                                                                                 Apr 30 2015, 9:28 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Heath Y. Johnson                                           Gregory F. Zoeller
      Johnson & Gray                                             Attorney General of Indiana
      Franklin, Indiana
                                                                 Angela N. Sanchez
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Mitchell Swallows,                                        April 30, 2015
                                                                Court of Appeals Case No.
      Appellant-Defendant,                                      03A05-1412-CR-549
              v.                                                Appeal from the
                                                                Bartholomew Circuit Court
      State of Indiana,
                                                                The Honorable Stephen R. Heimann,
      Appellee-Plaintiff.                                       Judge
                                                                Cause No. 85-CF-247




      Kirsch, Judge.

[1]   Mitchell Swallows appeals the trial court’s denial of his petition to modify his

      sentence, contending that the trial court erred in finding that the revised

      modification statute, which became effective July 1, 2014, did not apply to his

      sentence.




      Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015                           Page 1 of 7
[2]   We affirm.1


                                   Facts and Procedural History
[3]   In 1985, the State charged Swallows with two counts of attempted murder, four

      counts of criminal confinement, one count of attempted criminal deviate

      conduct, and one count of rape. A jury found him guilty of all charges, and on

      December 18, 1989, the trial court sentenced him to an aggregate sentence of

      100 years.


[4]   On October 1, 2014, Swallows filed a petition for reduction of sentence, and the

      prosecutor filed an objection to the petition. The trial court denied Swallows’s

      petition on November 5, 2014, with the following reasoning:

               1. The defendant was sentenced on December 18, 1989.
               2. Indiana Code 35-38-1-17(b) provides: “If more than three hundred
               sixty-five (365) days have elapsed since the defendant began serving
               the sentence . . . , the Court may reduce . . . the sentence, subject to
               the approval of the prosecuting attorney.”
               3. The prosecuting attorney has objected to the request. Therefore,
               the Court has no authority to modify the sentence since more than
               three hundred and sixty-five (365) days have elapsed since the
               defendant began serving the sentence.
               4. Effective July 1, 2014, the criminal code was revised regarding
               whether a sentence modification request is subject to the approval of



      1
        In its brief, the State notes that Appellant’s Appendix “includes only a copy of the CCS, the notice of
      appeal with the trial court’s order attached, and the notice of completion of the clerk’s record. It does not
      include any documents related to the underlying case, such as the original sentencing order, which would
      normally be necessary for review of the denial of a motion to modify a sentence. However, because
      Swallows only asks this Court to review the narrow legal question of whether the amended statute applies to
      him and does not ask this court to reduce his sentence, the State did not seek to compel the filing of a
      conforming appendix.” Appellee’s Br. at 1-2 n.1. We agree with the State’s assessment.

      Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015                            Page 2 of 7
              the prosecuting attorney. This Court finds that a sentence imposed
              prior to July 1, 2014 is still subject to the approval of the prosecuting
              attorney.
              ....
              IT IS THEREFORE ORDERED that the Petition for Reduction of
              Sentence is denied. This is a final order. . . .
      Appellant’s Br. at 11 (emphasis in original). Swallows now appeals.


                                      Discussion and Decision
[5]   Swallows contends that the trial court erred by concluding that the revised

      sentence modification statute that became effective July 1, 2014, does not apply

      to his sentence. Essentially, Swallows is asking this court to reverse the denial

      of his petition for modification because the trial court erroneously determined it

      did not have authority under the current version of Indiana Code section 35-38-

      1-17.


[6]   We review a trial court’s denial of a petition to modify a sentence only for

      abuse of discretion. Hobbs v. State, 26 N.E.3d 983, 985 (Ind. Ct. App. 2015). If

      the ruling rests on a question of law, however, we review the matter de novo.

      State v. Holloway, 980 N.E.2d 331, 334 (Ind. Ct. App. 2012). Matters of

      statutory interpretation present pure questions of law. State v. Brunner, 947

      N.E.2d 411, 416 (Ind. 2011) (citing Gardiner v. State, 928 N.E.2d 194, 196 (Ind.

      2010)).


[7]   The first step in interpreting a statute is to determine whether the legislature has

      spoken clearly and unambiguously on the point in question. City of Carmel v.

      Steele, 865 N.E.2d 612, 618 (Ind. 2007). “When a statute is clear and

      Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015             Page 3 of 7
      unambiguous, we need not apply any rules of construction other than to require

      that words and phrases be taken in their plain, ordinary, and usual sense.” Id.

      “However, when a statute is susceptible to more than one interpretation it is

      deemed ambiguous and, thus, open to judicial construction. And when faced

      with an ambiguous statute, other well-established rules of statutory construction

      are applicable.” Id. “One such rule is that our primary goal of statutory

      construction is to determine, give effect to, and implement the intent of the

      Legislature.” Id. “To effectuate legislative intent, we . . . examine the statute as

      a whole. And we do not presume that the Legislature intended language used

      in a statute to be applied illogically or to bring about an unjust or absurd result.”

