Terry Twitty, Sr. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Apr 27 2015, 9:12 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Terry Twitty, Sr. Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry Twitty, Sr., April 27, 2015
Appellant-Petitioner, Court of Appeals Case No.
32A04-1410-CR-472
v. Appeal from the Hendricks Superior
Court
State of Indiana,
The Honorable Karen M. Love,
Appellee-Respondent. Judge
Cause No. 32D03-0212-FA-8
Najam, Judge.
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Statement of the Case
[1] Terry R. Twitty, Sr., appeals the trial court’s denial of his motion for
modification of sentence. Twitty presents one issue for our review, namely,
whether the trial court abused its discretion when it denied his motion. We
affirm.
Facts and Procedural History
[2] On June 19, 2003, after a three-day trial, a jury convicted Twitty of five counts
of child molesting, three counts as Class A felonies and two counts as Class C
felonies. Subsequently, on August 14, 2003, the trial court sentenced Twitty to
an aggregate sentence of 108 years in the Indiana Department of Correction.
Twitty appealed, and we affirmed Twitty’s convictions and his sentence. See
Twitty v. State, No. 32A01-1001-PC-19, 2010 WL 3782054, at *1 (Ind. Ct. App.
Sept. 29, 2010), trans. denied.
[3] Later, Twitty filed a pro se petition for post-conviction relief, “in which he
alleged that he received ineffective assistance of trial and appellate counsel.” Id.With respect to his latter claim, Twitty contended that appellate counsel erred
when it failed to “anticipate . . . changes to Indiana’s sentencing
laws . . . announced by our Supreme Court in Smylie v. State, 823 N.E.2d 679(Ind. 2005).” Id. at *2. The post-conviction court rejected Twitty’s ineffective
assistance of counsel claims but, nevertheless, “modified Twitty’s sentence
downward for an aggregate sentence of eighty-four years executed.” Id. Twitty
appealed the denial of his ineffective assistance of counsel claims, and the State
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cross-appealed the downward modification of Twitty’s sentence. Id. at *1. We
affirmed the post-conviction court’s denial of Twitty’s ineffective assistance of
counsel claims, but we reversed the downward modification of Twitty’s
sentence and ordered the post-conviction court to reinstate his original
sentence.1 See id. at *3-5.
[4] Following the disposition of his post-conviction claims, on December 20, 2012,
Twitty filed a pro se motion for modification of sentence, which the trial court
denied. However, on July 1, 2014, amendments to our criminal code took
effect, and, on August 28, 2014, Twitty filed a second pro se motion for
modification of sentence, this time under revised Indiana Code Section 35-38-1-
17(c). The State objected to Twitty’s motion, and the trial court denied the
motion. This appeal ensued.
Discussion and Decision
[5] Twitty contends that the trial court erred when it denied his second petition to
modify his sentence, which Twitty filed pursuant to the current version of
Indiana Code Section 35-38-1-17(c). “We review a trial court’s decision to
modify a sentence only for abuse of discretion. An abuse of discretion occurs if
the court’s decision is clearly against the logic and effect of the facts and
1
The United States District Court for the Southern District of Indiana also recently denied a petition for a
writ of habeas corpus filed by Twitty. See Twitty v. Butts, No. 1:12–cv–00985–TWP–MJD, 2013 WL 1975868(S.D. Ind. May 13, 2013).
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circumstances before the court.” Hobbs v. State, 26 N.E.2d 983 (Ind. Ct. App.
2015).
[6] According to the provision of the Indiana Code relied on by Twitty:
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.
Ind. Code § 35-38-l-17(c).
[7] In Hobbs, we addressed the very same argument now presented by Twitty, and
we stated:
[Indiana Code Section 35-38-1-17(c)] became effective on July 1,
2014, as part of our 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 . . . ; 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’ 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
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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’ arguments to the contrary are without
merit.
26 N.E.3d at 985 (emphasis in original).
[8] Hobbs is directly on point, and, therefore, Twitty’s argument that Indiana Code
Section 35-38-1-17 was intended to be retroactive is contrary to law. Twitty
was convicted and sentenced in 2003. Under the law in effect at that time, if
the State objected to a motion to modify sentence, a trial court could not grant
the motion. Here, the State objected, and the trial court appropriately denied
Twitty’s motion. The court did not abuse its discretion when it did so.
[9] Affirmed.
Baker, J., and Friedlander, J. concur.
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