MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 17 2016, 9:08 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
John R. Northern Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John R. Northern, May 17, 2016
Appellant-Defendant, Court of Appeals Case No.
56A03-1510-CR-1614
v. Appeal from the Newton Superior
Court
State of Indiana, The Honorable Daniel J. Molter,
Appellee-Plaintiff. Judge
Trial Court Cause No.
56D01-1104-FA-2
May, Judge.
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[1] John R. Northern, pro se, appeals the denial of his motion to modify his
sentence. The State agrees the trial court erred by denying his motion without
considering its merits. We reverse and remand.
Facts and Procedural History
[2] On April 13, 2011, the State charged Northern with two counts of Class A
felony dealing in methamphetamine 1 and one count of Class C felony
possession of chemical reagents or precursors with intent to manufacture
methamphetamine. 2 On December 14, 2011, a jury found Northern guilty of all
three crimes. Prior to sentencing, the State moved to vacate the possession of
reagents conviction, and the trial court granted that motion. In January 2012,
the court imposed a thirty-year sentence, with ten years suspended to probation.
Northern appealed his conviction and sentence, and we affirmed in an
memorandum decision. Northern v. State, 979 N.E.2d 190 (Ind. Ct. App. 2012),
trans. denied.
[3] On July 6, 2015, Northern filed a pro se motion for modification of his sentence.
The State objected. The court held a hearing and then denied the motion after
finding it had “no authority to act on the Defendant’s Motion without the
consent of the State of Indiana and therefore denies the Defendant’s Motion for
1
Ind. Code § 35-48-4-1.1(a)(1) (2006).
2
Ind. Code § 35-48-4-14.5(c) (2006).
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Modification of Sentence or Alternative Sentence.” (App. at 18.) Northern
filed a motion to reconsider, which the trial court also denied.
Discussion and Decision
[4] Northern argues, and the State agrees, that the trial court erred when it
determined it needed the prosecutor’s consent to consider the merits of
Northern’s motion to modify his sentence. In light of statutory amendments
that became effective just before Northern filed his petition, we agree the trial
court erred.
[5] Generally we review denial of a motion to modify a sentence for an abuse of
discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). However, we
“review matters of statutory interpretation de novo because they present pure
questions of law.” State v. Brunner, 947 N.E.2d 411, 416 (Ind. 2011), reh’g
denied.
[6] At issue in this case is Indiana Code § 35-38-1-17, which defines when a trial
court has authority to modify a sentence. In 2013, the statute provided a
defendant who had served more than 365 days of his sentence could move to
have his sentence modified by the trial court, “subject to the approval of the
prosecuting attorney.” Ind. Code § 35-38-1-17(b) (2013) (emphasis added). Thus,
if the prosecutor did not approve, the trial court had no authority to modify a
sentence.
[7] Effective July 1, 2014, our legislature eliminated the need for the prosecuting
attorney’s approval. See Ind. Code § 35-38-1-17(c) (2014) (providing, after
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defendant has served 365 days, court has authority to reduce or suspend
sentence to a sentence available at the time of sentencing and “court must
incorporate its reasons in the record”). However, another statute that also took
effect in 2014 made the new version of Indiana Code § 35-38-1-17 inapplicable
to “(1) penalties incurred; (2) crimes committed; or (3) proceedings begun;
before [July 1, 2014]. Those penalties, crimes, and proceedings continue and
shall be imposed and enforced under prior law as if [the new sentencing laws]
had not been enacted.” Ind. Code § 1-1-5.5-21(a) (2014). Accordingly, if
Northern, who was sentenced in 2012, had petitioned for sentence modification
in 2014, the court could not have modified his sentence without the
prosecutor’s approval. See, e.g., Swallows v. State, 31 N.E.3d 544, 547 (Ind. Ct.
App. 2015) (holding defendant sentenced in 1989 had no right to sentence
modification without prosecutor’s approval under 2014 version of Ind. Code §
35-38-1-17), trans. denied, superseded by statutory amendment.
[8] Then, however, the legislature passed Public Law 164-2015, which took effect
May 5, 2015. That law amended Indiana Code § 35-38-1-17 to explicitly
provide the sentencing relief available therein applied retroactively to “a person
who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.” Ind.
Code § 35-38-1-17(a) (2015); see also Vazquez v. State, 37 N.E.3d 962, 964 (Ind.
Ct. App. 2015) (discussing statutory change). As such, Northern, who was
sentenced in 2012, became eligible to petition the trial court for reduction or
suspension of his sentence without the approval of the prosecuting attorney. See
Ind. Code § 35-38-1-17 (2015). Therefore, as Northern argues, and the State
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concedes, the trial court erred when it denied Northern’s motion based solely
on the lack of prosecutorial approval.
Conclusion
[9] We reverse the denial of Northern’s motion for modification of his sentence,
and we remand for the trial court to consider the merits of Northern’s petition.
[10] Reversed and remanded.
Baker, J., and Brown, J., concur.
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John R. Northern v. State of Indiana (mem. dec.)
Combined Opinion