Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 11 2014, 10:37 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK LEEMAN GREGORY F. ZOELLER
Logansport, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT D. BOWEN, )
)
Appellant-Defendant, )
)
vs. ) No. 08A02-1312-CR-1078
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CARROLL CIRCUIT COURT
The Honorable Benjamin Diener, Judge
Cause No. 08C01-1007-FB-8
August 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Robert Bowen (“Bowen”) appeals the trial court’s order, on remand from the
Indiana Supreme Court, resentencing him without a hearing. After this Court upheld his
convictions and sentences, the Supreme Court granted transfer and remanded to the trial
court with instructions to enter a new sentencing order stating the reason for Bowen’s
consecutive sentences. On Bowen’s request for rehearing, the Supreme Court expanded
its order, again giving the trial court the discretion to correct the sentencing order with or
without a hearing. On appeal, Bowen argues that the trial court abused its discretion by
choosing to resentence him without a hearing. Finding that the trial court complied with
the Supreme Court’s order on remand, we conclude that the trial court did not abuse its
discretion in resentencing Bowen without a hearing.
We affirm.
ISSUE
Whether the trial court abused its discretion in resentencing Bowen without
a hearing.
FACTS
A portion of the relevant procedural facts are stated in our Indiana Supreme
Court’s per curiam opinion in Bowen v. State, 988 N.E.2d 1134 (Ind. 2013):
After a jury trial, Robert Bowen was convicted of several offenses (and
sentenced to advisory terms) as follows: unlawful possession of a firearm
by a serious violent felon (10 years), dealing in a controlled substance (4
years), possession of a controlled substance (1.5 years)[,] and possession of
marijuana (1 year). The trial court ordered the sentences to be served
concurrently, except the 4-year sentence was ordered to be served
consecutively, for a total executed term of 14 years.
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The trial court did not state its reasons for imposing this sentence, either in
writing or from the bench, and did not identify any reason for consecutive
sentences. Noting that the presentence investigation report disclosed an
extensive criminal history and that the trial court had considered the report,
the Court of Appeals inferred that Bowen’s criminal history was the reason
the trial court imposed consecutive sentences.
The Supreme Court remanded the case to the trial court with instructions to amend
Bowen’s sentencing order by stating its reasons for consecutive sentences and to do so
without a hearing. The Supreme Court affirmed Bowen’s convictions and sentences in
all other respects.
Bowen petitioned the Supreme Court for rehearing, arguing that the judge who
originally sentenced him was no longer on the bench, and the current judge could not
clarify the original sentencing order. The Supreme Court granted rehearing for the
limited purpose of expanding its instructions on remand. Relying on Taylor v. State, 840
N.E.2d 324, 342 (Ind. 2006), the Supreme Court amended its remand order as follows:
On remand for a new sentencing order that responds to concerns raised by
the Supreme Court, the trial court may discharge this responsibility by (1)
issuing a new sentencing order without taking any further action, (2)
ordering additional briefing on the sentencing issue and then issuing a new
order without holding a new sentencing hearing, or (3) ordering a new
sentencing hearing at which additional factual submissions are either
allowed or disallowed and then issuing a new order based on the
presentation.
Bowen v. State, 1 N.E.3d 131 (Ind. 2013).
On November 25, 2013, Bowen filed a motion with the trial court requesting a
modification of his sentence. In his motion, Bowen stated that of the three options listed
in the Supreme Court’s remand order, holding a hearing and allowing additional factual
submissions was the most appropriate choice. On December 2, 2013, the trial court,
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without a hearing, entered an order stating that consecutive sentences on Bowen’s firearm
and drug convictions were appropriate because of his criminal history and his recent
violation of probation, parole, community corrections placement, or pretrial release.
Bowen now appeals.
DECISION
Bowen argues that the trial court abused its discretion by not explaining its reason
for resentencing without a hearing. Further, Bowen argues that the trial court erroneously
failed to make a finding on the record that the judge who entered the original sentence
was unavailable.
Absent a grant of authority by statute or rule, a trial court has no jurisdiction to
change a sentence once it has been imposed. Lane v. State, 727 N.E.2d 454, 456 (Ind. Ct.
App. 2000). When an appellate court has remanded a case to the trial court concerning a
defendant’s sentence, it is compelled to follow the remand order. Id. As a result, the
only issue before us is whether the trial court complied with our Supreme Court’s remand
order.
Here, the Supreme Court ordered the trial court to amend the sentencing order and
state its reasons for imposing consecutive sentences. It did so and was not required to
select the method Bowen thought was best. Because the trial court complied with the
Supreme Court’s order on remand, we find no abuse of discretion.
Affirmed.
FRIEDLANDER, J., and MATHIAS, J., concur.
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Robert D. Bowen v. State of Indiana
Combined Opinion