MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                     FILED
Memorandum Decision shall not be regarded as                    Jun 27 2019, 8:03 am
precedent or cited before any court except for the                   CLERK
purpose of establishing the defense of res judicata,             Indiana Supreme Court
                                                                    Court of Appeals
collateral estoppel, or the law of the case.                          and Tax Court




APPELLANT PRO SE                                       ATTORNEYS FOR APPELLEE
Clifton K. Miller                                      Curtis T. Hill, Jr.
Michigan City, Indiana                                 Attorney General of Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Clifton K. Miller,                                         June 27, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-CR-3138
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Hon. Teresa Cataldo, Judge
Appellee-Respondent.                                       Trial Court Cause No.
                                                           20D03-0101-CF-14




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3138 | June 27, 2019            Page 1 of 5
                                          Case Summary
[1]   Clifton Miller was convicted of Murder in 2001, and the trial court sentenced

      him to sixty-five years of incarceration. In 2018, Miller petitioned the trial

      court to alter his placement from the Department of Correction (“the DOC”) to

      community corrections, on which petition the trial court declined to act four

      days later. Miller contends that the trial court improperly treated his purported

      motion for alternative placement as a petition for sentence modification and

      also seems to contend that the trial court’s refusal to act on his petition four

      days after it was submitted establishes a denial of access to the courts. Because

      we disagree with Miller’s contentions, we affirm.


                            Facts and Procedural History
[2]   On September 27, 2001, following Miller’s conviction for murder, the trial court

      sentenced him to sixty-five years of incarceration in the DOC. In 2002, we

      affirmed Miller’s conviction and sentence on direct appeal. See Miller v. State,

      No. 20A03-0111-CR-362 (August 16, 2002). In 2009, we affirmed the post-

      conviction court’s denial of post-conviction relief. See Miller v. State, No.

      20A03-0901-PC-20, slip op. at *6 (September 3, 2016), trans. denied. On

      December 7, 2018, Miller filed a petition styled as one for consideration of

      alternative placement in which he asked the trial court to modify his sentence

      from a DOC commitment to community corrections. On December 11, 2018,

      the trial court issued a notice declining to take action on Miller’s petition, which

      it had treated as one for sentence modification. The trial court noted that Miller


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3138 | June 27, 2019   Page 2 of 5
      is a violent criminal according to Indiana law, and that, in the absence of

      consent by the prosecuting attorney, the trial court was unable to consider his

      motion for sentence modification.


                                 Discussion and Decision
                     I. Denial of Petition to Modify Sentence
[3]   Miller contends that the trial court erred in refusing to act on his petition to

      modify his sentence. As an initial matter, Miller contends that his petition

      should have been treated as a request for alternative placement in community

      corrections pursuant to Indiana Code section 35-38-2.6-3. Section 35-38-2.6-3,

      however, only applies to requests made “at the time of sentencing” and so has

      no applicability here. It is well-settled that “[i]f after sentencing, a defendant

      requests to modify his placement and be allowed to serve his sentence in a

      community corrections program, this is a request for a modification of sentence

      under Ind. Code § 35-38-1-17.” Keys v. State, 746 N.E.2d 405, 407 (Ind. Ct.

      App. 2001).

[4]   Having established that Indiana Code section 35-38-1-17 controls, we note first

      that Miller qualifies as a “violent criminal” by virtue of his murder conviction.

      Ind. Code § 35-38-1-17(d)(1). That said, subsection (k) provides, in part, as

      follows:

              A convicted person who is a violent criminal may, not later than
              three hundred sixty-five (365) days from the date of sentencing, file
              one (1) petition for sentence modification under this section
              without the consent of the prosecuting attorney. After the elapse
              of the three hundred sixty-five (365) day period, a violent criminal

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3138 | June 27, 2019   Page 3 of 5
              may not file a petition for sentence modification without the
              consent of the prosecuting attorney.
[5]   Miller’s petition was filed many years beyond the point after which he was

      required to obtain consent from the prosecutor, consent that was not obtained.

      Consequently, the trial court lacked the authority to even file Miller’s petition,

      much less rule on it. See, e.g., Hawkins v. State, 951 N.E.2d 597, 599 (Ind. Ct.

      App. 2011) (holding that if request is made outside the 365-day period and

      prosecutor opposes the modification, trial court lacks authority to modify the

      sentence), trans. denied; Manley v. State, 868 N.E.2d 1175, 1179 (Ind. Ct. App.

      2007) (concluding that trial court lacked authority to grant defendant’s request

      to modify his placement where request was made more than 365 days after he

      was sentenced and without prosecutor’s consent), trans. denied.

[6]   Moreover, Miller’s suggestion that he was entitled to have a hearing on his

      petition is without merit. As mentioned, Miller’s petition cannot even be filed,

      much less considered. Under the circumstances, a hearing would be

      superfluous. Finally, to the extent that Miller argues that the operation of

      Indiana Code subsection 35-38-1-17(k) amounts to vindictive justice, this

      argument is without merit as well. It is true that Article 1, section 18 of the

      Indiana Constitution provides that “[t]he penal code shall be founded on the

      principles of reformation, and not vindictive justice.” However, “there is no

      recognized liberty interest in a modification of [a] sentence under Indiana law”

      and “refusing to reduce the length of a sentence is not the equivalent of denying

      the right to rehabilitate, much less the equivalent of vindictive justice.” Manley,

      868 N.E.2d at 1178 (citation and quotation marks omitted).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3138 | June 27, 2019   Page 4 of 5
                                           II. Official Bias
[7]   Miller seems to suggest that he has been the victim of bias and prejudice on the

      part the trial court clerk. Miller seems to allege that he was “shortstopped” due

      to his pro se status and points to the fact that the trial court’s ruling was entered

      four days after he submitted his petition for sentence modification. Miller also

      seems to suggest that the trial court clerk never even allowed his petition to get

      to the trial court and, instead, entered a ruling purporting to be from the trial

      court which was not. While there is a “‘fundamental constitutional right of

      access to the courts[,]’” Maggert v. Call, 817 N.E.2d 649, 650 (Ind. Ct. App.

      2004) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)), suffice it to say that

      Miller points to no actual evidence that any denial of access occurred in this

      case. Miller’s allegations are nothing more than innuendo, and our own review

      of the record reveals no hint of bias, prejudice, or denial of access to the court.

      Miller has failed to establish that he was denied access to the court.

[8]   The judgment of the trial court is affirmed.

      Crone, J., and Tavitas, J., concur.




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