James Ketchum v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 16 2019, 8:53 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
James Ketchum Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Ketchum, December 16, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1341
v. Appeal from the Rush Circuit
Court
State of Indiana, The Honorable David Northam,
Appellee-Plaintiff, Judge
Trial Court Cause Nos.
70C01-1508-F6-469
70C01-1510-F3-617
Robb, Judge.
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Case Summary and Issue
[1] In 2016, James Ketchum pleaded guilty to intimidation, a Level 6 felony, and
the trial court sentenced him to serve two years in the Indiana Department of
Correction (“DOC”). Following an incident in which Ketchum struck another
person while he was incarcerated, the State filed new charges against him under
a separate cause number. Ketchum pleaded guilty to aggravated battery, a
Level 3 felony, and the trial court sentenced him to serve twelve years with six
years suspended. The trial court ordered Ketchum’s sentence to be served
consecutively to his sentence for his intimidation conviction. In 2019, Ketchum
filed a motion to modify his sentence, in which he requested the trial court
order his sentences to run concurrently. The trial court denied his motion.
Ketchum appeals and raises one issue for our review which we restate as
whether the trial court erred in denying Ketchum’s motion to modify his
sentence. Concluding the trial court did not err, we affirm.
Facts and Procedural History
[2] On August 22, 2015, Ketchum communicated a threat to Todd Click, a law
enforcement officer, with the intent to place Officer Click in fear of retaliation
for a prior lawful act. Ketchum was arrested the same day and posted bond two
days later. The State charged Ketchum with intimidation, a Level 6 felony;
criminal trespass, a Class A misdemeanor; resisting law enforcement, a Class A
misdemeanor; and disorderly conduct, a Class B misdemeanor, under cause
number 70C01-1508-F6-469. Ketchum’s bond was revoked due to another
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charge and he was rearrested on September 15, 2015.1 Ketchum remained in
jail until he pleaded guilty to intimidation, a Level 6 felony, on May 20, 2016,
and the State dismissed the remaining charges. The trial court sentenced
Ketchum to serve two years in the DOC.2
[3] On October 21, 2015, while incarcerated in the Rush County Jail, Ketchum
struck another person, fracturing the victim’s skull. The State charged Ketchum
with aggravated battery causing permanent disfigurement, a Level 3 felony, and
battery resulting in serious bodily injury, a Level 5 felony, under cause number
70C01-1510-F3-617. On September 6, 2016, Ketchum pleaded guilty to
aggravated battery, a Level 3 felony. At the time of the sentencing hearing,
Ketchum was serving his sentence for the intimidation conviction, which would
conclude on September 10. At the hearing, the State asserted that Ketchum’s
sentence for the battery conviction had to be served consecutive to the
intimidation sentence that he was currently serving. Defense counsel
responded, “We’re in agreement . . . with regard to the . . . sentences have to be
consecutive because of the sequence in which they were committed[.]”
[September 6, 2016] Transcript, Volume 2 at 8. The trial court sentenced
1
Although the record indicates that Ketchum’s bond was revoked in this matter due to “another charge”
there is limited information in the record detailing the facts and circumstances surrounding the revocation of
Ketchum’s bond. [May 20, 2016] Transcript at 9.
2
Ketchum was given credit time for August 22-24, 2015 and September 15, 2015 through May 20, 2016.
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Ketchum to twelve years in the DOC with six years suspended and ordered his
sentence to run consecutively to his intimidation sentence.3
[4] On March 19, 2019, Ketchum filed a Petition to Run Sentences Imposed
Concurrent and the State filed an objection. See Appellant Appendix, Volume 2
at 9, 49-51. The trial court denied Ketchum’s petition on May 16. Ketchum
now appeals.4
Discussion and Decision
Motion to Modify Sentence
[5] Ketchum’s petition is effectively a motion to modify his sentence and we review
it as such. Generally, we review a trial court’s decision regarding modification
of a sentence for an abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196
(Ind. 2010). An abuse of discretion occurs when the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before it or
when the court misinterprets the law. Johnson v. State, 36 N.E.3d 1130, 1133
(Ind. Ct. App. 2015), trans. denied. However, “[w]here the issue presented on
3
The trial court ordered his sentence to begin on September 11, 2016, after he had executed his sentence for
his intimidation conviction.
4
In his brief, Ketchum also appears to challenge the alleged denial of his Motion to Correct Sentence, in
which he asked the trial court to apply 322 days of “pre-trial time” to his sentence for his aggravated battery
conviction. Appellant App., Vol. 2 at 43. He filed this motion on February 22, 2019 and then filed his
motion to modify sentence on March 19. And on April 25, 2019, Ketchum filed a notice with the trial court
addressing its failure to rule on his Motion to Correct Sentence. The trial court subsequently denied his
motion to modify sentence and never ruled on his motion to correct sentence. Because the trial court did not
rule on Ketchum’s motion to correct sentence, there is no appealable order for us to review. Accordingly, we
decline to address this issue.
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appeal is a pure question of law, we review the matter de novo.” State v. Harper,
8 N.E.3d 694, 696 (Ind. 2014) (quoting State v. Moss-Dwyer, 686 N.E.2d 109,
110 (Ind. 1997)).
[6] After issuing a final judgment, a trial court retains only such continuing
jurisdiction as permitted by the judgment or granted to the court by statute or
rule. State v. Porter, 729 N.E.2d 591, 592 (Ind. Ct. App. 2000). Indiana Code
section 35-38-1-17 authorizes a trial court to reduce or suspend a sentence, in
certain circumstances, after a defendant has begun serving the sentence. Barber
v. State, 122 N.E.3d 809, 810 (Ind. 2019). Ketchum was convicted of
aggravated battery and is therefore a “violent criminal.” Ind. Code § 35-38-1-
17(d)(6). As such, the following subsection applies:
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 [365] day period, a violent criminal may not file a petition
for sentence modification without the consent of the prosecuting
attorney.
Ind. Code § 35-38-1-17(k) (emphasis added).
[7] Because Ketchum filed his petition more than 365 days after he was sentenced,
he needed the prosecuting attorney’s consent to authorize the trial court to
modify his sentence. Ketchum clearly did not have the prosecutor’s consent as
the State expressly opposed his petition. Without this consent, the trial court
lacked the authority to modify Ketchum’s sentence and therefore, it properly
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denied his motion. See id.; see also Manley v. State, 868 N.E.2d 1175, 1179 (Ind.
Ct. App. 2007), trans. denied. We find no error.
Conclusion
[8] Because Ketchum did not have the prosecuting attorney’s consent to file his
request for modification, the trial court properly denied Ketchum’s motion to
modify his sentence. Accordingly, the judgment of the trial court is affirmed.
[9] Affirmed.
Mathias, J., and Pyle, J., concur.
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