MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                             Mar 29 2019, 7:48 am
the defense of res judicata, collateral
                                                                              CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court



APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Gary Amick                                               Curtis T. Hill, Jr.
Branchville, Indiana                                     Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Amick,                                              March 29, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-CR-2371
        v.                                               Appeal from the Scott Circuit
                                                         Court
State of Indiana,                                        The Honorable Roger L. Duvall,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         72C01-1512-F5-63



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019                    Page 1 of 8
                                          Case Summary
[1]   Pro-se Appellant Gary Amick (“Amick”), who is incarcerated in the Indiana

      Department of Correction (“the DOC”), appeals the denial of his “Verified

      Petition for Examination for Treatment.”1 Amick presents the sole issue of

      whether the trial court erred in deferring to the DOC upon Amick’s claim that

      he was eligible for a post-conviction substance abuse examination. We affirm.



                                 Facts and Procedural History
[2]   On August 1, 2016, Amick pled guilty to a Level 5 felony possession of a

      handgun without a license under cause number 72C01-1512-F5-63 and a Class

      C felony dealing in a scheduled IV controlled substance under cause number

      72C01-1405-FA-7. Pursuant to Amick’s plea agreement with the State, twelve

      other counts against Amick were dismissed, a petition to revoke a suspended

      sentence in another case was dismissed, and Amick received two consecutive

      sentences of four years. The plea agreement provided that the fixed terms were

      to be fully executed in the DOC.


[3]   At the sentencing hearing on September 12, 2016, Amick’s counsel requested a

      recommendation to the DOC that Amick be allowed to participate in a

      purposeful incarceration program. The prosecutor responded that the State was

      not specifically agreeing to a sentence modification that would be contingent




      1
          See App. Vol. II, pg. 23.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019   Page 2 of 8
      upon completion of the purposeful incarceration program, but continued, “I

      guess if we could maybe put it at the end of his sentence.” (Tr. Vol. II, pg. 15.)

      The trial court advised Amick that, after Amick served eighteen months, the

      trial court would request a progress report from the DOC, and “if things look

      good from participation up there, then I can make the modification, put on the

      order saying you can participate in purposeful incarceration.” Id. at 16.


[4]   On October 14, 2016, Amick filed a motion requesting that the trial court

      recommend purposeful incarceration. On May 23, 2017, the trial court

      received and reviewed a progress report from the DOC. At that time, Amick

      had begun participation in a therapeutic community program and the trial court

      made an entry into the Chronological Case Summary (“CCS”) indicating “it is

      in Defendant’s best interest to complete that program before consideration of a

      modification of sentence.” (App. Vol. II, pg. 11.)


[5]   On January 15, 2018, Amick filed a notice of completion of his therapeutic

      community program, a “motion for order of evaluation,” a motion for court

      ordered evaluation, and a motion for modification of sentence. Id. at 13 – 14.

      On January 23, 2018, the trial court issued an order granting the motion for a

      court-ordered evaluation.2 On February 16, 2018, after the State filed its




      2
       The CCS does not specify the legal authority upon which the order is based or the scope of the court-
      ordered evaluation. It is not evident from the record that the evaluation was in fact conducted.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019                    Page 3 of 8
      response, the trial court denied Amick’s petition for sentence modification.

      Amick appealed. A panel of this Court affirmed the denial, concluding:


              The plea agreement that Amick and the State agreed to, and the
              trial court accepted, provided for a fixed sentence of eight years.
              No other sentence was authorized by the plea agreement.
              Therefore, the trial court could not modify Amick’s sentence
              because the eight-year sentence was the only one it was
              authorized to impose.


      Amick v. State, No. 18A-CR-1027, slip op. at 2 (Ind. Ct. App. Nov. 8, 2018).

      Amick petitioned for transfer to the Indiana Supreme Court, and that petition is

      pending.3


[6]   Before the appellate opinion was handed down, Amick filed a series of motions

      in the trial court. On August 20, 2018, he filed a “Verified Petition for

      Placement in the Post-Conviction Forensic Diversion Program – Stay of

      Execution of Sentence.” (App. Vol. II, pg. 20.) The motion was summarily

      denied, as was Amick’s motion to reconsider. On September 11, 2018, Amick

      filed his “Motion for Evaluation and Placement into Addiction Treatment.” Id.

      at 21. On September 17, 2018, Amick filed his “Verified Petition for

      Examination for Treatment.” Id. The trial court denied the motion, making

      the following CCS entry:




      3
       On February 25, 2019, the Indiana Supreme Court granted Amick’s motion to allow the filing of a belated
      petition to transfer.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019                 Page 4 of 8
              Defendant having filed his Petition for Examination for
              Treatment, Court now denies Defendant’s Petition and finds that
              Treatment and program issues should be the decision of the
              Department of Corrections at this time.


      Id. Amick now appeals.



                                Discussion and Decision
[7]   As a threshold matter, we address the State’s request that Amick’s appeal be

      dismissed on res judicata grounds. “An issue which previously has been raised

      and determined adverse to the appellant’s position is res judicata.” Arthur v.

