Anthony Gonterman v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 27 2015, 9:15 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Anthony Gonterman Gregory F. Zoeller
Carlisle, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Gonterman, April 27, 2015
Appellant-Defendant, Court of Appeals Case No.
42A01-1410-CR-435
v. Appeal from the Knox Circuit Court
State of Indiana, The Honorable Sherry B. Gregg
Gilmore, Judge
Appellee-Plaintiff.
Cause No. 42C01-9508-CF-43
Najam, Judge.
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Statement of the Case
[1] Anthony Gonterman appeals the trial court’s denial of his motion for
appointment of special prosecutor and motion for modification of sentence.
Gonterman presents two issues for our review:
1. Whether the trial court abused its discretion when it
denied his motion for appointment of a special prosecutor.
2. Whether the trial court abused its discretion when it
denied his motion for modification of sentence.
We affirm.
Facts and Procedural History
[2] On August 18, 1995, the State charged Gonterman with kidnapping, as a Class
A felony; escape, as a Class B felony; and robbery, as a Class B felony. And on
March 22, 1996, Gonterman pleaded guilty as charged. On April 11, 1996, the
trial court entered judgment of conviction and sentenced Gonterman to an
aggregate term of fifty-five years. Gonterman did not appeal his sentence.
[3] On April 7, 1997, Gonterman filed a “verified motion for reduction or
suspension of sentence,” which the trial court denied. Appellant’s App. at 2.
On October 23, 2006, Gonterman filed a motion for modification of sentence,
and, after the State objected, the trial court denied that motion. On February
26, 2007, Gonterman filed another motion for modification of sentence and a
petition for the appointment of a special prosecutor. The State filed an
objection to the petition for the appointment of a special prosecutor. Following
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a hearing, the trial court denied Gonterman’s petition for appointment of a
special prosecutor, and the court subsequently denied Gonterman’s motion for
modification of sentence. Gonterman appealed the trial court’s denial of those
motions, but his appeal ultimately was dismissed with prejudice.
[4] On July 8, 2014, Gonterman filed another motion for modification of sentence
and a motion for appointment of special prosecutor, and the trial court denied
those motions. This appeal ensued.
Discussion and Decision
Issue One: Motion for Appointment of Special Prosecutor
[5] Gonterman first contends that the trial court abused its discretion when it
denied his motion to appoint a special prosecutor. But we do not address that
issue on the merits because, as the State points out, it is barred by res judicata.
The doctrine of res judicata prevents the repetitious litigation of
disputes that are essentially the same. French v. French, 821
N.E.2d 891, 896 (Ind. Ct. App. 2005). The principle of res
judicata is divided into two branches: claim preclusion and issue
preclusion, also referred to as collateral estoppel. Id.***
Claim preclusion applies where a final judgment on the merits
has been rendered and acts as a complete bar to a subsequent
action on the same issue or claim between those parties and their
privies. Id. When claim preclusion applies, all matters that were
or might have been litigated are deemed conclusively decided by
the judgment in the prior action. Dawson v. Estate of Ott, 796
N.E.2d 1190, 1195 (Ind. Ct. App. 2003). The following four
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requirements must be satisfied for a claim to be precluded under
the doctrine of res judicata: (1) the former judgment must have
been rendered by a court of competent jurisdiction; (2) the former
judgment must have been rendered on the merits; (3) the matter
now in issue was, or could have been, determined in the prior
action; and (4) the controversy adjudicated in the former action
must have been between the parties to the present suit or their
privies. Small v. Centocor, Inc., 731 N.E.2d 22, 26 (Ind. Ct. App.
2000), trans. denied.
Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans.
denied.
[6] Here, in 2007, Gonterman filed a petition for a special prosecutor, which the
trial court denied. Gonterman appealed, and that appeal was dismissed with
prejudice. It is well settled that a dismissal with prejudice is a dismissal on the
merits, and, as such, it is conclusive of the rights of the parties. Lakeshore Bank
& Trust Co. v. United Farm Bureau Mut. Ins. Co., 474 N.E.2d 1024, 1027 (Ind. Ct.
App. 1985). Claim preclusion bars Gonterman’s challenge to the trial court’s
denial of his petition for appointment of special prosecutor in this appeal. Herr,
834 N.E.2d at 703.
Issue Two: Motion for Modification of Sentence
[7] Gonterman next contends that the trial court abused its discretion when it
denied his motion for modification of sentence. Generally, a trial judge has no
authority over a defendant after he pronounces sentence. Sanders v. State, 638
N.E.2d 840, 841 (Ind. Ct. App. 1994). A limited exception is found in Indiana
Code Section 35-38-1-17(b), which, at the time Gonterman committed the
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instant offenses, provided that, after 365 days have elapsed since the date of
sentencing, a trial judge may reduce or suspend the sentence subject to the
approval of the prosecuting attorney.1 Id. Where the prosecuting attorney
acquiesces in the motion for sentence modification under subsection (b), the
decision to grant or deny the motion is within the trial court’s discretion. Id.[8] Here, more than one year had elapsed between the date of sentencing and
Gonterman’s motion for modification of sentence, and the prosecutor did not
acquiesce in the motion.2 Thus, the trial court did not have discretion to
consider Gonterman’s motion. See id. Accordingly, Gonterman cannot show
that the trial court abused its discretion when it denied his motion.
Affirmed.
Baker, J., and Friedlander, J. concur.
1
Effective July 1, 2014, Indiana Code Section 35-38-1-17 was amended in relevant part to remove the
requirement that the prosecutor approve of any sentence modification. It is undisputed that the former
version of the statute applies here.
2
In State v. Harper, 8 N.E.3d 694, 697 (Ind. 2014), our supreme court explained that, in the context of the
former version of Indiana Code Section 35-38-1-17(b), a prosecutor’s acquiescence requires something more
than mere inaction in the face of a defendant’s motion to modify his sentence. In Harper, the trial court held
a hearing on the defendant’s motion to modify his sentence, and the court expressed its desire to modify the
sentence should the prosecutor approve. The prosecutor requested time to consider the motion, and the trial
court told the prosecutor to let the court know its position within one week. The prosecutor did not express
any position to the trial court within the time allotted, and the court granted the motion. On appeal, our
supreme court held that “the prosecutor’s conduct and communications adequately conveyed the ‘approval
of the prosecuting attorney’ required in Indiana Code section 35-38-1-17(b), and that the trial court did not
err in proceeding to grant the defendant’s motion for sentence modification.” Id.Court of Appeals of Indiana | Memorandum Decision 42A01-1410-CR-435| April 27, 2015 Page 5 of 5