      MEMORANDUM DECISION
                                                                       Jun 04 2015, 9:18 am
      Pursuant to Ind. Appellate Rule 65(D), this
      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.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Ricardo B. Fuller                                         Gregory F. Zoeller
      Carlisle, Indiana                                         Attorney General of Indiana

                                                                Ellen H. Meilaender
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Ricardo B. Fuller,                                       June 4, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               79A02-1411-CR-818
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court
                                                               The Honorable Thomas H. Bush,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 79D02-0603-FA-6




      Bailey, Judge.



                                            Case Summary
[1]   In 2006, Ricardo Fuller (“Fuller”) was convicted of Burglary, as a Class A

      felony; Battery, as a Class C felony; Domestic Battery, as a Class A

      Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-818 | June 4, 2015      Page 1 of 8
      misdemeanor; Criminal Confinement, as a Class B felony; Invasion of Privacy,

      as a Class A misdemeanor; and Stalking, as a Class C felony. 1 Fuller was also

      adjudicated to be a Habitual Offender. After a direct appeal that vacated a

      conviction, Fuller was sentenced to an aggregate term of imprisonment of sixty

      five years.


[2]   Fuller subsequently sought modifications of his sentences. Proceeding pro se,

      Fuller now appeals the trial court’s dismissal of a motion seeking modification

      of his sentence.


[3]   We affirm.



                              Facts and Procedural History
[4]   We take our statement of the facts from this Court’s prior opinion, which

      addressed Fuller’s direct appeal from his criminal conviction:

               The evidence most favorable to the convictions is that Fuller married
               L.F. in April 2005. They began experiencing marital problems in
               September of that year, and L.F. moved in with her mother. By
               November, Fuller and L.F. had reconciled and decided to rent a house
               in Lafayette. Only L.F. signed the lease, but Fuller and L.F. both were
               listed as tenants.
               On January 10, 2006, L.F. and Fuller had an argument and Fuller
               struck L.F. L.F. went to her mother’s home and called police from
               there. Fuller also went to the home and entered it without permission.
               Police officers arrived and warned Fuller that he was trespassing, but



      1
        Fuller had been convicted of Stalking in Violation of an Order of Protection, as a Class C felony; in his
      initial appeal, this Court reversed that conviction.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-818 | June 4, 2015                   Page 2 of 8
        they could not substantiate that L.F. had been battered. They then
        escorted Fuller back to the house where he had been living with L.F.
        He packed some belongings and told police that he was going to
        Kokomo to stay with a “girlfriend.” Tr. p. 161.
        On February 7, 2006, L.F. met with her landlord and had Fuller
        removed from the lease. It was the landlord’s practice to change the
        locks on the door anytime there was a change in tenants. On February
        10, 2006, L.F. arrived home from work at approximately 10:30 p.m.
        Also there was L.F.’s roommate, Brandy Loman. After she arrived
        home, Fuller called L.F., who told Fuller that she had to go to bed and
        not to call her anymore. Fuller called again, and at that same time
        there was a knock on the front door, which was locked. Loman
        looked out the window and saw that it was Fuller. L.F. and Loman
        refused to open the door, and Fuller said that he would break the door
        open if they did not let him in. L.F. attempted to call 911, but her
        phone was no longer working. Fuller then smashed the glass on the
        door, reached in and unlocked it, and entered the house.
        L.F. escaped through the back door of the house, but Fuller caught up
        with her outside and began battering her. L.F. remembers Fuller
        punching her in the head and kicking her in the stomach, and she lost
        consciousness during the beating. L.F. was taken to the hospital,
        where she was found to have sustained a fracture to the medial wall of
        the right eye socket, or the part of the eye socket next to the nose. She
        also had an ethmoid fracture, at the base of the cranium, as well as
        numerous abrasions and a six-inch laceration above her right eyebrow.
        L.F. obtained a protective order against Fuller on February 21, 2006.
        Nevertheless, Fuller repeatedly continued calling L.F. and leaving
        threatening messages for her.
        On March 23, 2006, the State charged Fuller with Class A felony
        burglary, Class C felony battery resulting in serious bodily injury,
        Class D felony domestic battery, and Class A misdemeanor domestic
        battery in connection with the February 10-11, 2006 incident. The
        State also charged Fuller with two counts of Class A misdemeanor
        invasion of privacy and one count of Class D felony invasion of
        privacy in connection with violations of the February 21, 2006
        protective order.
        On March 26, 2006, L.F. got home from work and found Fuller
        waiting for her in the dining room. Fuller accused L.F. of being

Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-818 | June 4, 2015   Page 3 of 8
        unfaithful and punched her in the face at least ten times. He then
        made L.F. get trash bags in which to put her roommate Loman’s
        belongings. Fuller had both L.F.’s home phone and cell phone so she
        could not call for help. While L.F. was attempting to put Loman’s
        things in the trash bags, Fuller continued accusing her of cheating and
        continued punching her, and also kicked her in the stomach and in the
        head. He threw a beer can at L.F., which lacerated one of her
        earlobes. He pushed L.F. down the stairs. He threatened to kill L.F. if
        she admitted to cheating, and to kill her if she did not admit it because
        he would know she was lying. Then, after hitting L.F. a few more
        times, Fuller told her to take a shower. She did, and afterwards Fuller
        allowed her to go to sleep.
        Despite having visible marks on her face, L.F. persuaded Fuller to let
        her go to work the next morning. She was found to have a “blowout”
        comminuted fracture of her right eye socket. Tr. p. 195. A nurse
        testified that “blowout” meant there were several fractures of the
        socket, and comminuted meant the fractures did not fit back together
        perfectly because some of the bone had been pulverized. L.F. also had
        multiple bruises on her face, arms, legs, and ribs, and had sharp pain in
        her right hip.
        On March 28, 2006, the State filed additional charges against Fuller,
        under the pre-existing cause number, for Class B felony criminal
        confinement, Class A misdemeanor domestic battery, and Class A
        misdemeanor invasion of privacy in connection with the March 26,
        2006 incident.
        On July 5, 2006, the State filed an information alleging that Fuller was
        an habitual offender. On August 23, 2006, the State filed two
        additional charges of Class C felony stalking, under the same cause
        number as all of the other charges, without first obtaining leave of the
        trial court. On October 10, 2006, Fuller filed an objection to the filing
        of the stalking charges. The trial court refused to dismiss the stalking
        charges, although it found them to be untimely filed.
        After the first phase of the trial held on December 12–13, 2006, a jury
        found Fuller guilty of Class A felony burglary, Class B felony criminal
        confinement, Class C felony battery, two counts of Class C felony
        stalking, Class A misdemeanor domestic battery, and Class A
        misdemeanor invasion of privacy. Fuller waived a jury trial for the
        second phase of the trial, after which the trial court found Fuller guilty

Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-818 | June 4, 2015   Page 4 of 8
              of Class D felony domestic battery because of a prior domestic battery
              conviction, and found that Fuller was an habitual offender. At
              sentencing on January 11, 2007, the trial court did not impose
              sentences for every charge for which Fuller had been found guilty. It
              imposed a sentence of twenty years for Class A felony burglary, fifteen
              years for Class B felony criminal confinement, and four years for Class
              C felony stalking, all to run consecutively, and three years for Class D
              felony domestic battery, to run concurrent with the other sentences, for
              a term of thirty-nine years. Four years were suspended. The trial
              court also enhanced the sentence by thirty years because of the
              habitual offender finding.


      Fuller v. State, 875 N.E.2d 326, 328-29 (Ind. Ct. App. 2007), trans. denied. On

      appeal, this Court vacated one of Fuller’s convictions for Stalking, as a Class C

      felony. On remand, the trial court entered an amended sentencing order, which

      ordered Fuller to serve an aggregate term of imprisonment of sixty-five years.

      Subsequent to this, Fuller began to pursue various forms of post-conviction and

      federal habeas corpus relief. (App’x at 5-6.)


