c), the other statute upon which Scudder relies, provides in

       part, that “if a person has committed a Class D felony . . . , the court may enter

       judgment of conviction of a Class A misdemeanor and sentence accordingly.”

       Subsection (c) allows a court, at the time of sentencing, to enter judgment of

       conviction as a misdemeanor. See In re Adoption I.B., 32 N.E.3d 1164, 1172 n.5

       (Ind. 2015) (“Just as Indiana Code section 35-50-2-7(c) gives criminal courts

       discretion at sentencing to enter an A-misdemeanor conviction on what would

       otherwise be a Class D felony, part (d) of the statute gives them discretion to do

       so retroactively.”) Scudder does not dispute that Subsection (c) addresses what

       the trial court may do at the time of sentencing, but argues that the subsection is

       nevertheless relevant to his case because, when read in conjunction with I.C. §

       35-38-1-17, the two statutes provided the trial court with the necessary authority

       to grant him relief and reduce his felony conviction.


[15]   More specifically, his argument appears to be as follows: Because Scudder was

       “fully eligible for [alternative misdemeanor sentencing] under IC 35-50-2-7(c) at

       the original time of sentencing even for the offense of Official Misconduct,” and

       because I.C. § 35-38-1-17(e) allows a trial court “to impose a sentence that it

       could have imposed at the time of [original] sentencing,” the trial court

       therefore had the authority under those two statutes to grant his Petition and

       “impose any sentence on modification that [it] could have imposed at the original

       time of sentencing.” Appellant’s Brief at 7, 14 (emphasis added). Scudder’s

       argument, however, is based on the faulty premise that he was asking the trial

       court to impose a new “sentence on modification.” He was not. Rather, he


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 11 of 12
       was asking the trial court to change the classification level of his conviction.

       We find that neither I.C. § 35-38-1-17 nor I.C. § 35-50-2-7(c), individually or in

       tandem, provided the trial court the authority to do so.


[16]   We are not unsympathetic to Scudder’s plight and recognize the roadblocks

       that the felony conviction is causing him. The trial court at the time of

       sentencing had the authority to enter the conviction as a misdemeanor, but, for

       whatever reason, chose not to exercise its discretion to do so. Now Scudder

       seeks to reduce his conviction from a Class D felony to a Class A misdemeanor.

       The applicable statute that provides a mechanism for the reduction of a

       conviction from felony to misdemeanor is I.C. § 35-50-2-7(d). By adding this

       subsection our legislature “‘adopted a policy wherein trial courts can reward

       good behavior by removing the stigma of certain Class D felony convictions.’”

       Smith, 71 N.E.3d at 370-71 (quoting Alden v. State, 983 N.E.2d 186, 189 (Ind.

       Ct. App. 2013), trans. denied). The legislature, however, identified certain

       offenses that may not be converted to a misdemeanor, and, unfortunately for

       Scudder, one of those excepted is official misconduct. The trial court’s

       proverbial hands were tied, and so are ours. The trial correctly found that it did

       not have the statutory authority to reduce Scudder’s official misconduct

       conviction.


[17]   Judgment affirmed.


       Najam, J. and Pyle, J., concurs.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2516 | April 8, 2019   Page 12 of 12
