MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jan 29 2015, 9:40 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Samuel L. Hobbs, Jr. Gregory F. Zoeller
New Castle, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samuel L. Hobbs, Jr., January 29, 2015
Appellant-Defendant, Court of Appeals Cause No.
18A05-1408-CR-394
v. Appeal from the Delaware Circuit
Court, The Honorable Marianne L.
Vorhees, Judge
State of Indiana, Cause No. 18C01-1007-FA-6
Appellee-Plaintiff
Najam, Judge.
Statement of the Case
[1] Samuel L. Hobbs, Jr. appeals the trial court’s denial of his petition to modify
sentence. Hobbs raises two issues for our review, which we consolidate and
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restate as whether the trial court abused its discretion when it denied his
petition. We affirm.
Facts and Procedural History
[2] The facts underlying Hobbs’ convictions were stated by this court in his direct
appeal:
In the fall of 2003, Hobbs met L.M. at work. Early in 2004, they
became romantically involved. Throughout their relationship Hobbs
lived in various locations and, while he never lived with L.M., he
occasionally spent the night with her. In the fall of 2004, as their
relationship began to subside, Hobbs insisted he needed L.M.’s help in
overcoming his drug addiction. Hobbs did not see L.M. between
February of 2005 and June 19, 2005, although they wrote each other
and spoke on the phone.
On June 19, 2005, Hobbs was released from prison. Hobbs and L.M.
met at St. Francis church for the 9:00 a.m. service, after which L.M.
drove Hobbs to cash a money order, then dropped him off at a
Wendy’s restaurant. From there, L.M. went to visit her parents. She
did not see or speak with Hobbs the rest of the day. Upon returning
home, L.M. had several messages from Hobbs on her answering
machine that “started out nice and seemed to end up very violent,
hateful.” At 11:18 p.m., L.M. was awakened when she felt Hobbs
crawling into bed with her. She told him to leave, but he refused and
became physical, throwing her on her back, and eventually removing
her pants and underwear, as well as his own clothing. Hobbs
proceeded to put his finger in her vagina, followed by his penis. He
later performed oral sex on her and penetrated her anally. L.M. fought
Hobbs screaming and yelling for her neighbor, Lori Ford (Ford), all
the while telling Hobbs to “stop, get off, leave me alone,” and that it
“hurt.” Hobbs responded by telling her to shut up and covering her
mouth with his hands. L.M. attempted to call 911, but Hobbs took the
telephone from her and threw it. L.M. found the telephone under her
bed the next day.
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While L.M.’s encounter with Hobbs was happening, Ford was
walking her dog underneath L.M.’s open bedroom window. Ford
heard loud, piercing screams coming from the window. Ford called
911 to report that her neighbor was being attacked, and stayed on the
line with the 911 operator until the police arrived.
Officers Doug Narramore and Michael Shaffer (the Officers)
responded to Ford’s 911 call. The Officers heard cries for help coming
from L.M.’s window. The Officers also saw a man later identified as
Hobbs in the window and heard him advise L.M. to tell them to leave.
L.M. refused and proceeded outside as instructed by the Officers. The
Officers entered L.M.’s home, located Hobbs, handcuffed him, and
removed him from the home. Officer Rodney Frasier photographed
the scene and obtained hair and blood samples from Hobbs. L.M. was
taken to Ball Memorial Hospital where she underwent a physical
examination, including whether there was evidence of a sexual
trauma.
That same evening between 11:00 and 11:30 p.m., Clark Tudor (Clark)
was at home watching a basketball game when one of the two phone
lines in his house rang; his wife Faye was asleep. He said hello, twice,
but there was no response, so he just listened. He heard an unfamiliar
female voice crying, “You’re hurting me,” and an equally ‘unfamiliar
male voice saying, “Shut up. Shut up. Be quiet.” Then, he heard the
woman scream, “unlike any other scream [he]’d ever heard in [his]
life. It was a blood curdling scream.”
Clark awoke his wife. He put the call on speakerphone in the kitchen
where they both listened in on the call. Faye heard someone calling
for Rory, or Lori as well as multiple screams, after which she went into
the bedroom and called 911 on their other telephone line. She
believed someone was “getting raped because it was really screaming.”
