MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Oct 29 2019, 10:34 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Robert Matthew Nolan                                     Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Matthew Nolan,                                    October 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-570
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Maria D. Granger,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         22D03-0907-FB-1637



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-570 | October 29, 2019                Page 1 of 5
                                          Case Summary
[1]   Robert M. Nolan (“Nolan”) appeals the denial of his petition for modification

      of his sentence. He raises several issues on appeal, which we consolidate and

      restate as the following dispositive issue: whether the trial court had authority

      to modify Nolan’s sentence. Concluding that it did not, we affirm.



                            Facts and Procedural History
[2]   On July 8, 2009, the State charged Nolan with rape, child molesting, and two

      counts of child seduction. On July 2, 2010, a jury found Nolan guilty as

      charged. On August 6, 2010, the trial court sentenced Nolan to an aggregate

      sentence of thirty years in the Indiana Department of Correction with eight

      years suspended to probation. We affirmed Nolan’s convictions and sentence

      on direct appeal. Nolan v. State, no. 22A01-1007-CR-433, 2012 WL 456537

      (Ind. Ct. App. Feb. 14, 2012), trans. denied (Nolan I). We also denied Nolan’s

      petition for post-conviction relief. Nolan v. State, no. 22A01-1708-PC-1816,

      2018 WL 3029018 (Ind. Ct. App. June 19, 2018), trans. denied (Nolan II).


[3]   On June 17, 2014, Nolan filed a petition to modify sentence. Following a

      hearing, the trial court denied the petition on March 2, 2015, and we affirmed

      the denial of modification. Nolan v. State, no. 22A01-1503-CR-120, 2016 WL

      1274125 (Ind. Ct. App. Mar. 31, 2016), trans. denied (Nolan III). On May 1,

      2018, Nolan again filed a petition to modify sentence. Following a hearing at

      which the State objected to Nolan’s petition to modify, the trial court denied


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-570 | October 29, 2019   Page 2 of 5
      Nolan’s petition on November 30, 2018. Nolan filed a motion to correct error

      on December 21, 2018, and the court held a hearing on that motion on

      February 4, 2019. On February 7, the trial court denied Nolan’s motion to

      correct error. This appeal ensued.



                                 Discussion and Decision
[4]   Nolan contends the trial court erred when it denied his May 1, 2018, petition to

      modify his sentence. We review a trial court’s decision regarding sentence

      modification for an 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.” Newson v. State, 86 N.E.3d 173, 174 (Ind. Ct.

      App. 2017) (citing Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014)), trans. denied.

      However, we review matters of statutory interpretation de novo. Gardiner, 928

      N.E.2d at 196.


[5]   Indiana Code Section 35-28-1-17 governs the reduction and suspension of

      sentences and applies to defendants who committed their offenses or were

      sentenced before July 1, 2014. Subsection (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 19A-CR-570 | October 29, 2019   Page 3 of 5
      Newson, 86 N.E.3d at 174. A “violent criminal” is defined as a person

      convicted of certain enumerated offenses, including rape and child molesting.

      I.C. § 35-28-1-17(d)(8), (10).


[6]   Because (1) Nolan was convicted of rape and child molesting and is therefore a

      “violent criminal” as defined by the statute; (2) he committed, and was

      sentenced for, his offenses before July 1, 2014; and (3) more than 365 days have

      passed since the date of his sentencing, he is ineligible to file a petition for

      sentence modification without the prosecuting attorney’s consent. See I.C. § 35-

      28-1-17(a), (d), (k). The State objected to his motion for sentence modification.

      Therefore, the trial court was without authority to modify Nolan’s sentence.1

      Id.; see also Newson, 86 N.E.3d at 174; Manley v. State, 868 N.E.2d 1175, 1179

      (Ind. Ct. App. 2007), trans. denied.


[7]   However, like the defendant in Newson, Nolan argues that he is not a “violent

      criminal” as to two of his convictions—i.e., those for child seduction—because

      those convictions are not for one of the enumerated offenses listed under

      subsection (d) of the statute. As Newson did, Nolan argues that the trial court

      could have modified his sentence for those two non-violent offenses. However,

      as we explained in Newson, “[t]he statute defines the type [of] offender who may

      seek modification, not the specific crimes or portions of sentences that may be

      modified.” Newson, 86 N.E.3d at 175 (quotations omitted). Thus, Nolan “is no




      1
          Thus, we do not address Nolan’s lengthy arguments attacking his sentences on the merits.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-570 | October 29, 2019                Page 4 of 5
       less a ‘violent criminal’ for purposes of Indiana Code Section 35-38-1-17(d)

       because he was convicted of both [violent crimes and non-violent crimes].” Id.


[8]    Nolan also seems to maintain that the sentence modification statute, as

       interpreted in Newson, violates Article 1, Section 18, of the Indiana

       Constitution, which provides: “The penal code shall be founded on the

       principles of reformation, and not of vindictive justice.” Again, this Court has

       previously addressed this same argument; as we have repeatedly noted, “it is

       well-settled Section 18 applies only to the penal code as a whole and not to

       individual sentences.” Cornelious v. State, 988 N.E.2d 280, 282 n.4 (Ind. Ct.

       App. 2014), trans denied; see also, e.g., Henson v. State, 707 N.E.2d 792, 796 (Ind.

       1999) (same). Therefore, Nolan’s Article 1, Section 18 claim also fails.



                                               Conclusion
[9]    Because the trial court did not have authority to modify Nolan’s sentence

       pursuant to Indiana Code Section 35-38-1-17, it did not abuse its discretion

       when it denied his petition for sentence modification.


[10]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-570 | October 29, 2019   Page 5 of 5
