Robert M. Nolan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:58 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Robert M. Nolan Gregory F. Zoeller
New Castle, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert M. Nolan, March 31, 2016
Appellant-Defendant, Court of Appeals Case No.
22A01-1503-CR-120
v. Appeal from the Floyd Superior
Court
State of Indiana, The Honorable Maria D. Granger,
Appellee-Plaintiff. Judge
Trial Court Cause No.
22D03-0907-FB-1637
Najam, Judge.
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Statement of the Case
[1] Robert Nolan appeals the trial court’s denial of his petition for modification of
his sentence following his convictions for rape, as a Class B felony; child
molesting, as a Class C felony; and two counts of child seduction, Class D
felonies. Nolan presents a single issue for our review, namely, whether the trial
court abused its discretion when it denied his petition for modification of his
sentence. We affirm.
Facts and Procedural History
[2] On July 2, 2010, a jury found Nolan guilty of rape, as a Class B felony; child
molesting, as a Class C felony; and two counts of child seduction, Class D
felonies. The trial court entered judgment of conviction on all counts and
sentenced Nolan to an aggregate term of thirty years with eight years suspended
to probation. This court affirmed his convictions and sentence on appeal.
Nolan v. State, No. 22A01-1007-CR-433, 2012 WL 456537 (Ind. Ct. App.
February 14, 2012).
[3] On June 17, 2014, Nolan filed a petition for modification of his sentence. At a
hearing on the petition, the State objected to any modification of his sentence.
Still, the trial court heard testimony from several character witnesses. The trial
court took the matter under advisement, and on March 2, 2015, the trial court
denied Nolan’s petition. This appeal ensued.
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Discussion and Decision
[4] We review a trial court’s decision regarding modification of a sentence for an
abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). An
abuse of discretion occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before the court or when the
court misinterprets the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).
[5] A trial court generally has no authority over a defendant after sentencing. State
v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). A notable 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. From 1991 until
June 30, 2014, the relevant section of the sentence modification statute read:
(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. . . .
Ind. Code § 35-38-1-17(b) (2009) (emphasis added). Effective July 1, 2014, the
criminal code was subject to a comprehensive revision pursuant to P.L. 158-
2013 and P.L. 168-2014. The pertinent section of the sentence modification
statute was amended to read:
(c) 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
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the court was authorized to impose at the time of sentencing.
The court must incorporate its reasons in the record.
Ind. Code § 35-38-1-17(c) (2014). The legislature also included a specific
savings clause as part of the 2014 revision of the criminal code, stating that:
(a) A SECTION of P.L. 158-2013 or P.L. 168-2014 does not
affect:
(1) penalties incurred;
(2) crimes committed; or
(3) proceedings begun;
before the effective date of that SECTION of P.L. 158-2013 or
P.L. 168-2014. Those penalties, crimes, and proceedings
continue and shall be imposed or enforced under prior law as if
that SECTION of P.L. 158-2013 or P.L. 168-2014 had not been
enacted.
(b) The general assembly does not intend the doctrine of
amelioration (see [Vicory] v. State [272 Ind. 683], 400 N.E.2d 1380
(Ind. 1980)) to apply to any SECTION of P.L. 158-2013 or P.L.
168-2014.
I.C. § 1-1-5.5-21.
[6] This court has held that “the 2014 amendment to Indiana Code section 35-38-1-
17 was neither remedial nor procedural” and “the savings clause evinces the
intent of the legislature to apply the new criminal code only prospectively.”
Johnson v. State, 36 N.E.2d 1130, 1137 (Ind. Ct. App. 2015), trans. denied. Here,
as the State points out, “every provision of the savings clause bars Nolan’s
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petition: his crimes were committed, his penalties incurred, and these
proceedings were begun before July 1, 2014.” Appellee’s Br. at 9. Because the
prosecutor objected to Nolan’s petition for modification of his sentence, the trial
court had no authority to modify his sentence under the applicable version of
Indiana Code Section 35-38-1-17(b), and the court did not abuse its discretion
when it denied Nolan’s petition. See Carr v. State, 33 N.E.2d 358, 359 (Ind. Ct.
App. 2015) (holding pre-2014 version of sentence modification statute applied
where defendant petitioned for modification after effective date of new version
of statute but had committed crimes prior to 2000), trans. denied.
[7] Affirmed.
Robb, J., and Crone, J., concur.
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