Mitchell Swallows v. State of Indiana , 2015 Ind. App. LEXIS 380 ( 2015 )

Apr 30 2015, 9:28 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Heath Y. Johnson Gregory F. Zoeller
Johnson & Gray Attorney General of Indiana
Franklin, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mitchell Swallows, April 30, 2015
Court of Appeals Case No.
Appellant-Defendant, 03A05-1412-CR-549
v. Appeal from the
Bartholomew Circuit Court
State of Indiana,
The Honorable Stephen R. Heimann,
Appellee-Plaintiff. Judge
Cause No. 85-CF-247
Kirsch, Judge.
[1] Mitchell Swallows appeals the trial court’s denial of his petition to modify his
sentence, contending that the trial court erred in finding that the revised
modification statute, which became effective July 1, 2014, did not apply to his
sentence.
Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015 Page 1 of 7
[2] We affirm.1
Facts and Procedural History
[3] In 1985, the State charged Swallows with two counts of attempted murder, four
counts of criminal confinement, one count of attempted criminal deviate
conduct, and one count of rape. A jury found him guilty of all charges, and on
December 18, 1989, the trial court sentenced him to an aggregate sentence of
100 years.
[4] On October 1, 2014, Swallows filed a petition for reduction of sentence, and the
prosecutor filed an objection to the petition. The trial court denied Swallows’s
petition on November 5, 2014, with the following reasoning:
1. The defendant was sentenced on December 18, 1989.
2. Indiana Code 35-38-1-17(b) provides: “If more than three hundred
sixty-five (365) days have elapsed since the defendant began serving
the sentence . . . , the Court may reduce . . . the sentence, subject to
the approval of the prosecuting attorney.”
3. The prosecuting attorney has objected to the request. Therefore,
the Court has no authority to modify the sentence since more than
three hundred and sixty-five (365) days have elapsed since the
defendant began serving the sentence.
4. Effective July 1, 2014, the criminal code was revised regarding
whether a sentence modification request is subject to the approval of
1
In its brief, the State notes that Appellant’s Appendix “includes only a copy of the CCS, the notice of
appeal with the trial court’s order attached, and the notice of completion of the clerk’s record. It does not
include any documents related to the underlying case, such as the original sentencing order, which would
normally be necessary for review of the denial of a motion to modify a sentence. However, because
Swallows only asks this Court to review the narrow legal question of whether the amended statute applies to
him and does not ask this court to reduce his sentence, the State did not seek to compel the filing of a
conforming appendix.” Appellee’s Br. at 1-2 n.1. We agree with the State’s assessment.
Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015 Page 2 of 7
the prosecuting attorney. This Court finds that a sentence imposed
prior to July 1, 2014 is still subject to the approval of the prosecuting
attorney.
....
IT IS THEREFORE ORDERED that the Petition for Reduction of
Sentence is denied. This is a final order. . . .
Appellant’s Br. at 11 (emphasis in original). Swallows now appeals.
Discussion and Decision
[5] Swallows contends that the trial court erred by concluding that the revised
sentence modification statute that became effective July 1, 2014, does not apply
to his sentence. Essentially, Swallows is asking this court to reverse the denial
of his petition for modification because the trial court erroneously determined it
did not have authority under the current version of Indiana Code section 35-38-
1-17.
[6] We review a trial court’s denial of a petition to modify a sentence only for
abuse of discretion. Hobbs v. State, 26 N.E.3d 983, 985 (Ind. Ct. App. 2015). If
the ruling rests on a question of law, however, we review the matter de novo.
State v. Holloway, 980 N.E.2d 331, 334 (Ind. Ct. App. 2012). Matters of
statutory interpretation present pure questions of law. State v. Brunner, 947
N.E.2d 411, 416 (Ind. 2011) (citing Gardiner v. State, 928 N.E.2d 194, 196 (Ind.
2010)).
[7] The first step in interpreting a statute is to determine whether the legislature has
spoken clearly and unambiguously on the point in question. City of Carmel v.
Steele, 865 N.E.2d 612, 618 (Ind. 2007). “When a statute is clear and
Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015 Page 3 of 7
unambiguous, we need not apply any rules of construction other than to require
that words and phrases be taken in their plain, ordinary, and usual sense.” Id.“However, when a statute is susceptible to more than one interpretation it is
deemed ambiguous and, thus, open to judicial construction. And when faced
with an ambiguous statute, other well-established rules of statutory construction
are applicable.” Id. “One such rule is that our primary goal of statutory
construction is to determine, give effect to, and implement the intent of the
Legislature.” Id. “To effectuate legislative intent, we . . . examine the statute as
a whole. And we do not presume that the Legislature intended language used
in a statute to be applied illogically or to bring about an unjust or absurd result.”
