MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jul 15 2016, 9:13 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Brian Firestone                                          Gregory F. Zoeller
Wabash Valley Correctional Facility                      Attorney General of Indiana
Carlisle, Indiana                                        Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Firestone,                                         July 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1511-CR-2029
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G06-0104-CF-1083368



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2029 | July 15, 2016           Page 1 of 6
                                            Case Summary
[1]   Fourteen years after he was convicted of class A felony conspiracy to commit

      murder, class A felony kidnapping, and class C felony sexual battery, Brian

      Firestone filed a petition for modification of his eighty-eight-year sentence. The

      trial court denied his petition, and he now appeals. Because the trial court

      lacked authority to modify Firestone’s sentence without the approval of the

      prosecutor, we find no error in its denial of his petition for sentence

      modification. As such, we affirm.


                              Facts and Procedural History
[2]   One night in August 2001, Firestone and Jamie Robinson abducted seventeen-

      year-old A.G. as she left work at the Brown County Inn. The two men took

      A.G.’s vehicle and drove her to Robinson’s home. They cut off her clothing

      with a knife, and Firestone held her down while Robinson tied her to the bed

      with rope and duct tape. Firestone touched her breasts and genitals and

      watched as Robinson raped her.


[3]   Firestone and Robinson put A.G. back into the vehicle, engaged the safety

      locks to prevent her escape, and drove to Missouri. The two men agreed to use

      her as a sex slave and then kill her when they got to the mountains.

      Meanwhile, A.G.’s parents notified the Brown County Sheriff’s Department

      about their missing daughter. At some point, Firestone drove the vehicle off the

      road and damaged it to the extent that it would not run. Missouri law

      enforcement located the vehicle with all three occupants still inside.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2029 | July 15, 2016   Page 2 of 6
[4]   The State charged Firestone with class A felony conspiracy to commit murder,

      class A felony kidnapping, class B felony criminal confinement, class C felony

      sexual battery, class D felony auto theft, and class B felony robbery. A jury

      found him guilty on all charges except for class B felony robbery. The trial court

      merged the criminal confinement and auto theft convictions into the class A

      felony kidnapping conviction. The trial court sentenced Firestone to

      consecutive terms of thirty years for conspiracy to commit murder, fifty years

      for kidnapping, and eight years for sexual battery, for an aggregate eighty-eight-

      year term.


[5]   Fourteen years later, Firestone wrote a letter to the prosecutor asking for

      approval to file a petition for modification of sentence. He did not receive a

      response from the prosecutor and thereafter filed a petition with the trial court

      for modification of his sentence. The trial court denied his petition in an order

      reading in part as follows: “After reviewing the file and the Defendant’s

      petition, the Court believes the original sentence imposed was appropriate given

      the seriousness of the offense and the defendant’s criminal history. Therefore,

      no modification will be considered.” Appellant’s App. at 12. Firestone now

      appeals.


                                  Discussion and Decision
[6]   Firestone maintains that the trial court erred in denying his petition for

      modification of sentence. We review a trial court’s decision on a petition to

      modify sentence for an abuse of discretion. Carr v. State, 33 N.E.3d 358, 358


      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2029 | July 15, 2016   Page 3 of 6
      (Ind. Ct. App. 2015), trans. denied. An abuse of discretion occurs when a trial

      court’s decision is “clearly against the logic and effect of the facts and

      circumstances before the court.” Id. at 359.


[7]   Indiana Code Section 35-38-1-17, as it existed at the time of Firestone’s

      offenses, reads in pertinent part as follows:

                (b) If more than three hundred sixty-five (365) days have elapsed
               since the defendant began serving the sentence and after a
               hearing at which the convicted person is present, the court may
               reduce or suspend the sentence, subject to the approval of the
               prosecuting attorney.


      (Emphasis added.) 1 A trial court lacks statutory authority to modify a

      defendant’s sentence if more than 365 days have elapsed since that defendant

      began serving his sentence and the prosecutor does not approve the

      modification. Reed v. State, 796 N.E.2d 771, 774 (Ind. Ct. App. 2003).


