                                                               FILED
                                                          Aug 05 2016, 5:58 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
William J. Woodford                                        Gregory F. Zoeller
Carlisle, Indiana                                          Attorney General of Indiana
                                                           Larry D. Allen
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

William J. Woodford,                                       August 5, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A03-1601-CR-171
        v.                                                 Appeal from the Elkhart Circuit
                                                           Court
State of Indiana,                                          The Honorable Terry C.
Appellee-Plaintiff                                         Shewmaker, Judge
                                                           Trial Court Cause No.
                                                           20C01-9912-CF-140



Bailey, Judge.




Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016                 Page 1 of 12
                                           Case Summary
[1]   William J. Woodford (“Woodford”) appeals the trial court’s order modifying

      his sentence placement, arguing that the court abused its discretion by failing to

      grant the full relief he sought after he demonstrated exemplary rehabilitative

      efforts, including remaining free of conduct violations for the entirety of his

      nearly sixteen-year imprisonment. We remand.



                                                     Issues
[2]   Woodford presents one issue: whether the trial court abused its discretion by

      ordering that the final twelve years of his sentence be served in community

      corrections, but not reducing his sentence.


[3]   We also address an issue raised by the State: whether the trial court had

      authority to modify Woodford’s sentence without the prosecutor’s consent.



                                 Facts and Procedural History
[4]   In 2000, Woodford was convicted of Dealing in Cocaine, as a Class A felony,1

      and Possession of a Controlled Substance, a Class D felony,2 and adjudicated a

      habitual offender.3 The trial court imposed an aggregate sentence of seventy




      1
          Ind. Code § 35-48-4-1 (1998).
      2
          I.C. § 35-48-4-7 (1998).
      3
          I.C. § 35-50-2-8 (1998).


      Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016   Page 2 of 12
      years in the Indiana Department of Correction (“DOC”). In 2001, the Indiana

      Supreme Court affirmed his conviction. Woodford v. State, 752 N.E.2d 1278

      (Ind. 2001), cert. denied. Woodford was subsequently denied post-conviction

      relief, and this Court affirmed the post-conviction court’s order. See Woodford v.

      State, No. 20A04-0202-PC-69, Slip. op. (Ind. Ct. App. Jan. 17, 2003).


[5]   On July 13, 2009, Woodford filed a petition for sentence modification, which

      the trial court denied for lack of jurisdiction.4 On June 20, 2014, Woodford

      filed another petition for sentence modification, which the court denied for the

      same reason. The trial court also denied Woodford’s petition for sentence

      modification filed July 21, 2014.


[6]   On September 28, 2015, Woodford filed a new petition for sentence

      modification and request to modify his placement to community corrections,

      drawing the court’s attention to his age (sixty-one), educational achievements,



      4
        The court found that it was without “jurisdiction” to reduce or suspend Woodford’s sentence without the
      consent of the prosecutor. (App. 11-12.) At the time the court denied Woodford’s first petition, the court’s
      authority to render a sentence modification was “subject to the approval of the prosecuting attorney” if 365
      days had passed since sentencing. See I.C. § 35-38-1-17(b) (2008). Attorneys and judges alike have a
      tendency to treat procedural errors as defects in subject matter jurisdiction. K.S. v. State, 849 N.E.2d 538, 541
      (Ind. 2006). It is true that “[a]fter final judgment, a court retains only such continuing jurisdiction as is
      permitted by the judgment itself or as is given the court by statute or rule.” Beanblossom v. State, 637 N.E.2d
      1345, 1347 (Ind. Ct. App. 1994), trans. denied. Generally after a sentence is pronounced, jurisdiction over a
      defendant goes to the DOC; however, under the sentence modification statute, “the jurisdiction of the
      sentencing court to modify the sentence remains . . . .” Id. at 1348.
      Although the sentence modification statute establishes the court’s jurisdiction, “[t]he legislature was free,
      through the statute, to give the trial court authority to render a modification of the sentence with whatever
      conditions and within whatever time it deemed appropriate.” Id. The requirement that the prosecutor
      consent to a sentence modification is thus properly understood as a procedural condition precedent to the
      court’s exercise of authority, rather than a jurisdictional limitation. Here, the trial court had jurisdiction over
      the matter of Woodford’s sentence in 2009, but the condition precedent of prosecutorial approval was not
      met, thereby depriving the court of statutory authority.

      Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016                              Page 3 of 12
      and the fact that he had remained free of conduct violations during his nearly

      sixteen-year imprisonment. Specifically, Woodford asked the court “to reduce

      or suspend his sentence to forty (40) years and to place him in a community

      corrections work release program.” (App. 21.) The court initially denied the

      motion; however, it ordered the DOC to file a progress report and stated that “it

      may reconsider its ruling upon receipt of said report.” (App. 13.) After

      receiving and reviewing the report, the court scheduled a hearing on the

      motion.5


[7]   A hearing was held December 10, 2015. On January 4, 2016, the trial court

      declined to reduce Woodford’s sentence, but ordered that his final twelve years

      be served in community corrections on in-home detention, subject to his

      acceptance to the program. Woodford appeals.



                                  Discussion and Decision
                                            Trial Court’s Authority

[8]   We begin with the State’s argument that the trial court lacked authority to

      entertain Woodford’s petition for sentence modification. To the extent the

      State’s argument raises an issue of statutory interpretation, the primary goal in

      statutory interpretation is to ascertain and give effect to the legislature’s intent.




      5
        In the meantime, Woodford appealed the court’s initial denial. After the trial court set a hearing to
      reconsider, this Court dismissed the original appeal without prejudice and instructed Woodford to file a new
      notice of appeal should he choose to appeal a subsequent order.

      Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016                         Page 4 of 12
      State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). The language of the

      statute is the best evidence of that intent. Id. We “presume[] that the legislature

      intended for the statutory language to be applied in a logical manner consistent

      with the statute’s underlying policy and goals.” Id. In addition, a remedial

      statute should be liberally construed to cure the mischief for which it was

      enacted. Brown v. State, 947 N.E.2d 486, 490 (Ind. Ct. App. 2011), trans. denied.


[9]   On September 28, 2015, Woodford filed his petition for sentence modification,

      asking for a sentence reduction or suspension and placement in a community

      corrections work release program.6 Indiana’s sentence modification statute was

      substantially amended in 2014 as part of a broad overhaul of the criminal code.

      See Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied;

      I.C. § 35-38-1-17 (2014). This Court had previously held that the 2014 statute

      did not apply to offenders convicted or sentenced before the statute’s effective

      date. See, e.g., Swallows v. State, 31 N.E.3d 544 (Ind. Ct. App. 2015), trans.

      denied; Hobbs v. State, 26 N.E.3d 983 (Ind. Ct. App. 2015). In 2015, our General

      Assembly clarified that the sentence modification statute “applies to a person

      who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.” I.C. §




      6
        Woodford’s motion stated two statutory bases for the court’s authority to modify or suspend his sentence
      and place him in community corrections: Indiana Code § 35-38-1-17 (sentence modification) and § 35-38-2.6-
      3 (suspension of sentence and direct placement in community corrections). Because Section 35-38-2.6-3
      applies “at the time of the sentencing,” I.C. § 35-38-2.6-3(a) (Supp. 2015), “[i]f after sentencing, a defendant
      requests to modify his placement and be allowed to serve his sentence in a community corrections program,
      this is a request for a modification of sentence under Ind. Code § 35-38-1-17.” Keys v. State, 746 N.E.2d 405,
      407 (Ind. Ct. App. 2001) (citing State v. Porter, 729 N.E.2d 591, 593 n.1 (Ind. Ct. App. 2000)). Accordingly,
      we treat Woodford’s motion as a petition for sentence modification under Indiana Code § 35-38-1-17. See id.

      Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016                           Page 5 of 12
       35-38-1-17(a) (Supp. 2015). Thus, the 2015 amendment was remedial. See

       Brown, 947 N.E.2d at 490 (quoting State v. Pelley, 828 N.E.2d 915, 919 (Ind.

       2005)) (“A statute is remedial when it is ‘intended to cure a defect or mischief

       that existed in a prior statute.’”).


[10]   The sentence modification statute now provides:

               (e) At any time after:


                    (1) a convicted person begins serving the person’s sentence;
                    and


                    (2) the court obtains a report from the department of
                    correction concerning the convicted person’s conduct while
                    imprisoned;


               the court may reduce or suspend the sentence and impose a
               sentence that the court was authorized to impose at the time of
               sentencing. The court must incorporate its reasons in the record.