      State, 663 N.E.2d 529, 531 (Ind. 1996). The State asserts that, regardless of

      how Amick described the motion addressed by the order now on appeal, his

      ultimate intent is to secure a sentence modification. Amick’s petition to the

      trial court included the following prayer for relief:


              Defendant, pro-se, hereby respectfully requests this Court to find
              him eligible for treatment, grant his request for treatment, certify
              to the Division of Mental Health that he may request treatment,
              order his examination by the Division pursuant to I.C. 12-23-7-3,
              and for all other relief just and proper in the premises.


      (App. Vol. II, pg. 25.) The trial court’s order solely addressed the request for an

      examination, finding that decision to be within the purview of the DOC. To

      the extent that Amick argues on appeal that he is entitled to a change of

      placement, we do not address the matter, as his claim that he should have

      received sentence modification is pending in another court. We consider only


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019   Page 5 of 8
       whether Amick was entitled to have the trial court order his examination by the

       Division of Mental Health and Addiction (“the Division”). See Ind. Code § 12-

       21-1-1.


[8]    In his pro-se motion, Amick requested that the trial court order his examination

       “pursuant to Indiana Code 12-23-6.1-1, 12-23-8.1-(1) (2) (3), & 12-23-10.1-(1)

       (2) & (3).” (App. Vol. II, pg. 23.) On appeal, Amick does not address Indiana

       Code Section 12-23-10.1, which permits “an individual who believes the

       [defendant] is a drug abuser” to request treatment. He presents cursory

       arguments as to the other statutory provisions.


[9]    Indiana Code Section 12-23-6.1-1, captioned “Request for treatment in lieu of

       prosecution or imprisonment,” permits a convicted felon who is a drug abuser

       to request treatment under the supervision of the Division, unless certain

       conditions exist (such as the offense is a forcible felony, or the person was

       admitted to a specified treatment program on two or more occasions within the

       preceding two years). On appeal, Amick develops no argument beyond

       asserting that he has an addiction issue and is not subject to one of the

       exclusionary conditions.


[10]   Amick also claims that he “meets the criteria set forth under Indiana Code 12-

       23-8.1-3.” Appellant’s Brief at 8. According to Amick, he “clearly has an

       addiction issue that needs to be addressed” and “[u]nder Title 12, the legislative

       body has provided the Courts an avenue to allow treatment even after a

       conviction has been deemed.” Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019   Page 6 of 8
[11]   Indiana Code Section 12-23-8.1-3, part of a chapter captioned “Treatment and

       Probation Following Criminal Convictions,” provides:


               If an individual requests to undergo treatment or is certified for
               treatment, the court may order an examination by the division to
               determine whether the individual is a drug user or an alcoholic
               and is likely to be rehabilitated through treatment.


       Indiana Code Section 12-23-8.1-4 provides:


               The court may deny the request if after conducting a presentence
               investigation the court finds that the individual would not qualify
               under criteria of the court to be released on probation.


[12]   A trial court generally has no authority over a defendant after sentencing. State

       v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). After issuing a sentencing order,

       which is a final judgment, a trial court retains only such continuing jurisdiction

       as permitted by the judgment or granted to the court by statute or rule. State v.

       Porter, 729 N.E.2d 591, 592 (Ind. Ct. App. 2000). Instead, after a sentence is

       pronounced, jurisdiction over the defendant goes to the DOC. Dier v. State, 524

       N.E.2d 789, 790 (Ind. 1988).


[13]   To the extent that Amick claims Indiana Code Sections 12-23-6.1-1 and 12-23-

       8.1-3 confer continuing jurisdiction upon the trial court, we observe that

       “statutory interpretation is a question of law and determinations in that regard

       are subject to de novo appellate review.” Higgins v. State, 855 N.E.2d 338, 341

       (Ind. Ct. App. 2006). Our primary goal is to ascertain the legislature’s intent

       and we look first to the statutory language itself and give effect to the plain and

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019   Page 7 of 8
       ordinary meaning of the terms. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind.

       2016). “[W]e will not read into the statute that which is not the expressed

       intent of the legislature. As such, it is just as important to recognize what the

       statute does not say as it is to recognize what it does say.” N.D.F. v. State, 775

       N.E.2d 1085, 1088 (Ind. 2002) (citation omitted).


[14]   In context, the statutes identified by Amick provide options to the trial court

       after a defendant has been convicted but before a sentence is imposed. The

       language employed does not include a mandatory term such as “shall.” Nor is

       there language suggesting applicability post-sentence. Although the Legislature

       can permit retention of continuing jurisdiction in a specific area, see Indiana

       Code Section 35-38-1-17 (the sentence modification statute), there is no

       language suggesting that it chose to do so with respect to post-sentencing

       physical or mental examinations. The trial court did not err in concluding that

       the decision whether to so examine Amick is within the province of the DOC.


[15]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019   Page 8 of 8
