MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Mar 27 2018, 9:24 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
Michael W. Soule                                         Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael W. Soule,                                        March 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A02-1704-CR-951
        v.                                               Appeal from the
                                                         Huntington Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Thomas M. Hakes, Judge
                                                         Trial Court Cause No.
                                                         35C01-0811-FC-63



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1704-CR-951 | March 27, 2018          Page 1 of 8
[1]   In April 2009, Michael W. Soule (“Soule”) pleaded guilty to Class D felony

      forgery1 and Class D felony aiding in theft,2 and the trial court sentenced him to

      seven years on the forgery conviction and to two and one-half years on the

      aiding in theft conviction, to be served concurrent with each other but

      consecutive to a sentence in Noble County. Soule filed a Motion for Direct

      Placement to GPS and Daily Reporting, asking the trial court to modify his

      sentence from prison to GPS monitoring, and the trial court denied his motion.

      Soule, pro se, appeals and raises two issues that we consolidate and restate as:

      whether the trial court abused its discretion when it denied Soule’s Motion for

      Direct Placement to GPS and Daily Reporting.3


[2]   We affirm and remand.


                                       Facts and Procedural History
[3]   Prior to filing his Motion for Direct Placement to GPS and Daily Monitoring,

      Soule had filed a number of requests with the trial court seeking modification of



      1
          See Ind. Code § 35-43-5-2.
      2
          See Ind. Code §§ 35-43-4-2, 35-41-2-1.
      3
        The State cross-appeals and raises one issue: whether Soule’s appeal should be dismissed because he is
      appealing from a void trial court order. The State argues that, when Soule filed this appeal, he had a prior
      appeal pending; specifically, the instant appeal was filed after the Clerk’s Record in the prior appeal was
      complete in January 2017 and before that appeal was dismissed in May 2017. Therefore, the State argues, the
      trial court’s March 2017 order from which he now appeals was void because the trial court was without
      jurisdiction to issue it. Appellee’s Br. at 7-8. The State acknowledges that it previously filed with this Court a
      Motion to Dismiss Soule’s appeal, asking us to dismiss the appeal, in part on this same basis. After Soule
      filed a response to the State’s Motion to Dismiss, the motions panel of this court denied the State’s Motion to
      Dismiss. We decline to revisit the decision of our motions panel, and, rather, will address Soule’s appeal on
      its merits.



      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-CR-951 | March 27, 2018                  Page 2 of 8
      his sentence. On March 11, 2010, Soule filed a Motion to Have Consecutive

      Sentences Served Concurrently to the Noble County sentence, and the trial

      court denied Soule’s motion on March 12, 2010. On October 14, 2011, Soule

      filed a Petition for Placement in a Post-Conviction Diversion Program, and the

      trial court denied it on October 20, 2011. On May 12, 2012, Soule filed a

      Pleading Requesting Court to Remove Consecutive Part of Sentence, and the

      trial court denied the motion on May 3, 2012. In August 2016, Soule filed

      correspondence that requested placement on home detention; according to

      Soule, it was considered ex-parte communication and returned to him “un-

      read,” the State did not respond, and the trial court did not rule on the request.

      Appellant’s Br. at 4. On November 3, 2016, Soule filed a Motion for

      Modification of Sentence. The State filed an opposition, and, on November 21,

      2016, the trial court denied Soule’s Motion for Modification of Sentence. On

      December 20, 2016, Soule filed a notice of appeal with this court of the trial

      court’s denial. In January 2017, the Notice of Completion of Clerk’s Record

      was issued, and in May 2017, Soule’s appeal was dismissed with prejudice

      because he failed to file an Appellant’s Brief.


[4]   Meanwhile, on March 9, 2017, Soule filed in the trial court his Motion for

      Direct Placement to GPS and Daily Reporting, which is at issue in this appeal.

      The trial court treated Soule’s Motion as a motion for modification of sentence

      and forwarded Soule’s motion to the State for response. The State filed a

      response, opposing Soule’s motion. The State asserted that Soule’s Motion for

      Direct Placement to GPS and Daily Reporting was, in fact, a motion for


      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-CR-951 | March 27, 2018   Page 3 of 8
      sentence modification, and it “represents his sixth request for a sentence

      modification.” Appellant’s App. Vol. 2 at 15. The State argued:


              Given that the Defendant has filed five (5) previous petitions to
              modify his sentence during his consecutive period of
              incarceration, he was required to obtain the consent of the
              Prosecuting Attorney before filing this petition to modify his
              sentence. The Prosecuting Attorney does not consent to the
              Defendant filing his petition to modify.


      Id. On March 29, 2017, the trial court issued an order summarily denying

      Soule’s Motion for Direct Placement to GPS and Daily Reporting. Id. at 10.

      Soule now appeals.


                                     Discussion and Decision
[5]   Soule contends that the trial court erred when it did not modify his sentence. A

      trial court’s decision regarding the modification of a sentence is reviewed on

      appeal for an abuse of discretion. Carr v. State, 33 N.E.3d 358, 358 (Ind. Ct.

      App. 2015), trans. denied. An abuse of discretion occurs when the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before the court or when the court misinterprets the law. Id. at 359. To the

      extent that the issue presented here is one of statutory interpretation, we review

      the matter de novo. Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015),

      trans. denied.


