MEMORANDUM DECISION                                                       Aug 11 2015, 10:24 am


Pursuant to Ind. Appellate Rule 65(D), 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
Cynthia M. Carter                                        Gregory F. Zoeller
Law Office of Cynthia M. Carter, LLC                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Scottie Edwards,                                         August 11, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A04-1502-CR-47
        v.                                               Appeal from the Marion Superior
                                                         Cause No. 49G06-0102-PC-36584,
                                                         49G02-0102-CF-36584, 49G03-0102-
State of Indiana,                                        CF-3658
Appellee-Plaintiff.
                                                         The Honorable Mark D. Stoner,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-47 | August 11, 2015         Page 1 of 6
                                             Case Summary
[1]   Scottie Edwards appeals the denial of his petition for modification of his

      sentence. We affirm.


                                                     Issue
[2]   Edwards raises one issue, which we restate as whether the trial court properly

      denied his petition for modification of his sentence.


                                                     Facts
[3]   In 2001, Edwards stabbed Lynn Ford, who was dating Edwards’s ex-wife. The

      State charged Edwards with Class A felony attempted murder, and he was

      convicted by a jury. On direct appeal, Edwards’s conviction was reversed

      because the jury was erroneously instructed. See Edwards v. State, 773 N.E.2d

      360, 362 (Ind. Ct. App. 2002), trans. denied. Edwards was retried, convicted,

      and sentenced to forty years. On direct appeal, we concluded that the trial

      court improperly enhanced Edwards’s sentence based on Blakely v. Washington,

      542 U.S. 296 (2004). See Edwards v. State, 822 N.E.2d 1106, 1110 (Ind. Ct. App.

      2005). Following a hearing, Edwards was resentenced to forty years. Edwards

      appealed his sentence, and we determined that his sentence was not

      inappropriate. See Edwards v. State, No. 49A04-0702-CR-75 (Ind. Ct. App. Oct.

      22, 2007), trans. denied.


[4]   On December 19, 2014, Edwards filed a petition for modification of his

      sentence. The prosecutor did not respond to the petition. On January 6, 2015,


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-47 | August 11, 2015   Page 2 of 6
      the trial court denied Edwards’s petition. The trial court’s order provided in

      part:

              1. The court believes the original sentence imposed was appropriate
              given the seriousness of the offense and the defendant’s criminal
              history.
              2. The nature of the motion is better handled by a clemency petition to
              the Governor.
[5]   App. p. 61. Edwards now appeals.


                                                  Analysis
[6]   Edwards argues that the trial court erred in denying his petition for

      modification of his sentence. Generally, we review a trial court’s decision to

      modify a sentence for abuse of discretion. Gardiner v. State, 928 N.E.2d 194,

      196 (Ind. 2010). “An abuse of discretion occurs when the decision clearly

      contravenes the logic and effect of the facts and circumstances before the

      court.” Adams v. State, 960 N.E.2d 793, 796-97 (Ind. 2012).


[7]   As an initial matter, the parties dispute which version of the sentencing

      modification statute applies. Prior to July 1, 2014, if more than 365 days had

      elapsed since defendant began serving his or her sentence, a trial court could,

      after a hearing, reduce or suspend the sentence, subject to the approval of the

      prosecuting attorney. Ind. Code § 35-38-1-17 (2012). On July 1, 2014, an

      amended modification statute became effective. It provided in part:

              If more than three hundred sixty-five (365) days have elapsed since the
              convicted person began serving the sentence, the court may reduce or
              suspend the sentence and impose a sentence that the court was


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-47 | August 11, 2015   Page 3 of 6
              authorized to impose at the time of sentencing. The court must
              incorporate its reasons in the record.
      I.C. § 35-38-1-17(c) (2014). Issues arose regarding whether the amended statute

      applied to defendants who committed crimes before July 1, 2014. See, e.g.,

      Johnson v. State, No. 48A05-1408-CR-390 (Ind. Ct. App. June 25, 2015).

