Thomas Roberts v. State of Indiana ( 2013 )


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  •  Pursuant to Ind. Appellate Rule 65(D),
    Oct 04 2013, 5:39 am
    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.
    ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
    CYNTHIA M. CARTER                                  GREGORY F. ZOELLER
    Indianapolis, Indiana                              Attorney General of Indiana
    JUSTIN F. ROEBEL
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    THOMAS ROBERTS,                                    )
    )
    Appellant-Defendant,                        )
    )
    vs.                                     )       No. 49A02-1304-CR-356
    )
    STATE OF INDIANA,                                  )
    )
    Appellee-Plaintiff.                         )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Marc Rothenberg, Judge
    Cause No. 49G02-9710-CF-150126
    October 4, 2013
    MEMORANDUM DECISION – NOT FOR PUBLICATION
    MATHIAS, Judge
    Thomas Roberts (“Roberts”) filed a motion in Marion Superior Court to modify
    his sentence, which the trial court denied. The trial court also denied Roberts’s later
    motion to correct error. Roberts appeals and claims: (1) that the statute governing
    sentence modification is unconstitutional as applied to him, and (2) that the sentence
    modification statute violates Article 1, Section 23 of the Indiana Constitution.
    We affirm.
    Facts and Procedural History
    The facts of this case appear to be undisputed. On March 16, 1999, Roberts
    pleaded guilty to one count of murder. On June 24, 1999, the trial court sentenced
    Roberts to a term of fifty-five years incarceration. Over thirteen years later, on January 4,
    2013, Roberts filed a motion for modification of his sentence in which he requested that
    his sentence be reduced to forty-five years and that he be placed in a re-entry program.
    The Marion County Prosecutor’s Office responded on January 31, 2013, noting that
    pursuant to Indiana Code section 35-38-1-17, the prosecuting attorney must consent to
    any sentence modification and that the prosecuting attorney had not given such consent to
    modify Roberts’s sentence.
    The trial court denied Roberts’s motion on February 7, 2013, writing, “[t]he Court,
    under [Indiana Code section] 35-38-1-17 has no authority to modify Defendant’s
    sentence under the current circumstances without the State’s approval through the
    prosecuting attorney.” Appellant’s App. p. 60.
    Roberts then filed a motion to correct error on March 11, 2013, claiming that the
    statutory requirement of prosecutorial approval of sentence modifications was
    2
    unconstitutional as applied to him and that he was not being treated the same as others
    who were similarly situated, in violation of the guarantee of “equal protection” contained
    in the Indiana Constitution. The State responded to this motion on March 15, 2013,
    countering Roberts’s claims. The trial court then denied Roberts’s motion to correct error
    on March 21, 2013. Roberts now appeals.
    Standard of Review
    As a general rule, a trial court’s ruling on a motion to correct error is reviewed
    only for abuse of discretion. Becker v. State, 
    992 N.E.2d 697
    , 700 (Ind. 2013). This
    deferential standard recognizes the trial court’s superior position to resolve disputed facts.
    
    Id. But when,
    as here, a motion to correct error depends on a question of law, we review
    the trial court’s resolution of that question de novo. 
    Id. I. Due
    Process
    On appeal, Roberts repeats his claim that the sentence modification statute is
    unconstitutional, at least as applied to him. The standard used to review claims that a
    statute is unconstitutional is well established: “every statute is presumed to comport with
    the Constitution until clearly overcome by a contrary showing.” Schweitzer v. State, 
    700 N.E.2d 488
    , 490 (Ind. Ct. App. 1998), trans. denied (citing Boehm v. Town of St. John,
    
    675 N.E.2d 318
    , 321 (Ind. 1996)). “‘The party challenging the constitutionality of the
    statute bears the burden of proof, and all doubts are resolved against that party.’” 
    Id. (quoting Boehm,
    675 N.E.2d at 321). “If there are two reasonable interpretations of a
    statute, one of which is constitutional and the other not, we will choose that path which
    permits upholding the statute because we will not presume that the legislature violated
    3
    the constitution unless such is required by the unambiguous language of the statute.”
    