The phone call was traced by the 911 supervisor to L.M.’s house.
On June 22, 2005, the State filed an Information charging Hobbs with
Count I, burglary resulting in bodily injury, a Class A felony, Count II,
rape, a Class B felony, and Count III, criminal deviate conduct, a
Class B felony. On January 10 through 12, 2006, a jury trial was held
resulting in the following convictions: Count I, residential entry, a
Class D felony; Count II, battery with bodily injury, a Class A
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misdemeanor; and Count III, criminal deviate conduct, a Class B
felony. On February 7, 2006, Hobbs was sentenced to three years on
Count I, residential entry, one year on Count II, battery with bodily
injury, and twenty years on Count III, criminal deviate conduct, with
Count I to run consecutive to Count III and Count II to run
concurrent to Count III for an aggregate sentence of 23 years.
Hobbs v. State, No. 18A04-0602-CR-95, 2007 WL 166209 at *1-*2 (Ind. Ct. App.
Jan. 24, 2007) (citations omitted). Hobbs’ trial counsel argued that L.M. had
consented to the sexual activity. Accordingly, he sought and received an
instruction for battery, as a Class A misdemeanor, as a lesser included offense
of rape, as a Class B felony. The jury found Hobbs guilty of the battery and
acquitted him of rape.
[3] In his direct appeal, among other things Hobbs challenged the appropriateness
of his sentence under Indiana Appellate Rule 7(B). We affirmed the trial
court’s judgment on this and all other issues. On July 19, 2007, Hobbs filed his
petition for post-conviction relief, which he later amended in July of 2010. The
post-conviction court denied his petition on December 28, 2010. We affirmed
the post-conviction court’s judgment on appeal.
[4] On July 23, 2014, Hobbs filed his petition for modification of sentence pursuant
to Indiana Code Section 35-38-1-17(c) (2014). The State objected, and the trial
court denied Hobbs’ petition on August 11. This appeal ensued.
Discussion and Decision
[5] Hobbs appeals the trial court’s denial of his petition to modify his sentence
pursuant to Indiana Code Section 35-38-1-17(c) (2014). We review a trial
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court’s decision to modify a sentence only for abuse of discretion. Gardiner v.
State, 928 N.E.2d 194, 196 (Ind. 2010). An abuse of discretion occurs if the
court’s decision is clearly against the logic and effect of the facts and
circumstances before the court. Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct.
App. 1999).
[6] According to the provision of the Indiana Code relied on by Hobbs:
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.
Ind. Code § 35-38-1-17(c) (2014). But this provision became effective on July 1,
2014, as part of our 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.”).
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[7] Despite Hobbs’ 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’ arguments to the contrary
are without merit.1
[8] Elsewhere in his appellate brief, Hobbs asserts that his convictions violate
Indiana’s prohibitions against double jeopardy because they “stemmed from the
same incident and were based upon the same facts.” Appellant’s Br. at 11.
Hobbs also argues that his sentence violates the Proportionality Clause of
Indiana’s Constitution, Ind. Const. art. 1 § 16, and is inappropriate under
Indiana Appellate Rule 7(B). But these issues are not available to Hobbs in a
motion for sentence modification and either have been or should have been
raised on direct appeal. In particular, Hobbs’ Appellate Rule 7(B) claim was
raised on direct appeal and rejected. “If an issue was known and available, but
not raised[,] on direct appeal, it is waived. If it was raised on appeal[] but
decided adversely, it is res judicata.” Timberlake v. State, 753 N.E.2d 591, 597
1 Hobbs suggests that Indiana Code Section 1-1-5.5-21 is unconstitutional because it is either overbroad or
vague. These suggestions are not supported by cogent reasoning, and we do not consider them. Ind.
Appellate Rule 46(A)(8)(a).
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(Ind. 2001). Thus, we affirm the trial court’s denial of Hobbs’ petition for
modification of sentence.
[9] Affirmed.
Mathias, J., and Bradford, J., concur.
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Samuel L. Hobbs, Jr. v. State of Indiana (mem. dec.)
Combined Opinion