MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 20 2016, 9:59 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
Elijah Roberson Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elijah Roberson, October 20, 2016
Appellant-Defendant, Court of Appeals Case No.
45A03-1602-CR-456
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G04-0912-FA-57
Bradford, Judge.
Case Summary
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[1] On August 31, 2010, Appellant-Defendant Elijah Roberson pled guilty to Class
A felony child molesting. In exchange for Roberson’s plea, Appellee-Plaintiff
the State of Indiana agreed to dismiss additional charges of Class B felony
sexual misconduct with a minor, Class B felony incest, and Class C felony
sexual misconduct with a minor. The trial court accepted Roberson’s guilty
plea and sentenced him to a forty-year term of incarceration. Roberson’s
sentence was affirmed on direct appeal. On February 2, 2016, Roberson filed a
pro se motion seeking a modification of his sentence. The prosecuting attorney
did not consent to Roberson’s motion. The trial court subsequently summarily
denied Roberson’s motion.
[2] On appeal, Roberson contends that the trial court abused its discretion in
summarily denying his motion for a modification of his sentence. We affirm.
Facts and Procedural History
[3] Our memorandum decision in Roberson’s direct appeal, which was handed
down on June 24, 2011, instructs us as to the underlying facts and procedural
history leading to the instant appeal.
The facts supporting Roberson’s guilty plea can be found in the
stipulated factual basis for the guilty plea. Roberson, who was
born in 1962, is the biological uncle and adoptive father of the
victim, S.R., who was born in 1992. Between March 6, 2003 and
June 1, 2003, while Roberson and S.R. were living in East
Chicago, Roberson had vaginal sexual intercourse with S.R. one
or two times per week. Roberson told S.R. not to tell anyone
about the sexual intercourse because Roberson would go to jail.
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The trial court accepted Roberson’s guilty plea and sentenced
him to a term of forty years executed.
Roberson v. State, 45A03-1011-CR-564, *1 (Ind. Ct. App. June 24, 2011). On
appeal, we affirmed Roberson’s sentence. Id. at *2. The Indiana Supreme
Court subsequently denied Roberson’s transfer petition.
[4] On February 2, 2016, Roberson filed a pro se motion seeking a modification of
his sentence. The prosecuting attorney did not consent to Roberson’s motion.
The trial court summarily denied Roberson’s petition on February 5, 2016.
This appeal follows.
Discussion and Decision
[5] Roberson contends that the trial court erred in summarily denying his motion
for a sentence modification. “We review a trial court’s decision as to a motion
to modify only for an abuse of discretion.” Carr v. State, 33 N.E.3d 358, 358
(Ind. Ct. App. 2015), trans. denied. “An abuse of discretion has occurred when
the court’s decision was clearly against the logic and effect of the facts and
circumstances before the court.” Id. at 359 (internal quotation omitted).
[6] Roberson qualifies as a violent criminal. See Ind. Code § 35-38-1-17(d)(10).
Indiana Code section 35-38-1-17(k) provides the following with respect to an
individual who is classified as a violent criminal and who committed their
offense or was sentenced prior to July 1, 2014:
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This subsection applies to a convicted person who is a violent
criminal. A convicted person who is a violent criminal may, not
later than three hundred sixty-five (365) days from the date of
sentencing, file one (1) petition for sentence modification under
this section without the consent of the prosecuting attorney.
After the elapse of the three hundred sixty-five (365) day period,
a violent criminal may not file a petition for sentence modification
without the consent of the prosecuting attorney.
(Emphasis added).
[7] The record reveals that Roberson was sentenced on October 5, 2010. He did
not file his motion for a sentence modification until February 2, 2016, far more
than 365 days after he was sentenced. Thus, pursuant to Indiana Code section
35-38-1-17(k), the trial court could only grant Roberson’s request for a
modification of his sentence if he received the consent of the prosecuting
attorney.1 The record before the court on appeal contains no indication that
Roberson sought, much less received, the consent of the prosecuting attorney
before requesting a sentence modification. As such, the trial court could not
have granted Roberson the requested relief. We therefore conclude that the
trial court did not abuse its discretion in summarily denying Roberson’s
petition.
1
We note that the 2014 amendments to Indiana Code section 35-38-1-17 removed the requirement for
consent from the prosecuting attorney. However, we held in Johnson v. State, 36 N.E.3d 1130, 1137-38 (Ind.
Ct. App. 2015), that the 2014 amendments did not apply retroactively to penalties incurred, crimes
committed, or proceedings begun before the statute was amended. Further, it is also of note that Indiana
Code section 35-38-1-17 was again amended in 2015 to re-introduce the requirement that a prosecuting
attorney consent to a request for a sentence modification.
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[8] The judgment of the trial court is affirmed.
Pyle, J., and Altice, J., concur.
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