MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Oct 29 2015, 8:20 am
this 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
Jeremy Tidmore Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Tidmore, October 29, 2015
Appellant-Petitioner, Court of Appeals Case No.
27A02-1502-CR-77
v. Appeal from the Grant Circuit
Court
State of Indiana, The Honorable Mark E. Spitzer,
Appellee-Respondent Judge
Trial Court Cause No.
27C01-0411-FC-155
Vaidik, Chief Judge.
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Case Summary
[1] Jeremy Tidmore began serving a sixty-year sentence for felony murder and
conspiracy to commit robbery with a deadly weapon causing serious bodily
injury in 1992. In 2014, he filed a sentence-modification petition under an
amendment to Indiana Code section 35-38-1-17 that allowed courts to consider
petitions for sentence modifications without the previous requirement of
prosecutorial approval. The trial court dismissed Tidmore’s petition, relying on
prior decisions from this Court indicating that the 2014 amendment to the
statute did not apply retroactively to crimes occurring before the amendment in
2014. In 2015, while this appeal was pending, the Indiana Legislature again
amended Section 35-38-1-17, making the 2015 amendments retroactive,
allowing non-violent criminals to petition for sentence modification without
prosecutorial approval, but requiring violent criminals to obtain prosecutorial
approval for sentence-modification petitions.
[2] Tidmore argues that the 2014 amendment should apply to him or, in the
alternative, that the 2015 amendments addressing petitions by violent criminals
violate the Equal Protection Clause of the Fourteenth Amendment and the
Equal Privileges and Immunities Clause of the Indiana Constitution because of
its disparate treatment of violent offenders. Finally, Tidmore argues that
inclusion of felony murder on the list of violent crimes in the 2015 amendment
constitutes an ex post facto law. We find no error by the trial court and no
constitutional violations, and we affirm the trial court’s decision.
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Facts and Procedural History
[3] In 1992, Tidmore was convicted of felony murder and Class A felony
conspiracy to commit robbery with a deadly weapon causing serious bodily
injury. The trial court sentenced Tidmore to sixty years in the Indiana
Department of Correction for felony murder, and fifty years for conspiracy,
both sentences to be served concurrently. His conviction and sentence were
affirmed on direct appeal. Tidmore v. State, 637 N.E.2d 1290 (Ind. 1994), reh’g
denied. Tidmore sought post-conviction relief in 2004, and the trial court
granted partial relief by reducing the conspiracy charge to a Class C felony and
revising his sentence from fifty years to eight years. This Court affirmed that
decision. Tidmore v. State, 870 N.E.2d 32 (Ind. Ct. App. 2007), trans. denied.
[4] Tidmore filed a petition to modify his sentence in October 2014. The trial court
denied his petition in December 2014, and denied his motion to correct errors
in January 2015. Tidmore, proceeding pro se, now appeals.
Discussion and Decision
I. Indiana Code Section 35-38-1-17
[5] Tidmore argues first that the trial court erred by denying his petition for
sentence modification. We review a trial court’s decision to modify a sentence
only for abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).
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[6] Tidmore contends that the trial court did have the authority to hear his petition,
without prosecutorial consent, under the 2014 version of Indiana Code section
35-38-1-17(c) that provides:
“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) (West Supp. 2014).
[7] Tidmore correctly notes that the 2014 version of the statute does not require
prosecutorial approval for a sentence modification petition to proceed. This
Court has previously held that the 2014 version of Indiana Code section 35-38-
1-17 does not apply retroactively because of the savings clause, which also
became effective July 1, 2014.1 See, e.g., Carr v. State, 33 N.E.3d 358, 359 (Ind.
Ct. App. 2015), trans. denied; Swallows v. State, 31 N.E.3d 544, 547 (Ind. Ct.
App. 2015), trans. denied; Hobbs v. State, 26 N.E.3d 983, 985-86 (Ind. Ct. App.
1
(a) A SECTION of P.L.158-2013 or P.L.168-2014 does not affect:
(1) penalties incurred;
(2) crimes committed; or
(3) proceedings begun;
before the effective date of that SECTION of P.L.158-2013 or P.L.168-2014. Those penalties, crimes, and
proceedings continue and shall be imposed and enforced under prior law as if that SECTION of P.L.158-
2013 or P.L.168-2014 had not been enacted.
