Marshaun Bugg v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 06 2019, 11:05 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Marshaun Bugg Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marshaun Bugg, May 6, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2890
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-0202-MR-59298
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2890 | May 6, 2019 Page 1 of 4
Statement of the Case
[1] Marshaun Bugg1 appeals the trial court’s denial of his motion to modify his
sentence to placement in a community corrections program. Bugg raises two
issues for our review, which we restate as whether the trial court erred when it
denied Bugg’s motion. 2 We affirm.
Facts and Procedural History
[2] On July 7, 2006, the trial court sentenced Bugg to sixty-five years in the
Department of Correction following his conviction for murder. On November
7, 2018, Bugg filed a “motion for alternative placement” with the trial court.
Appellant’s App. Vol. 2 at 16. In that motion, Bugg stated that he “does not
wish the Court to construe this Motion as a ‘Motion for Modification of
Sentence’[;] Sentence Length to remain at present time and only alternative
placement is to be considered herein.” Id. Bugg did not obtain the prosecuting
attorney’s consent to his request for alternative placement. The trial court
denied Bugg’s motion the same day. This appeal ensued.
1
There is confusion in the record over the spelling of Bugg’s name. We follow the spelling Bugg uses in his
own signature.
2
Bugg’s purported issue that the trial court clerk somehow interfered with his motion because “DENIED”
was later stamped on that motion is not supported by cogent reasoning, and we do not consider it. See Ind.
Appellate Rule 46(A)(8)(a).
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Discussion and Decision
[3] On appeal, Bugg asserts that the trial court erred when it denied his motion to
modify his placement. In general, we review a trial court’s decision regarding
modification of a sentence for an abuse of discretion. Johnson v. State, 36
N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before the court or when the court misinterprets the
law. Id. However, where, as here, the question on appeal involves the
interpretation of certain statutes, our review is de novo. Id.
[4] Bugg’s request in his motion to the trial court notwithstanding, the trial court
treated his motion as a motion for modification of sentence under Indiana Code
Section 35-38-1-17. That statute states that a defendant who, like Bugg, has
been convicted of murder (among other offenses) “may, . . . [a]fter the elapse of
[a] three hundred sixty-five (365) day period” from the date of his sentencing,
“file a petition for sentence modification” only if “the consent of the
prosecuting attorney” is given. Ind. Code § 35-38-1-17(k) (2018). Our case law
is clear that a request for a change in placement is a request for a “sentence
modification” under that statute. Keys v. State, 746 N.E.2d 405, 407 (Ind. Ct.
App. 2001). And the record is clear here that Bugg did not obtain the consent
of the prosecuting attorney when he made his request for a change in
placement. Accordingly, the trial court properly denied Bugg’s motion.
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[5] Nonetheless, Bugg argues that the trial court applied the wrong statute to his
motion to modify his placement. In particular, Bugg asserts that the trial court
should have treated his motion as a request under Indiana Code Chapter 35-38-
2.6, which applies to the direct placement of a defendant to a community
corrections program at the time of sentencing. But we have long recognized
that Chapter 35-38-2.6 “merely authorizes the trial court to suspend a sentence
and place a defendant in a community corrections program at the time of
sentencing . . . . [I]t does not allow the trial court to modify placement after
sentencing.” Id. In other words, Indiana Code Chapter 35-38-2.6 did not apply
to Bugg’s motion for modification of placement. Id.; see also I.C. § 35-38-2.6-
3(a) (“The court may, at the time of sentencing, suspend the sentence and order a
person to be placed in a community corrections program . . . .”) (emphasis
added). Accordingly, Bugg’s assertion that the trial court erred when it denied
his motion for modification of placement fails as a matter of law, and we affirm
the trial court’s judgment.
[6] Affirmed.
Baker, J., and Robb, J., concur.
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