MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jun 26 2015, 8:11 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
David Drummond Gregory F. Zoeller
Bunker Hill, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Drummond, June 26, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A02-1408-CR-577
v.
Appeal from the Marion Superior
State of Indiana, Court
The Honorable Stanley Kroh,
Appellee-Plaintiff, Magistrate
Cause No. 49G03-0108-CF-161376
Robb, Judge.
Case Summary and Issues
[1] David Drummond, pro se, appeals the trial court’s denial of his motion for
modification of sentence. He raises several issues for our review, which we
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restate and consolidate into two: (1) whether the trial court erred by denying
Drummond’s motion for evaluation, and (2) whether the trial court erred by
denying his motion for modification of sentence. Concluding the trial court did
not err in either respect, we affirm.
Facts and Procedural History
[2] Drummond was convicted of child molesting, a Class A felony, and sentenced
to fifty years imprisonment on April 24, 2002.
[3] On July 17, 2014, Drummond filed a Motion for Order for Evaluation and a
Motion for Modification of Sentence. On July 23, 2014, the trial court denied
both motions without a hearing. This appeal followed.
Discussion and Decision
I. Standard of Review
[4] The decision to deny a defendant’s motion for modification of sentence is
committed to the discretion of the trial court. Hawkins v. State, 951 N.E.2d 597,
599 (Ind. Ct. App. 2011), trans. denied.
[5] There is some dispute between Drummond and the State as to which version of
the sentence modification statute controls. Generally, a defendant is governed
by the sentencing statutes in effect at the time he committed his crime. See
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Gutermuth v. State, 868 N.E.2d 427, 431 n.4 (Ind. 2007). We believe the statutes
in effect at the time of Drummond’s crime and sentence are controlling. 1
II. Motion for Evaluation
[6] Drummond claims that the trial court erred by denying his motion to order the
Miami Correctional Facility to prepare an evaluation of Drummond. He cites
Indiana Code section 35-38-1-17(a)(3) (2014), claiming that the trial court has
no discretion to deny his motion for a report from the correctional facility. We
note that the statute in effect at the time of Drummond’s crime and sentence
references a report only where a sentence modification occurs within 365 days
after the defendant begins serving his sentence. See Ind. Code § 35-38-1-17(a)(3)
(2002). Regardless, this court has previously held that the trial court may deny
a defendant’s motion for modification of sentence without first reviewing or
obtaining a report from the Department of Correction. See Banks v. State, 847
N.E.2d 1050, 1053 (Ind. Ct. App. 2006), trans. denied. Drummond’s argument
to the contrary is without merit.
III. Sentence Modification
[7] Next, Drummond challenges the trial court’s denial of his motion for
modification of sentence and the court’s failure to hold a hearing on that
motion. As to Drummond’s entitlement to a hearing, it is well-established that
1
Even if Drummond were correct that the 2014 sentence modification statute applied, his claims would still
fail under that version of the statute.
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Indiana Code section 35-38-1-17’s requirement for a hearing is triggered only
after the trial court has made a preliminary determination to suspend or reduce
a defendant’s sentence. See Robinett v. State, 798 N.E.2d 537, 539 (Ind. Ct. App.
2003) (citing Reichard v. State, 510 N.E.2d 163, 167 (Ind. 1987)), trans. denied.
Because the trial court made a preliminary decision to deny Drummond’s
motion, a hearing was not required. See id.2
[8] Drummond also contends that the circumstances favor a modification of his
sentence, claiming that he has demonstrated his rehabilitation since the time of
his imprisonment. “[T]he mere fact that the process of rehabilitation, the
purpose of incarceration, may have started, does not compel a reduction or
other modification in [a defendant’s] sentence.” Marshall v. State, 563 N.E.2d
1341, 1343-44 (Ind. Ct. App. 1990), trans. denied; accord Catt v. State, 749 N.E.2d
633, 643-44 (Ind. Ct. App. 2001), trans. denied. Drummond’s appealed order
indicates that the trial court reviewed the record and his motion before denying
the request for a sentence modification. The trial court has discretion to do so,
and we are not in a position to disregard it.
2
Drummond claims that he is entitled to a hearing under our supreme court’s decision in Pannarale v. State,
638 N.E.2d 1247 (Ind. 1994). That decision does not even contain the word “hearing,” let alone hold that
one is necessary before denying a motion for sentence modification.
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Conclusion
[9] Concluding the trial court did not abuse its discretion by denying Drummond’s
motion for evaluation or his motion for sentence modification, we affirm.
[10] Affirmed.
May, J., and Mathias, J., concur.
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