    Boehm, 675 N.E.2d at 321
    .
    We also note that Roberts claims that the sentence modification statute is not
    unconstitutional on its face but only as applied to him.         A facial challenge to the
    constitutionality of a statute requires that the party claiming the unconstitutionality of the
    statute “demonstrate that there [is] no set of circumstances under which the statute can be
    constitutionally applied,” whereas a challenge to the constitutionality of a statute as
    applied asks the reviewing court only to “declare the challenged statute or regulation
    unconstitutional on the facts of the particular case.” Harris v. State, 
    985 N.E.2d 767
    , 774
    (Ind. Ct. App. 2013), trans. denied.
    The statute at issue, the sentence modification statute, provides:
    (a) Within three hundred sixty-five (365) days after:
    (1) a convicted person begins serving the person’s sentence;
    (2) a hearing is held:
    (A) at which the convicted person is present; and
    (B) of which the prosecuting attorney has been notified; and
    (3) 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. The court must
    incorporate its reasons in the record.
    (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. However, if
    in a sentencing hearing for a convicted person conducted after June 30,
    2001, the court could have placed the convicted person in a community
    corrections program as an alternative to commitment to the department of
    correction, the court may modify the convicted person’s sentence under this
    section without the approval of the prosecuting attorney to place the
    convicted person in a community corrections program under IC 35-38-
    2.6. . . .
    4
    Ind. Code § 35-38-1-17 (emphasis added).
    Roberts claims that this statute is unconstitutional as applied to him because the
    prosecutor’s office denied Roberts’s request for sentence modification without applying
    any objective criteria for its denial and without giving its reasons for the denial. Roberts
    acknowledges that our General Assembly has chosen to give the prosecutor discretion to
    approve or disapprove of sentencing modifications that occur more than a year after the
    defendant was sentenced. He claims, however, that there should be a fair process in place
    to govern that discretion.
    In support of his position, Roberts cites Reed v. State, 
    796 N.E.2d 771
    (Ind. Ct.
    App. 2003). In that case, the defendant claimed that the prosecutor in Marion County had
    a policy of denying all requests for sentencing modification and that this policy was
    unconstitutional. Specifically, he claimed that this alleged “blanket policy” violated the
    Indiana Constitution’s “due course of law” provision under Article 1, Section 12,
    constitutes “vindictive justice” in violation of Article 1, Section 18, and discriminates
    against offenders who are tried in Marion County in violation of both Article I, Section
    23 and the Equal Protection Clause of the federal Constitution.1 The Reed court rejected
    this argument by noting that Reed had failed to produce any evidence to support his
    factual allegation of a blanket policy of denying requests for sentence modification. 
    Id. at 775.
    Without such evidence in the record, “any opinion from this court examining the
    1
    The defendant in Reed also claimed that subsection (b) of the sentencing modification statute violated
    the separation of powers doctrine, but the court rejected this argument. 
    Id. at 774
    (citing Schweitzer, 
    700 N.E.2d 488
    (Ind. Ct. App. 1998), trans. denied; Beanblossom v. State, 
    637 N.E.2d 1345
    (Ind. Ct. App.
    1994), trans. denied)).
    5
    constitutionality of such a policy would [have] be[en] purely advisory in nature. This
    court does not render advisory opinions.” 
    Id. (citing Lineberry
    v. State, 
    747 N.E.2d 1151
    ,
    1155 (Ind. Ct. App. 2001)).
    Roberts reads the Reed opinion as supporting his position that there must be an
    objective review process in place at the prosecutor’s office. We disagree. The Reed
    court did not agree with the defendant’s legal position; it instead rejected the defendant’s
    claims due to a lack of factual support for them in the record before it. And it explicitly
    declined to address the defendant’s legal claims because he provided no factual support.
    See 
    id. We further
    disagree with Roberts that he has supported his factual allegation that
    the prosecutor’s office in this case has a “blanket policy” of denying all requests for
    sentence modification. In support of this claim, Roberts refers us to page 75 of his
    Appendix. This page, however, is simply a copy of an email Roberts’s counsel sent to
    the prosecutor’s office inquiring about the process the office used in reviewing requests
    for sentencing modification; it does not support Roberts’s factual allegation of a “blanket
    policy” of denial.
    Still, Roberts claims that due process is violated by the apparent lack of any
    objective policy or criteria used by the prosecutor’s office in review of requests for
    sentence modification. The Due Process Clause of the United States Constitution and the
    Due Course of Law Clause of the Indiana Constitution prohibit state action which
    deprives a person of life, liberty, or property without the “process” or “course of law”
    that is due, i.e., a fair proceeding. Gingerich v. State, 
    979 N.E.2d 694
    , 710 (Ind. Ct. App.
    2012), trans. denied (citing Pigg v. State, 
    929 N.E.2d 799
    , 803 (Ind. Ct. App. 2010)).
    6
    The same analysis is applicable to claims under both the federal and state constitutions.
    