       I.C. § 35-38-1-17(e) (Supp. 2015).7 The 2015 amendment also permits a

       convicted person who is not a violent criminal to file two petitions for sentence

       modification without first obtaining the consent of the prosecuting attorney.

       I.C. § 35-38-1-17(j)(2) (Supp. 2015). In whole, subsection (j) provides:


               (j) This subsection applies only to a convicted person who is not
               a violent criminal. A convicted person who is not a violent



       7
        The most recent amendment, effective July 1, 2016, does not alter the subsections at issue. See Pub. L. No.
       13-2016, § 12 (2016).

       Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016                        Page 6 of 12
                criminal 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;


                without the consent of the prosecuting attorney.


       I.C. § 35-38-1-17(j) (Supp. 2015).


[11]   The statute’s application in this case is straightforward. Woodford was

       convicted and sentenced in 2000 and filed a petition for sentence modification

       on September 28, 2015. Woodford is not a “violent criminal” under Indiana

       Code § 35-38-1-17(d) (Supp. 2015). This was Woodford’s first petition under

       the new statute. Accordingly, the prosecutor’s consent was not required.


[12]   The State’s position is that the trial court lacked authority to entertain

       Woodford’s petition because the three petitions Woodford filed before the 2015

       amendment’s effective date should count against his two-petition limit (without

       the prosecutor’s consent) under Section 35-38-1-17(j)(2).8 In other words, the




       8
         As soon as the State raises the issue, the State explicitly abandons it by declaring it “is choosing not to cross-
       appeal Woodford’s sentence modification” (Appellant’s Br. 9) and asking that we affirm the trial court. Still,
       we address the State’s argument because of its broad implications for evaluating the conditions precedent to a
       trial court’s exercise of authority under the revised sentence modification statute.

       Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016                               Page 7 of 12
       State contends that Woodford exhausted his “two bites at the apple” before the

       two-bite limit was even enacted.9


[13]   “Statutes are to be given prospective effect only, unless the legislature

       unequivocally and unambiguously intended retrospective effect as well.” Pelley,

       828 N.E.2d at 919. In 2015, when the legislature clarified that the new sentence

       modification scheme applies to persons convicted or sentenced before July 1,

       2014, see I.C. § 35-38-1-17(a) (Supp. 2015), it conferred on nonviolent offenders

       the right to twice pursue sentence modification without obtaining the

       prosecuting attorney’s consent. The statute does not unequivocally or

       unambiguously state that the two-petition limit in Subsection (j)(2) should apply

       retrospectively to petitions filed before the statute’s effective date. Indeed, to

       apply the limit retrospectively in a remedial statute like this one would produce

       an absurd result: it would deny Woodford the opportunity for sentence

       modification under the new statutory terms, even though Section 35-38-1-17(a)

       explicitly extends the new scheme to persons like Woodford who were

       convicted and sentenced before July 1, 2014.




       9
         In support of its position, the State cites a recent case, Vazquez v. State, in which Vazquez filed petitions for
       sentence modification in November 2010, July 2014, and October 2014. 37 N.E.3d 962, 963 (Ind. Ct. App.
       2015). The trial court denied Vazquez’s October 2014 petition as untimely because Indiana Code § 35-38-1-
       17(j)(1) limits a nonviolent criminal to one petition within a 365 day period and his last two petitions were
       filed three months apart. Id. A panel of this Court affirmed, noting that Subsection (j)(1) “mandates this
       result.” Id. at 964. The Court also observed that Vazquez “exceeded the authorized number of filings” under
       Subsection (j)(2), id., although the issue of which petitions count toward the limit was not squarely presented
       to the Court. The Court’s alternate reasoning is not controlling here, and for the reasons articulated below,
       we conclude that the trial court had authority to enter a sentence modification on Woodford’s latest petition.

       Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016                              Page 8 of 12
[14]   Moreover, the State’s approach would undermine the stated intentions of our

       General Assembly. When the legislature comprehensively reformed the

       criminal code in 2014, it directed that the new provisions be construed to,

       among other enumerated goals, “reduce crime by promoting the use of

       evidence based best practices for rehabilitation of offenders in a community

       setting” and “keep dangerous offenders in prison by avoiding the use of scarce

       prison space for nonviolent offenders[.]” I.C. §§ 35-32-1-1(5)-(6). In keeping

       with the legislative distinction between nonviolent and dangerous, the statute

       more severely limits a violent criminal’s modification requests, see I.C. § 35-38-

       1-17(k) (Supp. 2015), while providing a nonviolent criminal two opportunities

       to present sentence modification petitions directly to the court. By allowing

       certain petitions to proceed directly to courts for evaluation on the merits, the

       legislature gave courts greater opportunity to evaluate the rehabilitative efforts

       of long-incarcerated but nonviolent offenders and determine whether scarce

       prison resources could be better used.