      Effective May, 5, 2015, the statute was amended again to clarify that the statute

      applies “to a person who: (1) commits an offense; or (2) is sentenced; before

      July 1, 2014.” I.C. § 35-38-1-17(a). The statute was also amended to define a

      person convicted of attempted murder as a “violent criminal.” I.C. § 35-38-1-

      17(d)(2) (2015). The newly amended statute provided:

              A convicted person who is a violent criminal may, not later than three
              hundred sixty-five (365) days from the date of sentencing, file one (1)
              petition for sentence modification under this section without the
              consent of the prosecuting attorney. After the elapse of the three
              hundred sixty-five (365) day period, a violent criminal may not file a
              petition for sentence modification without the consent of the
              prosecuting attorney.
      I.C. § 35-38-1-17(k) (2015).


[8]   The State contends that 2015 version of the statute applies to Edwards and that,

      because Edwards is a violent criminal, he could not file a petition for sentence

      modification without the consent of the prosecuting attorney. On the other

      hand, Edwards’s petition references the 2014 version of the statute and the trial

      court considered Edwards’s petition on the merits before the 2015 amendment

      became effective. On appeal, Edwards asserts that the 2014 version applies and

      that his appeal should be decided on the merits.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-47 | August 11, 2015   Page 4 of 6
[9]    Assuming Edwards is correct, he has not established that the trial court abused

       its discretion in denying his petition. Edwards contends that the trial court

       improperly used the Indiana Appellate Rule 7(B) standard in denying his

       petition. Under that standard an appellate court may revise a sentence “if, after

       due consideration of the trial court’s decision, the Court finds that the sentence

       is inappropriate in light of the nature of the offense and the character of the

       offender.” App. R. 7(B).


[10]   Although the trial court found Edwards’s sentence “was appropriate given the

       seriousness of the offense and the defendant’s criminal history[,]” we do not

       believe the trial court was applying the Appellate Rule 7(B) test of

       inappropriateness. App. p. 61. First, as our supreme court has explained of

       appellate review of a sentence, “We do not look to determine if the sentence

       was appropriate; instead we look to make sure the sentence was not

       inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Thus, the

       terms “appropriate” and “not inappropriate” are not interchangeable. Further,

       the trial court’s consideration of the seriousness of the offense and Edwards’s

       criminal history are not the equivalent of our review of “the nature of the

       offense and the character of the offender” under Appellate Rule 7(B). We are

       convinced the trial court applied the correct standard when it considered

       Edwards’s petition.


[11]   On the merits, Edwards faced a maximum sentence of fifty years for Ford’s

       attempted murder and was sentenced to forty years. There was evidence that

       then fifty-four-year old Edwards had been watching Ford, who was dating

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-47 | August 11, 2015   Page 5 of 6
       Edwards’s ex-wife. Edwards, 773 N.E.2d at 362. As Ford returned home after

       a date with Edwards’s ex-wife, Edwards approached Ford and stabbed him

       several times. Id. Ford was treated for stab wounds to the back, arm, side, and

       back of the head, and for a punctured lung. Id. Further, although Edwards’s

       criminal history is not extensive, it does include a conviction for criminal

       recklessness. Under these circumstances, Edwards has not shown that the trial

       court abused its discretion in denying his petition for sentence modification.


[12]   Edwards also claims that the trial court abused its discretion by abdicating its

       role of modifying sentences and suggesting that a clemency petition was a better

       avenue for Edwards. However, it is clear that the trial court considered the

       merits of Edwards’s petition and was not persuaded that modification of his

       sentence was proper. This suggestion was not an abuse of discretion.


                                                 Conclusion
[13]   Edwards has not shown that the trial court abused its discretion by denying his

       petition for sentence modification. We affirm.


[14]   Affirmed.


       Kirsch, J., and Najam, J., concur.




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