APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Ivan Vazquez Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General Jun 23 2015, 1:13 pm
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ivan Vazquez, June 23, 2015
Appellant-Defendant, Court of Appeals Case No.
79A02-1501-CR-47
v. Appeal from the Tippecanoe Superior
Court
State of Indiana, The Honorable Thomas A. Busch,
Judge
Appellee-Plaintiff.
Case No. 79D02-0308-FA-24
Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015 Page 1 of 6
Case Summary
[1] Ivan Vazquez began serving a forty-five-year sentence for felony drug
convictions in 2005. Between 2010 and 2014, Vazquez filed three sentence-
modification petitions as well as a motion to correct errors, all of which the trial
court denied. Vazquez, proceeding pro se, now appeals. One of Vazquez’s
claims is that the recently amended sentence-modification statute—Indiana
Code section 35-38-1-17—applies to him. Although this Court previously held
that Section 35-38-1-17 had no retroactive application, the legislature recently
amended the statute to expressly provide for retroactivity; thus, the amended
statute does apply to Vazquez. This fact aside, the amended statute does not
entitle Vazquez to any relief. We find no error, and we therefore affirm.
Facts and Procedural History
[2] In 2004 Vazquez pled guilty to Class A felony dealing in cocaine and Class A
felony conspiracy to commit dealing in cocaine. The trial court sentenced
Vazquez to fifty years in the Indiana Department of Correction, with five years
suspended to probation. We affirmed Vazquez’s sentence on appeal. Vazquez v.
State, 839 N.E.2d 1229 (Ind. Ct. App. 2005), trans. denied. Vazquez later sought
post-conviction relief, which the post-conviction court denied, and we affirmed.
Vazquez v. State, No. 79A02-1207-PC-545 (Ind. Ct. App. Sept. 19, 2013), trans.
denied.
Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015 Page 2 of 6
[3] Vazquez filed his first sentence-modification petition in the trial court in
November 2010. Appellant’s App. p. 4 (CCS). The trial court denied
Vazquez’s petition. Id. Approximately four years later, in July 2014, Vazquez
filed his second sentence-modification petition, which was also denied. Id. at 3.
Just three months later, in October 2014, Vazquez filed a third petition to
modify his sentence. Id. The trial court dismissed this petition as untimely,
noting that Vazquez could refile on or after July 11, 2015. Id. at 18. Finally,
Vazquez filed a motion to correct errors in November 2014, which the trial
court denied. Id. at 2.
[4] Vazquez, proceeding pro se, now appeals.
Discussion and Decision
[5] Vazquez makes a number of arguments on appeal, which we restate as: 1) the
trial court was biased against him; 2) the trial court lacked jurisdiction to rule
on his sentence-modification petitions and motion to correct errors; and 3) the
recently amended sentencing-modification statute should apply to him.
[6] Vazquez’s arguments, which amount to a single paragraph of his Appellant’s
Brief, are difficult to follow and largely unsupported by authority. See
Appellant’s Br. p. 5. When Vazquez cites authority, he does so without
explaining how it applies to his case, and he fails to cite any portion of the
record that might be relevant to his claims. See Ind. Appellate Rule 46(A)(8)(a)
(the argument section of an appellant’s brief “must contain the contentions of
Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015 Page 3 of 6
the appellant on the issues presented, supported by cogent reasoning. Each
contention must be supported by citations to the authorities, statutes, and the
Appendix or parts of the Record on Appeal relied on . . . .”). However, because
we prefer to decide cases on the merits whenever possible, we will nonetheless
address Vazquez’s claims.
[7] Vazquez first asserts that the trial court—which heard his sentence-modification
petitions and motion to correct errors—was biased against him. A trial before
an impartial judge is an essential element of due process. Stellwag v. State, 854
N.E.2d 64, 65 (Ind. Ct. App. 2006). The law presumes that a judge is unbiased
and unprejudiced. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002). However,
this presumption may be rebutted if the defendant can establish from the judge’s
conduct an actual bias or prejudice that places the defendant in jeopardy. Id.
Vazquez falls far short of rebutting this presumption; in fact, he provides
absolutely no evidence to support his bias claim. As for his suggestion that the
court was without jurisdiction to rule on his sentence-modification petitions and
motion to correct errors, he appears to base this claim on the fact that there had
previously been “a change of venue from [the] biased and believed-to-be-unfair
judge . . . .” Appellant’s Br. p. 5. Yet the record reflects no change of venue,
nor any other procedural mechanism that would deprive the trial court of
jurisdiction as Vazquez claims.
Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015 Page 4 of 6
[8] Finally, Vazquez suggests that the recently amended sentencing-modification
statute applies to him. 1 Vazquez invokes Indiana Code section 35-38-1-17,
which was amended in July 2014 and May 2015. This Court previously held
that the amended statute had no retroactive application. See Swallows v. State, ---
N.E.3d --- (Ind. Ct. App. 2015); Hobbs v. State, 26 N.E.3d 983 (Ind. Ct. App.
2015). But the legislature has since amended the statute to expressly provide for
retroactivity. Effective May 5, 2015, the amended statute now “applies to a
person who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.”
See Ind. Code § 35-38-1-17(a); P.L.164 – 2015.
[9] In light of the legislature’s clear intent that the statute be applied retroactively,
we agree with the State that the amended statute applies to Vazquez, whose
appeal was pending when the retroactivity amendment went into effect. See
Appellee’s Br. p. 7-8. But the amended statute does not entitle Vazquez to any
relief. The trial court denied Vazquez’s sentence-modification petition because
it was untimely—it was filed just three months after his last petition; as a result,
the trial court dismissed it and noted that Vazquez could refile on or after July
11, 2015. The amended statute mandates this result. See Ind. Code § 35-38-1-
17(j)(1) (“A convicted person who is not a violent criminal may file a petition
for sentence modification under this section . . . not more than one (1) time in
any three hundred sixty-five (365) day period . . . .”). Moreover, under the
1
Specifically, Vazquez discusses the portion of the amended statute that eliminates the prosecutor’s ability to
veto sentence-modification petitions. But as explained below, the amended statute offers Vazquez no relief.
Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015 Page 5 of 6
amended statute, Vazquez was entitled to file a modification petition “a
maximum of two (2) times during any consecutive period of incarceration . . .
.” I.C. § 35-38-1-17(j)(2). Because Vazquez’s petition was untimely and
exceeded the authorized number of filings, the trial court properly dismissed it.
[10] Affirmed.
Kirsch, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 79A02-1501-CR-47 | June 23, 2015 Page 6 of 6