[5]   On August 13, 2014, Fuller, proceeding pro se, filed in the trial court a motion

      styled, “Motion to Run Sentences Concurrent.” In the motion, Fuller

      requested that the trial court change the sentencing order to run certain of his

      sentences concurrently with one another, to yield an aggregate term of

      imprisonment of fifty years. (App’x at 131-32.) The trial court denied this

      motion on September 2, 2014, and reaffirmed its ruling on September 8, 2014.

      (App’x at 43, 127.)


[6]   On September 25, 2014, Fuller, again pro se, filed a second motion, styled as a

      “Petition for Modification of Sentence.” (App’x at 36-37.) Construing this to

      Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-818 | June 4, 2015   Page 5 of 8
      be a second petition for sentence modification in a twelve-month period,

      pursuant to Indiana Code section 35-38-1-17, the trial court dismissed Fuller’s

      petition.


[7]   Fuller now appeals.



                                 Discussion and Decision
[8]   Fuller appeals, challenging the trial court’s dismissal of his September 25, 2014,

      petition requesting a sentence modification. The gravamen of Fuller’s

      argument is that his motion seeking concurrent, rather than consecutive

      sentences, cited and was brought under Indiana Code section 35-50-1-2, and

      was therefore not a petition for sentence modification under Section 35-38-1-17.

      The State argues that under a savings clause, codified at Section 1-1-5.5-21, the

      trial court was precluded from any consideration related to a sentencing

      modification.


[9]   At the time Fuller’s motions were filed, Section 35-38-1-17 provided, in relevant

      part:

              A convicted person 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.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-818 | June 4, 2015   Page 6 of 8
       I.C. § 35-38-1-17(h). Fuller acknowledges that his September 25, 2014 petition

       sought a sentence modification under Section 35-38-1-17, but denies that the

       August 13, 2014 motion also sought a sentence modification.


[10]   Fuller is incorrect. He rests his argument upon statutory citations made in the

       two requests, and argues that because he cited Section 35-50-1-2 but not Section

       35-38-1-17 in the August 13, 2014 motion, that motion was not a request for a

       sentence modification. Fuller correctly notes that Section 35-50-1-2 provides

       trial courts with discretion to order consecutive or concurrent sentences. Yet a

       motion filed after a sentence has been entered, where the motion requests that a

       court change the terms of a sentencing order, can be nothing other than a

       request for modification of the sentence.


[11]   The citation of different statutes in different motions, upon which Fuller rests

       his arguments, is of no moment here. As in other matters, we prefer substance

       over form, and the substance of both the August motion and the September

       petition is that of a sentence modification. See In re Sale of Real Property with

       Delinquent Taxes or Special Assessments, 822 N.E.2d 1063, 1069 (Ind. Ct. App.

       2005), trans. denied. This comports with Trial Rule 8(F), which requires that

       pleadings be construed to do substantial justice, lead to disposition of cases on

       their merits, and avoid litigation of procedural points.


[12]   Both the August motion and the September petition were petitions seeking

       sentence modifications. These petitions were less than 365 days apart. Under

       Section 35-38-1-17(h), as enacted at the time of Fuller’s petitions, the September


       Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-818 | June 4, 2015   Page 7 of 8
       petition was barred from consideration. The trial court did not err when it

       dismissed the September petition without consideration of its merits.


[13]   The State insists that the trial court simply lacked any authority to consider

       Fuller’s petitions because of the operation of the savings clause in Section 1-1-

       5.5-21. We need not reach that question because, whether as a result of the

       savings clause or the procedural requirements of Section 35-38-1-17, Fuller’s

       September petition was barred, and Fuller does not appeal the trial court’s

       denial of the August motion on its merits. We note further that the General

       Assembly enacted Public Law 164-2015, a revision to Section 35-38-1-17 that

       became effective on May 5, 2015. Whether the revised statute has retroactive

       implications for Fuller’s or any other defendant’s sentence modification

       requests, present or future, is beyond the scope of the instant decision; we note,

       however, that the revised statute expressly sets aside the operation of the

       savings clause for purpose of sentence modification requests.


[14]   Here, the trial court correctly dismissed Fuller’s September petition. We

       accordingly affirm the trial court’s order.


[15]   Affirmed.


       Riley, J., and Barnes, J., concur.




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