Argelio Gonzales v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
Sep 11 2012, 9:27 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK LEEMAN GREGORY F. ZOELLER
Cass County Conflict Public Defender Attorney General of Indiana
Logansport, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ARGELIO GONZALES, )
)
Appellant-Defendant, )
)
vs. ) No. 09A02-1202-CR-92
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CASS CIRCUIT COURT
The Honorable Leo T. Burns, Judge
Cause No. 09C01-9712-CF-53
September 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Argelio Gonzales appeals the trial court’s order denying his motion for sentence
reduction contending that the trial court erred in holding that in the absence of the
approval of the prosecuting attorney it had no authority to reduce a criminal sentence
after more than three hundred sixty-five days had elapsed since the convicted person
began serving the sentence pursuant to Ind. Code §35-38-1-17.
We affirm.
In April of 1998, Gonzales was convicted of possession of cocaine, as a Class A
felony,1 dealing in cocaine, as a Class A felony, 2 possession of marijuana, as a Class D
felony,3 and maintaining a common nuisance, as a Class D felony.4 On May 27, 1998,
the trial court sentenced Gonzales to concurrent sentences of thirty years for each of the
Class A felonies and eighteen months for each of the Class D felonies, and remanded him
to begin serving his sentences. In 2005, Gonzales’ conviction and sentence for dealing in
cocaine was set aside, but his remaining convictions and sentences remained in effect.
In September of 2011, Gonzales filed a petition to modify his sentence, and the
State objected. The trial court summarily denied the petition pursuant to Ind. Code §35-
38-1-17 which provides in operative part:
(a) Within three hundred sixty-five (365) days after:
(1) a convicted person begins serving the person’s sentence;
...
1
See Ind. Code § 35-48-4-6.
2
See Ind. Code § 35-48-4-1.
3
See Ind. Code § 35-48-4-11.
4
See Ind. Code § 35-48-4-13.
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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 . . . , the court may reduce or
suspend the sentence, subject to the approval of the prosecuting attorney. . .
.
(Emphasis added.)
On appeal, Gonzales contends that the prosecutor’s discretion under this section is
subject to judicial review and that the prosecutor abused his discretion in refusing his
approval. In State v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001), our Supreme Court said,
“the trial court lacked authority to modify Fulkrod’s sentence.” Even though the trial
court in Fulkrod had “particularly reserved . . . the right to modify this sentence” at
sentencing, our Supreme Court said that the purported reservation was “of no moment.
The court was seeking to reserve a power that it did not possess beyond the 365-day
limit.” (Emphasis added.)
So, too, here. In the absence of the approval of the prosecuting attorney, a trial
court has no authority to reduce a criminal sentence beyond the 365-day limit. Holding
that a trial court has the authority to judicially review the prosecutor’s discretion
regarding such approval would be contrary to the express directive of our Supreme Court.
Affirmed.
NAJAM, J., and MAY, J., concur.
3