[8]   Firestone was sentenced in 2001 but did not file his petition for modification of

      sentence until 2015. Since the 365-day period had elapsed, the approval of the



      1
        Indiana Code Section 35-38-1-17 has undergone numerous amendments over the last twenty years. The
      parties appear to rely on relatively recent versions of the statute, which include new filing limitations as well
      as the classification of certain convicted persons as “violent criminals.” However, the statute as it existed at
      the time of Firestone’s offenses made no such distinctions. In Jaco v. State, 49 N.E.3d 171, 173-75 (Ind. Ct.
      App. 2015), another panel of this Court discussed at length whether the proper version of the statute to be
      applied is the one in effect at the time the defendant committed his offense or the one in effect on the date of
      his petition for sentence modification. The Jaco court held that a defendant seeking sentence modification
      shall be subject to the version of the statute in effect when he committed the offense. Id. at 173. Because
      Firestone committed his offenses in August 2001, we apply the statute as it existed at that time. No hearing
      was held on Firestone’s petition, but because the prosecuting attorney did not approve of reducing or
      suspending Firestone’s sentence and the trial court did not do so, no hearing was required.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2029 | July 15, 2016                   Page 4 of 6
      prosecuting attorney was necessary. Firestone wrote the prosecutor’s office in

      August 2015 to request approval to file a petition for modification of sentence.

      The record is devoid of any evidence that the prosecutor gave its consent to

      Firestone’s request for sentence modification. Firestone argues that the

      prosecutor’s lack of response/objection to his correspondence is “acquiescence

      tantamount to consent,” citing State v. Harper, 8 N.E.3d 694, 695 (Ind. 2014).

      Appellant’s Br. at 4.


[9]   In Harper, our supreme court addressed the question of whether a prosecutor’s

      silence can be deemed consent to sentence modification where the petition is

      filed after the 365-day period has elapsed. Id. There, the trial court held a

      hearing on the defendant’s modification petition, and the deputy prosecutor

      was in attendance and did not object. The trial court indicated its inclination to

      grant the petition but emphasized that it lacked the authority to do so absent the

      approval of the prosecutor. Id. at 697. The deputy prosecutor indicated that he

      would think about it and talk it over with another person from the prosecutor’s

      office. Id. At the close of the hearing, the trial court reiterated its inclination to

      grant the petition and directed the prosecutor’s office to give its input “in the

      near future” or “in the next week or so.” Id. When the prosecutor’s office

      failed to respond in the ensuing five weeks, the trial court granted the

      defendant’s modification petition. Id. at 697-98. Another panel of this Court

      reversed, and on transfer, our supreme court held that under the unique

      circumstances of that case, the prosecutor’s conduct was sufficient to establish

      prosecutorial consent to modification. Id. at 697.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2029 | July 15, 2016   Page 5 of 6
[10]   We find Harper distinguishable. There, the trial court specifically asked the

       prosecutor’s office for a response – within a week. In contrast, here, Firestone

       sought prosecutorial approval for sentence modification through a letter. He

       did not receive a response and filed a modification petition with the trial court.

       The trial court denied Firestone’s petition after reviewing the file and petition.

       There is nothing in the record indicating any unique circumstance that would

       establish tacit prosecutorial approval.


[11]   Simply put, the prosecutor never approved of a sentence modification for

       Firestone, and as such, the trial court did not have statutory authority to grant a

       sentence modification. 2 Even if it had, the record supports the trial court’s

       conclusion that modification was not appropriate given Firestone’s criminal

       history and the heinous nature of Firestone’s offenses in this case. Thus, the

       trial court therefore acted within its discretion in denying Firestone’s petition

       for sentence modification. Accordingly, we affirm.


[12]   Affirmed.


       Najam, J., and Robb, J., concur.




       2
         Citing paragraph (e)(2) of the current version of Indiana Code Section 35-38-1-17, Firestone also asserts
       that the trial court was required by statute to order a report from the Department of Correction or take into
       consideration his rehabilitative efforts while imprisoned. However, paragraph (e)(2) was not included in the
       2001 version of the statute, and similar language included in the 2001 version concerning obtaining a report
       from the Department of Correction applies in situations where the 365-day period has not yet elapsed. Ind.
       Code § 35-38-1-17(a)(3) (2001). Even so, the record reflects that the trial court was aware of Firestone’s
       remorse and efforts at rehabilitation and nevertheless denied the petition.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2029 | July 15, 2016               Page 6 of 6
