MEMORANDUM DECISION
                                                                      Mar 20 2015, 7:24 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.



APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Jerry Wilson                                             Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Jerry Wilson,                                            March 20, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A05-1409-CR-455
        v.                                               Appeal from the Delaware Circuit
                                                         Court; The Honorable Linda Ralu
                                                         Wolf, Judge;
State of Indiana,                                        18C03-1205-FA-7
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A05-1409-CR-455 | March 20, 2015         Page 1 of 4
[1]   Jerry Wilson appeals the denial of his motion for modification of sentence or

      for alternative placement. Wilson has not demonstrated an abuse of discretion.


[2]   We affirm.


                                  Facts and Procedural History

[3]   In 1996, Wilson was sentenced to fifty years in prison for committing Class A

      felony burglary. In July 2011, Wilson filed a “Verified Motion for Modification

      of Sentence, or in the Alternative, Motion for Alternative Placement,” (App. at

      3), and the trial court directed the State to respond. After it did so, the trial

      court denied Wilson’s motion. In its order the trial court explicitly said it was

      denying Wilson’s motion “due to the very serious nature of the offense for

      which he is serving an executed sentence of fifty (50) years.”1 (App. at 1.)


                                      Discussion and Decision
[4]   Ind. Code § 35-38-1-17(c) provides that if more than a year has elapsed since the

      convicted person began serving his sentence, “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.”

      A decision to reduce or suspend a sentence is discretionary, Catt v. State, 749

      N.E.2d 633, 643 (Ind. Ct. App. 2001), trans. denied, and the fact that the process




      1
        Wilson asserts in his brief he “has an excellent conduct history (Apdx.E)” and the trial court “did not
      mention anything about conducting an evaluation on Wilson to determine if his conduct is good or bad.”
      (Appellant’s Br. at 2.) The part of the Appendix to which Wilson directs us says nothing about his “conduct
      history.”

      Court of Appeals of Indiana | Memorandum Decision 18A05-1409-CR-455 | March 20, 2015             Page 2 of 4
      of rehabilitation may have started does not compel a reduction or other

      modification in sentence. Id.


[5]   Before July 1, 2014, Ind. Code § 35-38-1-17(b) provided “the court may reduce

      or suspend the sentence, subject to the approval of the prosecuting attorney.”

      (Emphasis added.) Under the version of the statute that was effective July 1,

      2014, the prosecutor’s approval is no longer required.


[6]   Wilson asserts the trial court’s decision “is in direct violation of the legislature’s

      revision of the modification I.C. 35-38-1-17 statute for July 1, 2014.”

      (Appellant’s Br. at 3.) His argument appears to be based on the premise the

      trial court did not properly exercise its discretion because “the court shows no

      compliance to the new revision by (waiting) [sic] on the approval of the

      prosecuting attorney.” (Id. at 4.)


[7]   Wilson’s concern is understandable. The State’s answer to Wilson’s petition

      was filed on August 19, 2014, some fifty days after the statutory revision had

      become law, yet the prosecutor said in that answer “the prosecutor must

      consent to any modification of said sentence. The State does not consent to

      such a modification.” (App. C.) But at that time, the requirement that the

      prosecutor consent was no longer the law.


[8]   Despite the prosecutor’s misstatement of the law, we cannot find reversible

      error, as we must presume the trial court disregarded the misstatement. We

      presume the trial court knows the law, Emerson v. State, 695 N.E.2d 912, 919

      (Ind. 1998), and Wilson has not provided us with evidence rebutting that

      Court of Appeals of Indiana | Memorandum Decision 18A05-1409-CR-455 | March 20, 2015   Page 3 of 4
      presumption. Nor did the trial court indicate it was declining to modify the

      sentence because the prosecutor purported to withhold consent. In fact, it

      explicitly noted it was aware of the statutory revision: “Court is aware of the

      revision in I.C. 35-38-1-17. As a practice this Court always provides for input

      from each party before rendering a ruling on a pending motion.” (App. at 1.)

      As Wilson did not show the trial court believed the prosecutor’s purported

      withholding of consent to be determinative, we need not reverse. See Hedrick v.

      State, 229 Ind. 381, 390, 98 N.E.2d 906, 910 (1951) (court will not reverse for

      errors that in no way prejudiced the substantial rights of the appellant).


[9]   Affirmed.


      Barnes, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A05-1409-CR-455 | March 20, 2015   Page 4 of 4
