MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Sep 05 2017, 6:29 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Nathan D. Russell Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathan D. Russell, September 5, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1704-CR-775
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G21-1201-FA-3252
Bailey, Judge.
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Case Summary
[1] Nathan D. Russell (“Russell”) appeals the dismissal of his sentence
modification petition based upon a lack of statutory compliance. Russell
presents a sole issue for review: whether the trial court misinterpreted the
statute governing sentence reductions, Indiana Code Section 35-38-1-17, to
require a prosecutor’s consent.1 We affirm.
Facts and Procedural History
[2] On July 9, 2012, Russell and the State executed a plea agreement whereby
Russell agreed to plead guilty to Dealing in Cocaine or a Narcotic Drug, as a
Class A felony,2 and Possession of a Firearm by a Serious Violent Felon, as a
Class B felony.3 The trial court entered judgments of conviction and imposed
an aggregate sentence of thirty years, with ten years suspended to probation.
[3] On March 15, 2017, Russell filed a motion for sentence modification, which
was summarily dismissed by the trial court. This appeal ensued.
1
When required, prosecutorial consent to a sentence modification is a procedural condition precedent to the
court’s exercise of authority. Woodford v. State, 58 N.E.3d 282, 283 n. 4 (Ind. Ct. App. 2016).
2
Ind. Code § 35-48-4-1.
3
I.C. § 35-47-4-5.
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Discussion and Decision
[4] The trial court dismissed Russell’s petition with the following language:
The correspondence dated 3-17-17 [Petition for Modification] has
been received by the Court but not reviewed as it does not
comply with the Indiana Rules of Trial Procedure.
(App. Vol. II, pg. 11.)
[5] It appears that the trial court believed that it lacked authority to entertain
Russell’s petition. No hearing was conducted and the trial court did not state
more specific reasons for the disposition of Russell’s petition. Russell asserts,
and the State agrees, that the trial court interpreted Indiana Code Section 35-38-
1-17 to require prosecutorial consent to Russell’s petition.
[6] To the extent that an issue of statutory interpretation is raised, we observe that
the primary goal in statutory interpretation is to ascertain and give effect to the
legislature’s intent. State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). The
language of the statute is the best evidence of that intent. Id.
[7] Russell argues that, in amending Indiana Code Section 35-38-1-17, “our
legislature eliminated the need for the Prosecuting Attorney’s approval.”
Appellant’s Brief at 3. “Indiana’s sentence modification statute was
substantially amended in 2014 as part of a broad overhaul of the criminal
code.” Woodford v. State, 58 N.E.3d 282, 284-85 (Ind. Ct. App. 2016). This
Court had previously held that the 2014 statute did not apply to offenders
convicted or sentenced before the statute’s effective date. Id. at 285 (citing
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Swallows v. State, 31 N.E.3d 544 (Ind. Ct. App. 2015), trans. denied; Hobbs v.
State, 26 N.E.3d 983 (Ind. Ct. App. 2015)). However, in 2015, our General
Assembly clarified that the sentence modification statute “applies to a person
who: (1) commits an offense; or (2) is sentenced before July 1, 2014.” I.C. § 35-
38-1-17(a) (Supp. 2015). As such, the 2015 amendment was intended to cure a
defect or mischief that existed in a prior statute and was remedial. Woodford, 58
N.E.3d at 285.
[8] The sentence modification statute now provides in relevant part:
(e) At any time after:
(1) a convicted person begins serving the person’s sentence; and
(2) the court obtains a report from the department of correction
concerning the convicted person’s conduct while imprisoned;
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.
I.C. § 35-38-1-17(e). The 2015 amendment also permits a convicted person
who is not a violent criminal to file two petitions for sentence modification
without first obtaining the consent of the prosecuting attorney. I.C. § 35-38-1-
17(j)(2).
[9] Under this statutory scheme, a person who is classified as a violent criminal is
not relieved of the obligation of obtaining prosecutorial consent for petitions
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filed more than one year after sentencing.4 Subsection (d)(14) defines “violent
criminal” for purposes of Indiana Code Section 35-38-1-17 to include “a person
convicted of … Unlawful possession of a firearm by a serious violent felon (IC
35-47-4-5).” Russell is a violent criminal, having been convicted of Possession
of a Firearm by a Serious Violent Felon. Lacking the requisite consent, Russell
did not file a petition upon which relief could be granted. When relief cannot
be afforded under the statute, dismissal is appropriate. See Vazquez v. State, 37
N.E.3d 962, 964 (Ind. Ct. App. 2015).
[10] Affirmed.
Baker, J., and Altice, J., concur.
4
One petition may be filed within 365 days without prosecutorial consent.
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