Michael Wise, Sr. 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 May 31 2019, 9:19 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Russell B. Cate Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC Attorney General of Indiana
Carmel, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Wise, Sr., May 31, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3141
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Steven R. Nation,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-1412-CF-9933
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3141 | May 31, 2019 Page 1 of 6
Statement of the Case
[1] Michael Wise (“Wise”) appeals the denial of his motion for modification to be
placed in a Purposeful Incarceration Program, which he filed while incarcerated
and serving a sixteen-year sentence. Wise argues the trial court erred when it
denied his motion after treating it as a motion to modify his sentence.
Concluding that there was no error in denying Wise’s motion, we affirm the
trial court.
[2] We affirm.
Issue
Whether the trial court erred by denying Wise’s motion to modify
his sentence.
Facts
[3] On December 11, 2014, the State charged Wise with one count of Class C
felony check fraud and one count of Class D felony check fraud, alleging that
the two offenses had occurred between June 20, 2014 and June 30, 2014. The
State also alleged that Wise was an habitual offender. The matter proceeded to
a jury trial, and the jury found him guilty as charged. At the subsequent
sentencing hearing, the trial court sentenced Wise to an aggregate executed
sentence of sixteen (16) years in the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3141 | May 31, 2019 Page 2 of 6
[4] The Chronological Case Summary indicates that on July 18, 2018, Wise filed a
“Motion to Modify Sentence”1 (“First Motion to Modify Sentence”), which the
trial court denied on August 1, 2018. (App. 19). Thereafter, on September 14,
2018, Wise filed a “Motion for Modification of Placement” (“Second Motion to
Modify Sentence”), seeking placement in a Community Corrections program.
(App. 102). The trial court denied this modification motion on September 26,
2018.
[5] Later, on November 15, 2018, Wise filed a “Motion for Placement in the
Purposeful Incarceration Program” (“Third Motion to Modify Sentence”),
which is the motion at issue in this appeal. (App. 116). In that motion, Wise
stated that he had “completed the Growth Responsibility Integrity Purpose
(GRIP) substance abuse therapeutic community [program]” and requested that
the trial court “issue a new sentencing order to the Department of Correction
placing him in the Purposeful Incarceration Program” by “modifying his
sentence and granting him alternative placement.” (App. 116, 119). The State
objected, and the trial court denied the motion on November 29, 2018. In its
order, the trial court stated the following:
Comes now the Court having examined the Defendant’s 3rd
Motion for Modification of Sentence; the State of Indiana having
submitted its objection thereto; and the Court having examined
the pleadings and its case file. The Court, being duly advised in
the premises, now DENIES Defendant’s said motion.
1
Wise failed to include this motion in his appendix.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3141 | May 31, 2019 Page 3 of 6
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED that Defendant’s 3rd Motion for Modification of
Sentence shall be denied. The Defendant has now filed three
Motions to Modify and is barred by statute from filing any
further requests for modification.
(App. 124). In other words, the trial court applied the most recently amended
version of INDIANA CODE § 35-38-1-17 when it denied his motion. Wise now
appeals.
Decision
[6] At the outset, we note that this Court has previously held that a request for a
change in placement after sentencing is a request for a “sentence modification”
under INDIANA CODE § 35-38-1-17. Keys v. State, 746 N.E.2d 405, 407 (Ind. Ct.
App. 2001). It follows that the trial court properly viewed Wise’s motion for
placement modification as a motion to modify his sentence. Indeed, Wise’s
own motion requested that the trial court modify his sentence and issue a new
sentencing order. Wise’s argument to the contrary is unconvincing.
[7] On appeal, Wise argues that the trial court erred when it denied his Third
Motion to Modify Sentence. We generally 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. Johnson
v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied. However, we
review matters of statutory interpretation de novo. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3141 | May 31, 2019 Page 4 of 6
[8] At issue in this case is INDIANA CODE § 35-38-1-17, which was amended in July
2014 and May 2015. The parties dispute what version of the statute applies to
Wise’s motions. Previously, this Court held that the July 2014 amendment had
no retroactive application. See, e.g., Swallows v. State, 31 N.E.3d 544, 547 (Ind.
Ct. App. 2015) (holding that defendant sentenced in 1989 had no right to
sentence modification without prosecutor’s approval under 2014 version of
INDIANA CODE § 35-38-1-17), trans. denied, superseded by statutory amendment.
However, effective May 2015, the amended statute now “applies to a person
who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.” See IND.
CODE § 35-38-1-17(a); P.L. 164-2015, Sec. 2. Because Wise committed his
offenses in June 2014, we agree with the State that the statute, as currently
written, applies to Wise.
[9] INDIANA CODE § 35-38-1-17 provides, in pertinent part:
(a) Notwithstanding IND. CODE § 1-1-5.5-21, this section applies
to a person who:
(1) commits an offense; or
(2) is sentenced;
before July 1, 2014.
***
(j) This subsection applies only to a convicted person who is not
a violent criminal. A convicted person who is not a violent
criminal may file a petition for sentence modification under this
section:
(1) not more than one (1) time in any three hundred sixty-five
(365) day period; and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3141 | May 31, 2019 Page 5 of 6
(2) a maximum of two (2) times during any consecutive period
of incarceration;
without the consent of the prosecuting attorney.
I.C. § 35-38-1-17(a), (j).
[10] Here, Wise filed three motions to modify his sentence: the first on July 18,
2018; the second on September 14, 2018; and the third on November 15, 2018.
In his Third Motion to Modify Sentence, which is at issue, he requested
placement in the Purposeful Incarceration Program. All three of Wise’s
motions are subject to the limitations imposed in INDIANA CODE § 35-38-1-
17(j). Because Wise exceeded both restrictions on filings by filing more than
one modification petition in a one-year period and more than two during the
same period of incarceration, the consent of the prosecutor was necessary. The
State objected to Wise’s third petition, which meant that it did not satisfy the
requirements of INDIANA CODE § 35-38-1-17. Because Wise’s Third Motion to
Modify Sentence exceeded the authorized number of filings as a matter of law,
the trial court did not abuse its discretion when it denied his motion.
[11] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3141 | May 31, 2019 Page 6 of 6