(b) The general assembly does not intend the doctrine of amelioration (see Vicory v. State, 400 N.E.2d 1380
(Ind. 1980)) to apply to any SECTION of P.L.158-2013 or P.L.168-2014.
Ind. Code § 1-1-5.5-21.
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2015). But see Moore v. State, 30 N.E.3d 1241, 1250 (Ind. Ct. App. 2015).2
Tidmore contends that the savings clause does not apply to Section 35-38-1-17
because the amended statute is a procedural remedy, and not a substantive
remedy. We disagree. The 2014 version of Section 35-38-1-17 gave trial courts
the ability to modify a sentence without prosecutorial approval—an authority
the courts did not have prior to the amendment. The grant of new powers to a
court constitutes a substantive change, not a mere procedural change. See
Morris v. State, 936 N.E.2d 354, 357-58 (Ind. Ct. App. 2010), trans. denied.
Therefore, the savings clause did apply to the 2014 amendment to Section 35-
38-1-17.
[8] However, the legislature subsequently amended the statute, while Tidmore’s
appeal was pending, to allow for retroactive application, subject to certain
conditions.3 Vasquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015). But
Tidmore is not entitled to relief under the 2015 amendment either, because,
“except as provided in subsections (k) and (m), this section does not apply to a
violent criminal.” Ind. Code § 35-38-1-17(c). According to Subsection (d) of
the statute, a person convicted of murder, which includes felony murder, is a
2
The Indiana Supreme Court has also granted an oral argument in Johnson v. State, 36 N.E.3d 1130 (Ind. Ct.
App. 2015) (holding that 25-28-1-17 does not apply retroactively).
3
Tidmore argues that we should apply the text of the bill as it passed out of the Senate Committee, rather
than the law as enacted. A bill does not become a law until it is either signed by the Governor, more than
seven days have passed since presentment to the Governor and the Governor has neither signed nor vetoed it,
or the legislature over-rides a veto. Ind. Const. art. 5, § 14. In no case does a bill become a law by passage
from a committee.
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“violent criminal.” Therefore, under the 2015 amendment, which provides for
retroactivity in certain circumstances, Tidmore’s sentence may only be
modified with the consent of the prosecuting attorney. Ind. Code § 35-38-1-
17(k). In this case, the prosecutor filed an objection to Tidmore’s petition for
sentence modification, and the trial court correctly dismissed it.
II. Equal Protection
[9] Next, Tidmore argues that requiring violent criminals to obtain prosecutorial
consent prior to filing a petition for sentence modification, while permitting all
other criminals to proceed without consent, violates the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution, and
the Equal Privileges and Immunities Clause of the Indiana Constitution.
“[T]he analysis under the Equal Privileges Clause in the Indiana Constitution is
independent from the analysis under the Fourteenth Amendment's Equal
Protection Clause in the United States Constitution,” therefore, we will treat
each one separately. Budd v. State, 935 N.E.2d 746, 753 (Ind. Ct. App. 2010).
A. Federal Constitution
[10] The Equal Protection Clause of the United States Constitution provides that no
state shall “deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. Equal protection analysis begins with the
applicable level of scrutiny. Bennett v. State, 801 N.E.2d 170, 175 (Ind. Ct. App.
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2003). Absent a burden upon the exercise of a fundamental right, or the
creation of a suspect class, laws are subject to rational basis review. See id.
[11] Tidmore does not allege creation of a suspect class, and a prisoner has no
constitutional right to sentence modification. Therefore, the rational basis
standard of review applies. See Cottingham v. State, 424 N.E.2d 105 (Ind. 1981).
We “inquire only whether the challenged distinction rationally furthers some
legitimate, articulated state purpose.” McGinnis v. Royster, 410 U.S. 263, 270
(1973). A statute “will not be set aside if any state of facts reasonably may be
conceived to justify it.” McGowan v. State of Md., 366 U.S. 420, 426 (1961).