[6]   A trial court generally retains no authority over a defendant after sentencing.

      Id. (citing State v. Harper, 8 N.E.3d 694, 696 (Ind. 2014)). One exception is


      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-CR-951 | March 27, 2018   Page 4 of 8
      Indiana Code section 35-38-1-17 (“the modification statute”), which gives trial

      courts authority under certain circumstances to modify a sentence after it is

      imposed. Id. The sentence modification statute provides, in pertinent part:


              (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.


      Ind. Code § 35-38-1-17(e).


[7]   Soule does not disagree that his Motion for Direct Placement to GPS and Daily

      Reporting constitutes a motion for sentence modification or that he had

      previously filed five requests for sentence modification. Rather, he argues that,

      pursuant to subjection (j)(2) of the sentence modification statute, he was not

      required to obtain the prosecutor’s approval before filing his motion.

      Subsection (j) reads:


              (j) This subsection applies only to a convicted person who is not
              a violent criminal. A convicted person who is not a violent
              criminal may file a petition for sentence modification under this
              section:

      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-CR-951 | March 27, 2018   Page 5 of 8
                      (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.


[8]   Soule’s argument on appeal is that subsection (j)(2) imposes a two-motion limit,

      after which a defendant must obtain the prosecutor’s approval, and, he claims,

      he had not reached that two-motion limit and, thus, did not need prosecutor

      approval. He explains that three of his motions were filed before subsection

      (j)(2) became effective, and another filing was not considered because it was

      deemed to be ex-parte communication, and, therefore, those four requests “do

      not count toward Soule’s two-motion limit,” such that he had only filed one

      motion for modification and could file another – the present one – without the

      prosecutor’s approval. Appellant’s Br. at 7-8.


[9]   Soule is correct that, in 2014, the sentence modification statute was amended,

      as part of a larger overhaul of the criminal code, and allowed nonviolent

      offenders “to twice pursue sentence modification without obtaining the

      prosecuting attorney’s consent.” Woodford v. State, 58 N.E.3d 282, 286 (Ind. Ct.

      App. 2016). 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.” Vazquez v. State, 37 N.E.3d 962, 964 (Ind. Ct.

      App. 2015). Thus, the sentence modification statute, as amended, applies to


      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-CR-951 | March 27, 2018   Page 6 of 8
       Soule, and under Indiana Code section 35-38-1-17(j)(2), he may seek

       modification twice during the duration of his sentence without obtaining the

       prosecutor’s consent.4 However, the modification statute expressly prohibits

       defendants from filing more than one motion for modification within a 365-day

       period without the consent of the prosecutor. Ind. Code § 35-38-1-17(j)(1)

       (stating nonviolent criminal may file petition for sentence modification not

       more than one time in any 365-day period without consent of prosecuting

       attorney).


[10]   Here, Soule’s Motion for Direct Placement to GPS and Daily Reporting was

       the second motion to modify sentence that he filed in less than one year, having

       filed one in November 2016 and the present one four months later, in March

       2017. Therefore, the prosecutor’s consent was required before the trial court

       could exercise statutory authority to modify his sentence. In this case, after

       Soule filed his motion, the State filed a response and objected to the filing of

       Soule’s motion. Given the prosecuting attorney’s objection, the trial court

       could not have granted Soule’s requested relief, and, thus, we find no abuse of

       discretion in the trial court’s decision to deny relief to Soule. However, we find

       that the trial court’s decision, which was based on the absence of the

       prosecutor’s consent, is more appropriately characterized as a dismissal, and

       thus we remand to the trial court with instructions to dismiss Soule’s Motion




       4
         Soule is classified as a nonviolent offender under the statute. See Ind. Code § 35-38-1-17(d) (listing “violent
       criminal” offenses).

       Court of Appeals of Indiana | Memorandum Decision 35A02-1704-CR-951 | March 27, 2018                  Page 7 of 8
       for Direct Placement to GPS and Daily Reporting. 5 See Vazquez, 37 N.E.3d at

       964 (holding that trial court properly dismissed defendant’s sentence

       modification petition because it was filed “just three months after his last

       petition”).


[11]   Affirmed and remanded.


[12]   Bailey, J., and Pyle, J., concur.




       5
         We note that Soule also challenges the lack of explanation in the trial court’s order, which stated, “Comes
       now the Court and denies the Defendant’s Motion for Direct Placement to GPS and Daily Reporting.”
       Appellant’s App. Vol. 2 at 10. Soule asserts that the trial court’s summary denial “appears to violate I.C. § 35-
       38-1-17(e)(2),” which permits a trial court to modify a sentence but requires the trial court to “incorporate its
       reasons in the record.” Appellant’s Br. at 9 n.3. Soule urges that “[i]f reasoning is required for the granting of
       a motion, it should be required for a denial too.” Id. We reject Soule’s claim that the trial court’s order was
       inadequate; subsection (h) of the statute expressly states, “The court may deny a request to suspend or reduce
       a sentence under this section without making written findings and conclusions.” Ind. Code § 35-38-1-17(h).

       Court of Appeals of Indiana | Memorandum Decision 35A02-1704-CR-951 | March 27, 2018                  Page 8 of 8
