MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             May 17 2016, 9:08 am

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


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
John R. Northern                                        Gregory F. Zoeller
Pendleton, Indiana                                      Attorney General of Indiana

                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John R. Northern,                                       May 17, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        56A03-1510-CR-1614
        v.                                              Appeal from the Newton Superior
                                                        Court
State of Indiana,                                       The Honorable Daniel J. Molter,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        56D01-1104-FA-2



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 56A03-1510-CR-1614 | May 17, 2016        Page 1 of 5
[1]   John R. Northern, pro se, appeals the denial of his motion to modify his

      sentence. The State agrees the trial court erred by denying his motion without

      considering its merits. We reverse and remand.


                                      Facts and Procedural History
[2]   On April 13, 2011, the State charged Northern with two counts of Class A

      felony dealing in methamphetamine 1 and one count of Class C felony

      possession of chemical reagents or precursors with intent to manufacture

      methamphetamine. 2 On December 14, 2011, a jury found Northern guilty of all

      three crimes. Prior to sentencing, the State moved to vacate the possession of

      reagents conviction, and the trial court granted that motion. In January 2012,

      the court imposed a thirty-year sentence, with ten years suspended to probation.

      Northern appealed his conviction and sentence, and we affirmed in an

      memorandum decision. Northern v. State, 979 N.E.2d 190 (Ind. Ct. App. 2012),

      trans. denied.


[3]   On July 6, 2015, Northern filed a pro se motion for modification of his sentence.

      The State objected. The court held a hearing and then denied the motion after

      finding it had “no authority to act on the Defendant’s Motion without the

      consent of the State of Indiana and therefore denies the Defendant’s Motion for




      1
          Ind. Code § 35-48-4-1.1(a)(1) (2006).
      2
          Ind. Code § 35-48-4-14.5(c) (2006).


      Court of Appeals of Indiana | Memorandum Decision 56A03-1510-CR-1614 | May 17, 2016   Page 2 of 5
      Modification of Sentence or Alternative Sentence.” (App. at 18.) Northern

      filed a motion to reconsider, which the trial court also denied.


                                     Discussion and Decision
[4]   Northern argues, and the State agrees, that the trial court erred when it

      determined it needed the prosecutor’s consent to consider the merits of

      Northern’s motion to modify his sentence. In light of statutory amendments

      that became effective just before Northern filed his petition, we agree the trial

      court erred.


[5]   Generally we review denial of a motion to modify a sentence for an abuse of

      discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). However, we

      “review matters of statutory interpretation de novo because they present pure

      questions of law.” State v. Brunner, 947 N.E.2d 411, 416 (Ind. 2011), reh’g

      denied.


[6]   At issue in this case is Indiana Code § 35-38-1-17, which defines when a trial

      court has authority to modify a sentence. In 2013, the statute provided a

      defendant who had served more than 365 days of his sentence could move to

      have his sentence modified by the trial court, “subject to the approval of the

      prosecuting attorney.” Ind. Code § 35-38-1-17(b) (2013) (emphasis added). Thus,

      if the prosecutor did not approve, the trial court had no authority to modify a

      sentence.


[7]   Effective July 1, 2014, our legislature eliminated the need for the prosecuting

      attorney’s approval. See Ind. Code § 35-38-1-17(c) (2014) (providing, after
      Court of Appeals of Indiana | Memorandum Decision 56A03-1510-CR-1614 | May 17, 2016   Page 3 of 5
      defendant has served 365 days, court has authority to reduce or suspend

      sentence to a sentence available at the time of sentencing and “court must

      incorporate its reasons in the record”). However, another statute that also took

      effect in 2014 made the new version of Indiana Code § 35-38-1-17 inapplicable

      to “(1) penalties incurred; (2) crimes committed; or (3) proceedings begun;

      before [July 1, 2014]. Those penalties, crimes, and proceedings continue and

      shall be imposed and enforced under prior law as if [the new sentencing laws]

      had not been enacted.” Ind. Code § 1-1-5.5-21(a) (2014). Accordingly, if

      Northern, who was sentenced in 2012, had petitioned for sentence modification

      in 2014, the court could not have modified his sentence without the

      prosecutor’s approval. See, e.g., Swallows v. State, 31 N.E.3d 544, 547 (Ind. Ct.

      App. 2015) (holding defendant sentenced in 1989 had no right to sentence

      modification without prosecutor’s approval under 2014 version of Ind. Code §

      35-38-1-17), trans. denied, superseded by statutory amendment.


[8]   Then, however, the legislature passed Public Law 164-2015, which took effect

      May 5, 2015. That law amended Indiana Code § 35-38-1-17 to explicitly

      provide the sentencing relief available therein applied retroactively to “a person

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

      Code § 35-38-1-17(a) (2015); see also Vazquez v. State, 37 N.E.3d 962, 964 (Ind.

      Ct. App. 2015) (discussing statutory change). As such, Northern, who was

      sentenced in 2012, became eligible to petition the trial court for reduction or

      suspension of his sentence without the approval of the prosecuting attorney. See

      Ind. Code § 35-38-1-17 (2015). Therefore, as Northern argues, and the State


      Court of Appeals of Indiana | Memorandum Decision 56A03-1510-CR-1614 | May 17, 2016   Page 4 of 5
       concedes, the trial court erred when it denied Northern’s motion based solely

       on the lack of prosecutorial approval.


                                                 Conclusion
[9]    We reverse the denial of Northern’s motion for modification of his sentence,

       and we remand for the trial court to consider the merits of Northern’s petition.


[10]   Reversed and remanded.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 56A03-1510-CR-1614 | May 17, 2016   Page 5 of 5