      Id.


[8]   Indiana Code section 35-38-1-17 addresses the reduction or suspension of a

      sentence. Prior to July 1, 2014, that statute provided that a trial court lost

      jurisdiction to modify a defendant’s sentence after 365 days unless the

      prosecuting attorney consented to the modification.2 In pertinent part, it

      provided:

              (b) If more than three hundred sixty-five (365) days have elapsed since
              the convicted person 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. . . .




      2
        Swallows committed his crimes in 1985. At that time, Indiana Code section 35-38-1-17 allowed a trial
      court to reduce or suspend a sentence only during the first 180 days after the defendant began serving his
      sentence. Nevertheless, we refer to the 365 day window because that is the time frame used by the trial court
      and both parties, and under the facts of this case, the distinction between 180 days and 365 days is not
      relevant.

      Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015                           Page 4 of 7
       Ind. Code § 35-38-1-17(b) (2013) (emphasis added).


[9]    Applying that statute to Swallows’s modification request is simple: the

       prosecuting attorney did not approve, so the trial court could not modify his

       sentence. However, Swallows contends he is entitled to the benefit of the

       revised sentence modification statute, which was part of an overhaul of our

       criminal code pursuant to P.L. 158–2013 and P.L. 168–2014. This revision

       resulted in, among other things, the elimination of the prosecutor’s veto

       regarding a petition for sentence modification. Indiana Code section 35-38-1-

       17, which became effective July 1, 2014, now provides:

               (c) 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
               authorized to impose at the time of sentencing. The court must
               incorporate its reasons in the record.
       See Ind. Code § 35-38-1-17(c) (2014); see also Ind. P.L. 168-2014, § 58 (effective

       July 1, 2014); Ind. P.L. 158-2013, § 396 (effective July 1, 2014). As part of the

       overhaul, the Legislature included a saving clause stating, “A SECTION of

       P.L.158-2013 or P.L.168-2014 does not affect: (1) penalties incurred; (2) crimes

       committed; or (3) proceedings begun; before [July 1, 2014]. Those penalties,

       crimes, and proceedings continue and shall be imposed and enforced under

       prior law as if that SECTION of P.L.158-2013 or P.L.168-2014 had not been

       enacted.” Hobbs, 26 N.E.3d at 985 (citing Ind. Code § 1-1-5.5-21 (a)).


[10]   Our decision is governed by this court’s reasoning in Hobbs. Hobbs was

       convicted in 2006 for offenses he committed in 2005. Id. at 984-85. The trial

       Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015           Page 5 of 7
court sentenced him to an aggregate sentence of twenty-three years. Id. at 985.

Hobbs’s convictions and sentence were affirmed on appeal. Id. Thereafter, he

petitioned for post-conviction relief. The post-conviction court’s denial of his

petition was affirmed on appeal. Id. Finally, on July 23, 2014, Hobbs filed a

petition for modification of his sentence pursuant to Indiana Code section 35-

38-1-17(c) (2014). Id. Our court denied Hobbs’s petition on the basis that the

revised version of that statute did not apply to him. The Hobbs Court reasoned:

        [Indiana Code section 35-38-1-17(c)] became effective July 1, 2014, as
        part of the General Assembly’s overhaul of our criminal code pursuant
        to P.L. 158-2013 and P.L. 168-2014. It was not in effect at the time
        Hobbs committed his offense against L.M.; rather, the law in effect at
        that time stated in relevant part: “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.” I.C. § 35-38-1-17(b) (2005) (emphasis added);
        see also Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008) (“The
        sentencing statute in effect at the time a crime is committed governs
        the sentence for that crime.”).
        Despite Hobbs’[s] assertions to the contrary on appeal, there is no
        question that the current version of Indiana Code Section 35-38-1-17
        does not apply to him. I.C. § 1-1-5.5-21 (“The general assembly does
        not intend the doctrine of amelioration ... to apply to any SECTION
        of P.L. 158-2013 or P.L. 168-2014”); see also Marley v. State, 17 N.E.3d
        335, 340 (Ind. Ct. App. 2014) (“It is abundantly clear ... that the
        General Assembly intended the new criminal code to have no effect on
        criminal proceedings for offenses committed prior to the enactment of
        the new code.”), trans. denied. Hobbs’[s] arguments to the contrary are
        without merit.
26 N.E.3d at 985-86.




Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015            Page 6 of 7
[11]   Noting the plain meaning of the savings clause, and following the intent of the

       Legislature and our court’s reasoning in Hobbs, we conclude that the current

       version of Indiana Code section 35-38-1-17, which became effective July 1,

       2014, does not apply to Swallows’s petition to modify a sentence that he began

       serving in 1989. The trial court did not err in denying Swallows’s petition to

       modify his sentence.


[12]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015   Page 7 of 7