Id.[8] Indiana Code section 35-38-1-17 addresses the reduction or suspension of a
sentence. Prior to July 1, 2014, that statute provided that a trial court lost
jurisdiction to modify a defendant’s sentence after 365 days unless the
prosecuting attorney consented to the modification.2 In pertinent part, it
provided:
(b) If more than three hundred sixty-five (365) days have elapsed since
the convicted person began serving the sentence and after a hearing at
which the convicted person is present, the court may reduce or
suspend the sentence, subject to the approval of the prosecuting attorney. . . .
2
Swallows committed his crimes in 1985. At that time, Indiana Code section 35-38-1-17 allowed a trial
court to reduce or suspend a sentence only during the first 180 days after the defendant began serving his
sentence. Nevertheless, we refer to the 365 day window because that is the time frame used by the trial court
and both parties, and under the facts of this case, the distinction between 180 days and 365 days is not
relevant.
Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015 Page 4 of 7
Ind. Code § 35-38-1-17(b) (2013) (emphasis added).
[9] Applying that statute to Swallows’s modification request is simple: the
prosecuting attorney did not approve, so the trial court could not modify his
sentence. However, Swallows contends he is entitled to the benefit of the
revised sentence modification statute, which was part of an overhaul of our
criminal code pursuant to P.L. 158–2013 and P.L. 168–2014. This revision
resulted in, among other things, the elimination of the prosecutor’s veto
regarding a petition for sentence modification. Indiana Code section 35-38-1-
17, which became effective July 1, 2014, now provides:
(c) If more than three hundred sixty-five (365) days have elapsed since
the convicted person began serving the sentence, 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.
See Ind. Code § 35-38-1-17(c) (2014); see also Ind. P.L. 168-2014, § 58 (effective
July 1, 2014); Ind. P.L. 158-2013, § 396 (effective July 1, 2014). As part of the
overhaul, the Legislature included a saving clause stating, “A SECTION of
P.L.158-2013 or P.L.168-2014 does not affect: (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 that SECTION of P.L.158-2013 or P.L.168-2014 had not been
enacted.” Hobbs, 26 N.E.3d at 985 (citing Ind. Code § 1-1-5.5-21 (a)).
[10] Our decision is governed by this court’s reasoning in Hobbs. Hobbs was
convicted in 2006 for offenses he committed in 2005. Id. at 984-85. The trial
Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015 Page 5 of 7
court sentenced him to an aggregate sentence of twenty-three years. Id. at 985.
Hobbs’s convictions and sentence were affirmed on appeal. Id. Thereafter, he
petitioned for post-conviction relief. The post-conviction court’s denial of his
petition was affirmed on appeal. Id. Finally, on July 23, 2014, Hobbs filed a
petition for modification of his sentence pursuant to Indiana Code section 35-
38-1-17(c) (2014). Id. Our court denied Hobbs’s petition on the basis that the
revised version of that statute did not apply to him. The Hobbs Court reasoned:
[Indiana Code section 35-38-1-17(c)] became effective July 1, 2014, as
part of the General Assembly’s overhaul of our criminal code pursuant
to P.L. 158-2013 and P.L. 168-2014. It was not in effect at the time
Hobbs committed his offense against L.M.; rather, the law in effect at
that time stated in relevant part: “If more than three hundred sixty-
five (365) days have elapsed since the defendant began serving the
sentence and after a hearing at which the convicted person is present,
the court may reduce or suspend the sentence, subject to the approval of
the prosecuting attorney.” I.C. § 35-38-1-17(b) (2005) (emphasis added);
see also Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008) (“The
sentencing statute in effect at the time a crime is committed governs
the sentence for that crime.”).
Despite Hobbs’[s] assertions to the contrary on appeal, there is no
question that the current version of Indiana Code Section 35-38-1-17
does not apply to him. I.C. § 1-1-5.5-21 (“The general assembly does
not intend the doctrine of amelioration ... to apply to any SECTION
of P.L. 158-2013 or P.L. 168-2014”); see also Marley v. State, 17 N.E.3d
335, 340 (Ind. Ct. App. 2014) (“It is abundantly clear ... that the
General Assembly intended the new criminal code to have no effect on
criminal proceedings for offenses committed prior to the enactment of
the new code.”), trans. denied. Hobbs’[s] arguments to the contrary are
without merit.
26 N.E.3d at 985-86.
Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015 Page 6 of 7
[11] Noting the plain meaning of the savings clause, and following the intent of the
Legislature and our court’s reasoning in Hobbs, we conclude that the current
version of Indiana Code section 35-38-1-17, which became effective July 1,
2014, does not apply to Swallows’s petition to modify a sentence that he began
serving in 1989. The trial court did not err in denying Swallows’s petition to
modify his sentence.
[12] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 03A05-1412-CR-549 |April 30, 2015 Page 7 of 7