    Id. (citing Ind.
    High Sch. Athletic Assoc. v. Carlberg, 
    694 N.E.2d 222
    , 241 (Ind. 1997)).
    It is an essential principle of due process that “‘a deprivation of life, liberty, or property
    be preceded by notice and opportunity for hearing appropriate to the nature of the case.’”
    
    Id. (quoting Pigg,
    929 N.E.2d at 803). However, only when a party has been deprived of
    a property or a liberty interest may that party claim denial of due process, because there
    is no independent due process right absent a liberty or a property claim. Wilhoite v.
    Melvin Simon & Assocs., Inc., 
    640 N.E.2d 382
    , 385 (Ind. Ct. App. 1994)); see also
    
    Gingerich, 979 N.E.2d at 710
    (“predicate to any analysis of whether the process provided
    was fair is a determination that the claimant had a protectable life, liberty, or property
    interest at stake.”).
    Here, it is clear that there is no property interest at issue, only a potential liberty
    interest. However, we have long held that a defendant does not have a liberty interest in
    a potential sentence modification. As we explained in Beanblossom v. State, 
    637 N.E.2d 1345
    , 1348 (Ind. Ct. App. 1994), trans. denied, “[g]iven a valid conviction, the criminal
    defendant has been constitutionally deprived of his liberty.” A defendant who has been
    duly convicted and incarcerated has no right or justifiable expectation that his sentence
    will be reduced or suspended. 
    Id. Accordingly, a
    defendant has no recognized liberty
    interest in a modification of his sentence under Indiana law. 
    Id. Because there
    is no
    liberty interest in sentence modification, there is no due process violation to subjecting
    sentence modification to the approval of the prosecutor. 
    Id. Nor does
    due process
    7
    independently require the prosecutor’s office to apply any objective criteria in deciding
    which sentence modifications to approve or disapprove. See 
    id. Simply put,
    without a liberty interest at stake, there can be no due process
    violation. See 
    Wilhoite, 640 N.E.2d at 385
    . Because Roberts was properly convicted
    and sentenced, his due process claim is without merit, and the trial court properly rejected
    that portion of his motion to correct error based on his claim of denial of due process.
    II. Equal Privileges and Immunities
    Roberts also claims that the sentence modification statute violates Article 1,
    Section 23 of the Indiana Constitution.       This provision provides that the “General
    Assembly shall not grant to any citizen, or class of citizens, privileges or immunities,
    which, upon the same terms, shall not equally belong to all citizens.” Ind. Const. art. I, §
    23. When analyzing an equal privileges claim under Article 1, Section 23, we apply the
    two-step analysis established by our supreme court:         “First, the disparate treatment
    accorded by the legislation must be reasonably related to inherent characteristics which
    distinguish the unequally treated classes. Second, the preferential treatment must be
    uniformly applicable and equally available to all persons similarly situated.” Rondon v.
    State, 
    711 N.E.2d 506
    , 513 (Ind. 1999) (quoting Collins v. Day, 
    644 N.E.2d 72
    , 80 (Ind.
    1994)).
    At issue here is subsection (b) of the sentencing modification statute, which
    provides:
    (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
    8
    sentence, subject to the approval of the prosecuting attorney. However, if
    in a sentencing hearing for a convicted person conducted after June 30,
    2001, the court could have placed the convicted person in a community
    corrections program as an alternative to commitment to the department of