[15]   Of course, the court’s authority to modify sentences is not unfettered under the

       new statute. The court must first obtain a conduct report from the DOC. I.C. §

       35-38-1-17(e) (Supp. 2015). If modification is warranted, the court may only

       impose a sentence that was authorized at the time of sentencing and must

       incorporate its reasons in the record. I.C. § 35-38-1-17(e) (Supp. 2015). And

       although the statute no longer always requires the prosecutor’s consent, it

       preserves the prosecutor’s critical role in representing the State’s interest in

       sentence modifications by requiring advance notice to the prosecutor of any


       Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016    Page 9 of 12
       modification hearing. I.C. § 35-38-1-17(f) (Supp. 2015). Thus, no

       modifications may be made without first giving the prosecutor an opportunity

       to present evidence and argument at a hearing.


[16]   In sum, the legislature did not unequivocally and unambiguously state that the

       petition limit should be applied retrospectively to petitions filed under a prior

       version of the statute; moreover, such an interpretation would undermine the

       statute’s remedial purpose. Furthermore, the legislative goals of promoting

       community-based rehabilitation and preserving scarce prison resources for

       violent and dangerous offenders are better advanced through prospective

       application. Accordingly, the prosecuting attorney’s consent was not required,

       and the trial court had authority to hear Woodford’s first petition under the

       latest version of the sentence modification statute.


                                        Sentence Modification Order

[17]   We turn now to the court’s modification order. After Woodford filed his

       petition for sentence modification, the trial court obtained a conduct report

       from the DOC and scheduled a hearing. At the hearing, the court expressed

       uncertainty as to whether it had authority to reduce or suspend Woodford’s

       sentence, but believed it had authority to modify his placement to community

       corrections.


[18]   On January 4, 2016, the court entered a written order acknowledging

       Woodford’s lengthy criminal history, but also noting the “number of positive




       Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016   Page 10 of 12
       endeavors” Woodford pursued while incarcerated 10 and congratulating him for

       the “extremely unusual” accomplishment of remaining free of conduct

       violations for the nearly sixteen years he had been incarcerated. (App. 18A.)

       The court declined to suspend Woodford’s sentence, but ordered that the final

       twelve years be served in community corrections on in-home detention.


[19]   The 2015 sentence modification statute gives the court authority to “reduce or

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

       impose at the time of sentencing.” I.C. § 35-38-1-17(e) (Supp. 2015). Based on

       our review of the hearing transcript and the court’s written order, it is unclear

       whether the trial court was operating under the 2015 sentence modification

       statute when it modified Woodford’s placement rather than reduce or suspend

       his sentence.11 Accordingly, we will not review the trial court’s modification

       order for abuse of discretion as Woodford requests, but instead remand the

       petition for consideration under Indiana Code § 35-38-1-17 (Supp. 2015).



                                                 Conclusion



       10
         Woodford obtained a legal assistance/paralegal diploma, earned a computer operator apprenticeship, and
       completed an associate degree in organizational leadership with a 3.917 GPA. Given the quality of
       Woodford’s written briefs in this case, we are not surprised by Woodford’s academic achievements.
       11
          The distinction the court drew at the hearing and in its order between placement in community corrections
       and reduction/suspension raises the possibility that the court was operating under the old statutory
       framework. A prior version of the statute, Indiana Code § 35-38-1-17(b) (Supp. 2012), expressly gave the
       court authority to modify a convicted person’s placement from the DOC to community corrections without
       the prosecutor’s approval. That language has since been removed.

       Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016                       Page 11 of 12
[20]   The trial court had authority to entertain Woodford’s first petition under the

       latest version of the sentence modification statute. We remand with

       instructions to hold a new hearing on Woodford’s petition and consider it under

       the revised statute, Indiana Code § 35-38-1-17 (Supp. 2015).


[21]   Remanded.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1601-CR-171 | August 5, 2016   Page 12 of 12
