MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                                         09/15/2017, 10:27 am
this Memorandum Decision shall not be
                                                                                    CLERK
regarded as precedent or cited before any                                       Indiana Supreme Court
                                                                                   Court of Appeals
court except for the purpose of establishing                                         and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana

                                                         Angela Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David L. Newson,                                         September 15, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1705-PC-1090
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy J. Barbar,
Appellee-Respondent.                                     Magistrate
                                                         Trial Court Cause No.
                                                         49G02-9604-PC-48010



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1705-PC-1090 | September 15, 2017         Page 1 of 5
                                              Case Summary
[1]   David L. Newson appeals the trial court’s denial of his motion for modification

      of his seventy-three-year sentence for murder and class C felony carrying a

      handgun without a license.1 We affirm.


                                                       Issue
[2]   The sole issue is whether the trial court properly found that Newson was a

      “violent criminal” and, therefore, not entitled to file a motion to modify his

      sentence more than 365 days after his sentencing hearing, without first

      obtaining the consent of the prosecuting attorney.


                                                       Facts
[3]   On December 3, 1997, a jury found Newson guilty of murder and class C

      felony carrying a handgun without a license. On January 8, 1998, the trial

      court imposed maximum consecutive sentences of sixty-five years and eight

      years, respectively, for an aggregate sentence of seventy-three years. Our

      supreme court affirmed Newson’s convictions. Newson v. State, 721 N.E.2d 237,

      239 (Ind. 1999).


[4]   On September 2, 2016, Newson filed a motion to modify his sentences

      requesting that his eight-year sentence be served concurrently with his sixty-



      1
        On June 12, 2017, Newson filed a Verified Motion to Incorporate by Reference and Take Judicial Notice of
      Record from Prior Related Appeal (“Motion”). On June 15, 2017, this Court ordered Newson’s Motion held
      in abeyance to be addressed by the writing panel designated to adjudicate this appeal. Because we determine
      another issue to be dispositive in this appeal, we deny Newson’s Motion.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-PC-1090 | September 15, 2017       Page 2 of 5
      five-year sentence. The State objected, and the trial court denied the motion for

      modification of sentence. Newson now appeals.


                                                  Analysis
[5]   Newson argues that the trial court erred in refusing to modify his sentence. We

      review a trial court’s decision on a motion for sentence modification for abuse

      of discretion. Gardiner v. State, 928 N.E.2d 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.

      Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).


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

      of sentences, was amended in 2015 to provide that it applies to defendants who

      committed their offenses or were sentenced before July 1, 2014. See Woodford v.

      State, 58 N.E.3d 282, 285 (Ind. Ct. App. 2016) (discussing history of Ind. Code

      § 35-38-1-17).


[7]   Indiana Code Section 35-38-1-17(d)(1) defines a “violent criminal” as a person

      convicted of any of the enumerated offenses, including murder. Section 35-38-

      1-17(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).



      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-PC-1090 | September 15, 2017   Page 3 of 5
[8]    Newson is a “violent criminal” because he was convicted of murder. See I.C. §

       35-38-1-17(d)(1). As a violent criminal, he was not entitled to file a petition for

       sentence modification more than 365 days after his sentencing hearing without

       the consent of the prosecuting attorney. Newson was sentenced in January of

       1998. He did not file his motion for a sentence modification until September 2,

       2016, far more than 365 days after he was sentenced. Pursuant to Indiana Code

       Section 35-38-1-17(k), the trial court could only grant Newson’s request for a

       modification of his sentence if Newson first obtained the consent of the

       prosecuting attorney. Given the prosecuting attorney’s objection, the trial court

       could not have granted Newson’s requested relief.


[9]    Newson contends that a statutory ambiguity exists under the instant facts,

       which ambiguity must be construed in his favor to avoid an absurd result.

       Specifically, he argues that, because carrying a handgun without a license is not

       an enumerated offense within Indiana Code Section 35-38-1-17(d), he is not a

       “violent criminal” regarding that specific conviction. He argues that the trial

       court could, therefore, have granted his requested relief because he was not

       required to obtain the prosecutor’s consent to modification of his eight-year

       sentence. We disagree.


[10]   We review matters of statutory interpretation de novo because they present pure

       questions of law. Gardiner, 928 N.E.2d at 196. In interpreting statutes, we take

       words and phrases in their plain and usual meaning. I.C. § 1-1-4-1(1).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-PC-1090 | September 15, 2017   Page 4 of 5
[11]   Indiana Code Section 35-38-1-17 unambiguously carves out an exception to the

       general rule allowing for modification of sentences where a person is a “violent

       criminal” and provides no temporal or other limitation that evinces a legislative

       intention to qualify or parse the meaning of “violent criminal” under the instant

       circumstances. As the State correctly explains in its brief, “The statute defines

       the type [of] offender who may seek modification, not the specific crimes or

       portions of sentences that may be modified.” Appellee’s Br. p. 8. Newson is no

       less a “violent criminal” for purposes of Indiana Code Section 35-38-1-17(d)

       because he was convicted of both murder and carrying a handgun without a

       license. The trial court did not err in refusing to modify his sentence.


                                                 Conclusion
[12]   The trial court did not abuse its discretion in denying Newson’s motion for

       modification of sentence. We affirm.


[13]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-PC-1090 | September 15, 2017   Page 5 of 5
