Ronald A. Manley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 20 2017, 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
Ronald Andrew Manley Curtis T. Hill, Jr.
Noblesville, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald A. Manley, June 20, 2017
Appellant-Defendant, Court of Appeals Case No.
29A04-1611-CR-2715
v. Appeal from the
Hamilton Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Paul A. Felix, Judge
Trial Court Cause No.
29C01-9506-CF-106
Kirsch, Judge.
[1] Ronald A. Manley (“Manley”) appeals the trial court’s denial of his motion for
modification of sentence and raises the following restated issue for our review:
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whether the trial court abused its discretion when it denied Manley’s motion to
modify his sentence.
[2] We affirm.
Facts and Procedural History
[3] On June 9, 1995, the State charged Manley, as amended, with four counts of
Class B felony child molesting, one count of Class B felony attempted child
molesting, one count of Class C felony vicarious sexual gratification, two
counts of Class C felony child molesting, and one count of Class A
misdemeanor impersonating a public servant. These charges stemmed from
crimes that occurred at various times in 1994 and 1995. The Class C felony
vicarious sexual gratification and one count of Class C felony child molesting
were later dismissed. Following a jury trial in September 1997, Manley was
convicted of three counts of Class B felony child molesting, Class B felony
attempted child molesting, Class C felony child molesting, and Class A
misdemeanor impersonating a public servant and was acquitted of one count of
Class B felony child molesting. The trial court sentenced him on May 22, 1998
to an aggregate sentence of forty-one years.
[4] Manley appealed, and a panel of this court, in an unpublished decision,
affirmed his convictions and sentence on August 31, 1999. On May 16, 2013
and May 20, 2015, Manley filed motions to modify his sentence. On both
occasions, the motions were denied by the trial court. On October 7, 2016,
Manley filed a third motion to modify his sentence based on rehabilitation
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while incarcerated. On October 10, 2016, the State filed an objection to
Manley’s motion and indicated that the State did not consent to the
modification. On October 31, 2016, the trial court denied Manley’s motion to
modify sentence. Manley now appeals.
Discussion and Decision
[5] Manley contends that the trial court erroneously denied his motion for sentence
modification. We review a trial court’s decision as to a motion to modify
sentence only for an abuse of discretion. Carr v. State, 33 N.E.3d 358, 358-59
(Ind. Ct. App. 2015), trans. denied. An abuse of discretion has occurred when
the trial court’s decision was “clearly against the logic and effect of the facts and
circumstances before the court.” Id.
[6] Manley argues that the trial court abused its discretion when it denied his
motion to modify his sentence. He claims that it was error for the trial court to
deny his motion solely on the objection of the prosecutor pursuant to Indiana
Code section 35-38-1-17(k). Manley asserts that section 35-38-1-17(k) does not
apply to him because he did not commit a violent crime, and therefore, the trial
court had the authority to modify his sentence without the consent of the
prosecutor. Manley further contends that it was a violation of the ex post facto
doctrine to find that he had committed a violent crime because child molesting
was not considered a violent crime at the time he committed his crimes.
[7] A trial judge generally has no authority over a defendant after sentencing.
Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015) (citing State v.
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Harper, 8 N.E.3d 694, 696 (Ind. 2014)), trans. denied. One exception is Indiana
Code section 35-38-1-17, which gives trial courts authority under certain
circumstances to modify a sentence after it is imposed. Id. Indiana Code
section 35-38-1-17(a) states that the section “applies to a person who: (1)
commits an offense; or (2) is sentenced before July 1, 2014.” Therefore, section
35-38-1-17 applies to Manley, because he committed his crimes in 1994 and
1995 and was sentenced on May 22, 1998, which are all prior to July 1, 2014.
[8] Under subsection (k),
[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 three hundred sixty-five (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). Manley qualifies as a violent criminal under the
statute because he was convicted of child molesting. I.C. § 35-38-1-17(d)(10)
(“violent criminal” means a person convicted of child molesting).
[9] Here, Manley filed his third motion for sentence modification on October 6,
2016, which was more than 365 days after he was sentenced. Thus, the trial
court could only grant Manley’s motion for modification of his sentence if he
received the consent of the prosecuting attorney. I.C. § 35-38-1-17(k). The
prosecutor did not consent to Manley’s motion for sentence modification.
Therefore, the trial court could not grant Manley’s requested relief.
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[10] Manley argues on appeal that he was not considered a violent criminal when he
committed child molesting in 1994 according to Indiana Code section 35-50-1-
2(a) (1994) because child molesting was not listed as a crime of violence.
However, Indiana Code section 35-38-1-17, the sentence modification statute,
clearly states that “[a]s used in this section, ‘violent criminal’ means a person
convicted of . . . child molesting.” I.C. § 35-38-1-17(d)(10). Therefore, Manley
is considered a violent criminal for sentence modification purposes despite what
crimes were listed in Indiana Code section 35-50-1-2, which is a sentencing
statute placing limits on consecutive sentences based on crimes of violence, in
1994. The trial court did not abuse its discretion in denying Manley’s motion
for sentence modification.
[11] Additionally, Manley also claims that classifying child molesting as a violent
crime violates the ex post facto prohibitions of the Indiana Constitution because
the list of violent crimes in Indiana Code section 35-38-1-17 did not exist when
he committed his crimes. He also points to Indiana Code section 35-50-1-2,
which also did not list child molesting as a violent crime at the time his crimes
were committed. An ex post facto law applies retroactively to disadvantage an
offender’s substantive rights. Collins v. State, 911 N.E.2d 700, 712 (Ind. Ct.
App. 2009), trans. denied. To determine whether a particular statute is an ex
post facto law, we examine whether the change increases the penalty by which
a crime is punishable or alters the definition of criminal conduct. Id.
[12] In the present case, the effect of the 2015 amendment to section 35-38-1-17 was
to leave Manley in the same position he was in when he committed his crimes
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in 1994 and 1995. The pertinent portion of the statute in effect at the time of
the commission of Manley’s crime read as follows:
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) (West Supp. 1992). The 2015 amendment to section 35-38-
1-17 did not increase the punishment for, or change the elements of, any crime
or deprive anyone of a defense or lesser punishment. Under either of the
versions of the statute, Manley was required to have approval of the prosecutor
in order to have his sentence modified. The change in the statute merely
permitted non-violent criminals to petition for sentence modification without
prosecutorial approval. As such, we conclude that it does not violate
constitutional prohibitions against ex post facto laws. See Collins, 911 N.E.2d at
712. Finding that the trial court correctly applied Indiana Code section 35-38-1-
17, and that the law did not violate Manley’s constitutional rights, we affirm.
[13] Affirmed.
[14] Mathias, J., and Altice, J., concur.
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