[12] The burden of proof is on Tidmore to show that no set of facts could justify
distinguishing violent criminals from others for the purposes of sentence
modification. See United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998). He
has made no such showing. Moreover, the State did articulate reasons for not
permitting sentence modification petitions for violent criminals without
prosecutorial approval, including the nature of violent crimes and severity of
harm to the victims. Appellee’s Br. p. 10. Accordingly, Tidmore has not
carried his heavy burden to establish that the statute violates the Equal
Protection Clause.
B. Indiana Constitution
[13] Tidmore also argues that Indiana Code section 35-38-1-17 violates Article 1,
section 23 of the Indiana Constitution which provides that “[t]he General
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Assembly shall not grant to any citizen, or class of citizens, privileges or
immunities, which, upon the same terms, shall not equally belong to all
citizens.” Section 23 imposes two requirements upon statutes that grant
unequal privileges or immunities to differing classes of persons: first, the
disparate treatment accorded by the legislation must be reasonably related to
inherent characteristics which distinguish the unequally treated classes; and
second, the preferential treatment must be uniformly applicable and equally
available to all persons similarly situated. Collins v. Day, 644 N.E.2d 72, 80
(Ind. 1994). “Finally, in determining whether a statute complies with or
violates Section 23, courts must exercise substantial deference to legislative
discretion.” Id.
[14] Beginning with the separate classification of violent criminals, for a legislative
classification to become a judicial question, the lines drawn must “appear
arbitrary or manifestly unreasonable.” Chaffin v. Nicosia, 310 N.E.2d 867, 869
(Ind. 1974). “So long as the classification is based upon substantial distinctions
with reference to the subject matter, we will not substitute our judgment for that
of the legislature; nor will we inquire into the legislative motives prompting
such classification[.]” Id. In this case, the legislature made a distinction
between violent criminals and all other criminals in the context of deciding who
may petition for sentence modification without prosecutorial consent. This
does not “appear arbitrary or manifestly unreasonable.”
[15] Tidmore does not suggest that some violent criminals as defined by the
statute—those similarly situated to him—are treated differently. Therefore, we
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do not need to address the second prong of the analysis. He has failed to
establish a violation of the Equal Privileges and Immunities Clause.
III. Ex Post Facto Law
[16] Finally, in his reply brief, Tidmore argues that classifying felony murder as a
violent crime violates the ex post facto prohibitions of both the Indiana and
federal Constitutions because the list of violent crimes in Indiana Code section
35-38-1-17 did not exist when he was tried and convicted. Moreover, he points
to other sections of the Code which also did not list violent crimes in 1992, and,
consequently, did not list felony murder as a violent crime.
[17] An ex post facto law applies retroactively to disadvantage an offender’s
substantive rights. Weaver v. Graham, 450 U.S. 24, 29 (1981); Collins v. State,
911 N.E.2d 700, 712 (Ind. Ct. App. 2009), trans. denied. To determine whether
a particular statute is an ex post facto law, we examine whether the change
increases the penalty by which a crime is punishable or alters the definition of
criminal conduct. Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3, (1995);
Collins, 911 N.E.2d at 712.
[18] In this case, the effect of the 2015 amendment to section 35-38-1-17 is to leave
Tidmore in the same position he was in when he was sentenced in 1992. The
pertinent portion of the statute in effect at the time of the commission of
Tidmore’s crime read as follows:
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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. . . .
Ind. Code § 35-38-1-17(b) (West Supp. 1992).
[19] The 2015 amendment to Section 35-38-1-17 does not increase the punishment
for, or change the elements of, any crime or deprive anyone of a defense or
lesser punishment. The change in the statute merely permits non-violent
criminals to petition for sentence modification without prosecutorial approval.
As such, we conclude that it does not violate constitutional prohibitions against
ex post facto laws. See Collins v. State, 911 N.E.2d 700, 712 (Ind. Ct. App.
2009).
[20] Finding that the trial court correctly applied Indiana Code section 35-38-1-17,
and that the law does not violate Tidmore’s constitutional rights, we affirm.
[21] Affirmed.
Robb, J., and Pyle, J., concur.
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Jeremy Tidmore v. State of Indiana (mem. dec.)
Combined Opinion