    correction, the court may modify the convicted person’s sentence under this
    section without the approval of the prosecuting attorney to place the
    convicted person in a community corrections program under IC 35-38-
    2.6. . . .
    I.C. § 35-38-1-17(b).
    Roberts claims, and the State agrees, that this subsection creates three classes of
    offenders: (1) those who were sentenced before June 30, 2001; (2) those sentenced after
    June 30, 2001 and who did not qualify for placement in community corrections at the
    time of sentencing; and (3) those sentenced after June 30, 2001 and who did qualify for
    placement in community corrections at the time of sentencing. For those in the first two
    categories, prosecutorial approval is required before the trial court may modify a sentence
    more than 365 days after initial sentencing. For the last category, however, the trial court
    does not require prosecutorial approval to modify the offender’s sentence to placement in
    community corrections.
    Roberts claims that there is no rational reason to treat persons sentenced prior to
    2001, some of whom are eligible for community corrections, to be treated differently
    from persons sentenced after 2001 who are eligible for placement in community
    corrections. The problem with Roberts’s argument, however, is that although he was
    sentenced prior to 2001, he was not eligible for placement in community corrections at
    the time of his sentencing.
    9
    Indiana Code section 35-38-2.6-1 sets forth those persons who are eligible for
    placement in community corrections. Subsection (b)(2) of this statute provides that those
    who have been convicted of any of the felonies listed in Indiana Code section 35-50-2-
    2(b)(4)2 are not eligible for such placement in community corrections. And murder, for
    which Roberts was convicted, is the first of the felonies listed in Indiana Code section 35-
    50-2-2(b)(4).
    Thus, at the time of his sentencing, Roberts was ineligible for placement in
    community corrections. And, pursuant to the sentence modification statute, even if
    Roberts had been sentenced after 2001, the trial court could not modify his sentence
    absent prosecutorial approval. In other words, Roberts is not harmed by any alleged
    unequal treatment of offenders in the sentencing modification statute because, whether he
    was sentenced before or after 2001, the result is the same.
    Roberts therefore lacks standing to challenge the constitutional deficiencies in the
    statute he now asserts, i.e. disparate treatment of those sentenced before 2001 and after
    2001 and who did qualify for placement in community corrections at the time of
    sentencing. See Murphy v. State, 
    837 N.E.2d 591
    , 593 (Ind. Ct. App. 2005) (“Generally,
    a person to whom a statute may be applied constitutionally may not challenge the statute
    on the basis that it may conceivably be applied in an unconstitutional manner to others
    not before the court.”). Accordingly, the trial court properly rejected Roberts’s Article 1,
    Section 23 claim.
    2
    Excluded from this list is operating while intoxicated with at least two prior unrelated convictions. See
    I.C. § 35-38-2.6-1(b)(2).
    10
    Conclusion
    Roberts has no liberty interest in modification of his sentence, and the denial of his
    request for sentence modification therefore does not implicate due process concerns.
    Also, Roberts lacks standing to challenge the sentencing modification statute’s allegedly
    unequal treatment of offenders. Because Roberts’s claims are legally without merit, the
    trial court properly denied his motion to correct error.
    Affirmed.
    NAJAM, J., and BROWN, J., concur.
    11