MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Feb 16 2016, 6:51 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Cook Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher J. West, February 16, 2016
Appellant-Defendant, Court of Appeals Case No.
21A01-1510-CR-1673
v. Appeal from the Fayette Circuit
Court
State of Indiana, The Honorable Beth Butsch, Judge
Appellee-Plaintiff. Trial Court Cause No.
21C01-0904-FA-45
Altice, Judge.
Case Summary
[1] Christopher J. West appeals from the trial court’s denial of his motion to
modify sentence.
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[2] We affirm.
Facts & Procedural History
[3] Following a jury trial, on February 18, 2010, West was convicted of two counts
of Class B felony dealing in a narcotic drug and one count of Class D felony
possession of cocaine. The trial court sentenced him to an aggregate executed
term of thirty-three years in prison. On direct appeal, this court revised West’s
sentence to an aggregate executed term of eighteen years in prison. West v.
State, No. 21A04-1004-CR-303 (Ind. Ct. App. Jan. 26, 2011).
[4] Thereafter, West filed unsuccessful motions to modify in 2012, 2013, and 2014.
On March 27, 2015, he filed a motion for progress report, which was granted by
the trial court. The Department of Correction provided the report to the trial
court and the parties in May 2015. At that time, West’s anticipated date of
release was April 1, 2018. West filed the instant motion to modify his sentence
on June 19, 2015, which the trial court summarily denied without a hearing on
September 22, 2015.
Discussion & Decision
[5] West argues that the trial court abused its discretion by “refusing to further
consider [his] sentence when his [DOC] Progress Report demonstrates
overwhelming, objective evidence of reformation, and his remaining prison
sentence is nearing completion.” Appellant’s Brief at 1. Additionally, West
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asserts that the trial court “arguably acted without authority” in denying his
motion more than ninety days after it was filed. Id. at 5.
[6] We begin by addressing West’s belated challenge to the trial court’s authority to
rule on the motion. Citing Ind. Trial Rules 53.1 and 53.2, West argues that the
trial court lost jurisdiction to rule on the motion ninety days after it was filed
and that we should remand with instructions for further consideration by a
special judge.
[7] These rules are “intended to expedite proceedings by withdrawing cases from
trial judges who have delayed their ruling beyond the specified period of time.”
Williams v. State, 716 N.E.2d 987, 900 (Ind. 1999). If a party chooses not to file
a lazy judge motion and, if denied, seek a writ of mandate from our Supreme
Court to compel disqualification of the judge, the party is estopped from
complaining on appeal that the original trial judge maintained jurisdiction over
the case. Id. Because West did not follow the procedural mandates and waited
until an unfavorable judgment was entered against him, he may not now be
heard to complain. See id.
[8] With respect to petitions for sentence modification, Ind. Code § 35-38-1-17
provides explicit limitations. For a convicted person who, like West, is not a
violent criminal, I.C. § 35-38-1-17(j) provides that such petitions may be filed
without the consent of the prosecuting attorney:
(1) not more than one (1) time in any three hundred sixty-five
(365) day period; and
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(2) a maximum of two (2) times during any consecutive
period of incarceration.
West acknowledges that this is the fourth time he has sought modification of his
sentence in this case. Further, the record does not indicate that the prosecuting
attorney consented to this recent filing. Under these circumstances, the trial
court did not err in summarily denying West’s motion to modify sentence. See
I.C. § 35-38-1-17(j)(2).
Judgment affirmed.
Robb, J., and Barnes, J., concur.
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Christopher J. West v. State of Indiana (mem. dec.)
Combined Opinion