Clifton K. Miller v. Sate of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be regarded as Jun 27 2019, 8:03 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Clifton K. Miller Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clifton K. Miller, June 27, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-CR-3138
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Hon. Teresa Cataldo, Judge
Appellee-Respondent. Trial Court Cause No.
20D03-0101-CF-14
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3138 | June 27, 2019 Page 1 of 5
Case Summary
[1] Clifton Miller was convicted of Murder in 2001, and the trial court sentenced
him to sixty-five years of incarceration. In 2018, Miller petitioned the trial
court to alter his placement from the Department of Correction (“the DOC”) to
community corrections, on which petition the trial court declined to act four
days later. Miller contends that the trial court improperly treated his purported
motion for alternative placement as a petition for sentence modification and
also seems to contend that the trial court’s refusal to act on his petition four
days after it was submitted establishes a denial of access to the courts. Because
we disagree with Miller’s contentions, we affirm.
Facts and Procedural History
[2] On September 27, 2001, following Miller’s conviction for murder, the trial court
sentenced him to sixty-five years of incarceration in the DOC. In 2002, we
affirmed Miller’s conviction and sentence on direct appeal. See Miller v. State,
No. 20A03-0111-CR-362 (August 16, 2002). In 2009, we affirmed the post-
conviction court’s denial of post-conviction relief. See Miller v. State, No.
20A03-0901-PC-20, slip op. at *6 (September 3, 2016), trans. denied. On
December 7, 2018, Miller filed a petition styled as one for consideration of
alternative placement in which he asked the trial court to modify his sentence
from a DOC commitment to community corrections. On December 11, 2018,
the trial court issued a notice declining to take action on Miller’s petition, which
it had treated as one for sentence modification. The trial court noted that Miller
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is a violent criminal according to Indiana law, and that, in the absence of
consent by the prosecuting attorney, the trial court was unable to consider his
motion for sentence modification.
Discussion and Decision
I. Denial of Petition to Modify Sentence
[3] Miller contends that the trial court erred in refusing to act on his petition to
modify his sentence. As an initial matter, Miller contends that his petition
should have been treated as a request for alternative placement in community
corrections pursuant to Indiana Code section 35-38-2.6-3. Section 35-38-2.6-3,
however, only applies to requests made “at the time of sentencing” and so has
no applicability here. It is well-settled that “[i]f after sentencing, a defendant
requests to modify his placement and be allowed to serve his sentence in a
community corrections program, this is a request for a modification of sentence
under Ind. Code § 35-38-1-17.” Keys v. State, 746 N.E.2d 405, 407 (Ind. Ct.
App. 2001).
[4] Having established that Indiana Code section 35-38-1-17 controls, we note first
that Miller qualifies as a “violent criminal” by virtue of his murder conviction.
Ind. Code § 35-38-1-17(d)(1). That said, subsection (k) provides, in part, as
follows:
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
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may not file a petition for sentence modification without the
consent of the prosecuting attorney.
[5] Miller’s petition was filed many years beyond the point after which he was
required to obtain consent from the prosecutor, consent that was not obtained.
Consequently, the trial court lacked the authority to even file Miller’s petition,
much less rule on it. See, e.g., Hawkins v. State, 951 N.E.2d 597, 599 (Ind. Ct.
App. 2011) (holding that if request is made outside the 365-day period and
prosecutor opposes the modification, trial court lacks authority to modify the
sentence), trans. denied; Manley v. State, 868 N.E.2d 1175, 1179 (Ind. Ct. App.
2007) (concluding that trial court lacked authority to grant defendant’s request
to modify his placement where request was made more than 365 days after he
was sentenced and without prosecutor’s consent), trans. denied.
[6] Moreover, Miller’s suggestion that he was entitled to have a hearing on his
petition is without merit. As mentioned, Miller’s petition cannot even be filed,
much less considered. Under the circumstances, a hearing would be
superfluous. Finally, to the extent that Miller argues that the operation of
Indiana Code subsection 35-38-1-17(k) amounts to vindictive justice, this
argument is without merit as well. It is true that Article 1, section 18 of the
Indiana Constitution provides that “[t]he penal code shall be founded on the
principles of reformation, and not vindictive justice.” However, “there is no
recognized liberty interest in a modification of [a] sentence under Indiana law”
and “refusing to reduce the length of a sentence is not the equivalent of denying
the right to rehabilitate, much less the equivalent of vindictive justice.” Manley,
868 N.E.2d at 1178 (citation and quotation marks omitted).
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II. Official Bias
[7] Miller seems to suggest that he has been the victim of bias and prejudice on the
part the trial court clerk. Miller seems to allege that he was “shortstopped” due
to his pro se status and points to the fact that the trial court’s ruling was entered
four days after he submitted his petition for sentence modification. Miller also
seems to suggest that the trial court clerk never even allowed his petition to get
to the trial court and, instead, entered a ruling purporting to be from the trial
court which was not. While there is a “‘fundamental constitutional right of
access to the courts[,]’” Maggert v. Call, 817 N.E.2d 649, 650 (Ind. Ct. App.
2004) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)), suffice it to say that
Miller points to no actual evidence that any denial of access occurred in this
case. Miller’s allegations are nothing more than innuendo, and our own review
of the record reveals no hint of bias, prejudice, or denial of access to the court.
Miller has failed to establish that he was denied access to the court.
[8] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
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