      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                               Feb 16 2016, 6:51 am

      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.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Bryan L. Cook                                            Gregory F. Zoeller
      Indianapolis, Indiana                                    Attorney General of Indiana

                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Christopher J. West,                                     February 16, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               21A01-1510-CR-1673
              v.                                               Appeal from the Fayette Circuit
                                                               Court
      State of Indiana,                                        The Honorable Beth Butsch, Judge
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               21C01-0904-FA-45



      Altice, Judge.


                                               Case Summary


[1]   Christopher J. West appeals from the trial court’s denial of his motion to

      modify sentence.

      Court of Appeals of Indiana | Memorandum Decision 21A01-1510-CR-1673 | February 16, 2016    Page 1 of 4
[2]   We affirm.


                                       Facts & Procedural History


[3]   Following a jury trial, on February 18, 2010, West was convicted of two counts

      of Class B felony dealing in a narcotic drug and one count of Class D felony

      possession of cocaine. The trial court sentenced him to an aggregate executed

      term of thirty-three years in prison. On direct appeal, this court revised West’s

      sentence to an aggregate executed term of eighteen years in prison. West v.

      State, No. 21A04-1004-CR-303 (Ind. Ct. App. Jan. 26, 2011).


[4]   Thereafter, West filed unsuccessful motions to modify in 2012, 2013, and 2014.

      On March 27, 2015, he filed a motion for progress report, which was granted by

      the trial court. The Department of Correction provided the report to the trial

      court and the parties in May 2015. At that time, West’s anticipated date of

      release was April 1, 2018. West filed the instant motion to modify his sentence

      on June 19, 2015, which the trial court summarily denied without a hearing on

      September 22, 2015.


                                          Discussion & Decision


[5]   West argues that the trial court abused its discretion by “refusing to further

      consider [his] sentence when his [DOC] Progress Report demonstrates

      overwhelming, objective evidence of reformation, and his remaining prison

      sentence is nearing completion.” Appellant’s Brief at 1. Additionally, West




      Court of Appeals of Indiana | Memorandum Decision 21A01-1510-CR-1673 | February 16, 2016   Page 2 of 4
      asserts that the trial court “arguably acted without authority” in denying his

      motion more than ninety days after it was filed. Id. at 5.


[6]   We begin by addressing West’s belated challenge to the trial court’s authority to

      rule on the motion. Citing Ind. Trial Rules 53.1 and 53.2, West argues that the

      trial court lost jurisdiction to rule on the motion ninety days after it was filed

      and that we should remand with instructions for further consideration by a

      special judge.


[7]   These rules are “intended to expedite proceedings by withdrawing cases from

      trial judges who have delayed their ruling beyond the specified period of time.”

      Williams v. State, 716 N.E.2d 987, 900 (Ind. 1999). If a party chooses not to file

      a lazy judge motion and, if denied, seek a writ of mandate from our Supreme

      Court to compel disqualification of the judge, the party is estopped from

      complaining on appeal that the original trial judge maintained jurisdiction over

      the case. Id. Because West did not follow the procedural mandates and waited

      until an unfavorable judgment was entered against him, he may not now be

      heard to complain. See id.


[8]   With respect to petitions for sentence modification, Ind. Code § 35-38-1-17

      provides explicit limitations. For a convicted person who, like West, is not a

      violent criminal, I.C. § 35-38-1-17(j) provides that such petitions may be filed

      without the consent of the prosecuting attorney:

              (1)      not more than one (1) time in any three hundred sixty-five
                       (365) day period; and


      Court of Appeals of Indiana | Memorandum Decision 21A01-1510-CR-1673 | February 16, 2016   Page 3 of 4
        (2)      a maximum of two (2) times during any consecutive
                 period of incarceration.


West acknowledges that this is the fourth time he has sought modification of his

sentence in this case. Further, the record does not indicate that the prosecuting

attorney consented to this recent filing. Under these circumstances, the trial

court did not err in summarily denying West’s motion to modify sentence. See

I.C. § 35-38-1-17(j)(2).


Judgment affirmed.


Robb, J., and Barnes, J., concur.




Court of Appeals of Indiana | Memorandum Decision 21A01-1510-CR-1673 | February 16, 2016   Page 4 of 4
