Joshua L. Wynn v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Mar 28 2014, 6:08 am
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:
JOSHUA L. WYNN GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSHUA L. WYNN, )
)
Appellant-Defendant, )
)
vs. ) No. 58A05-1303-CR-115
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE OHIO CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause No. 58C01-0803-FA-1
March 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant-Defendant Joshua Wynn appeals from the trial court’s denial of his motion
for modification of sentence or change of placement, arguing that the trial court abused its
discretion in doing so. Because the prosecutor objected to any modification, the trial court
did not have the authority to alter Wynn’s sentence. Moreover, because Wynn has failed to
establish that he was ever eligible for a community corrections placement, he has failed to
establish that the trial court abused its discretion in refusing to alter his placement. We
affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
This court relayed the underlying facts in its unpublished disposition of Wynn’s direct
appeal:
On July 29, 2008, Wynn pled guilty pursuant to a plea agreement to
dealing in a schedule II controlled substance within 1000 feet of school
property, a Class A felony. In exchange, the State dismissed charges for two
other counts of Class A felony dealing in a schedule II controlled substance
within 1000 feet of school property, two counts of conspiracy to deal in a
schedule II controlled substance within 1000 feet of school property, a Class A
felony, and one count of possession of a controlled substance as a Class D
felony. At the guilty plea hearing, the State laid a factual basis, establishing
that on February 12, 2008, Wynn sold Oxycontin to Detective Nicholas Beetz
of the Lawrenceburg Police Department, who was working undercover. Wynn
chose the location of the transaction, a BP gas station in Rising Sun, Indiana,
and the pair met two more times at the gas station, where Detective Beetz
purchased more Oxycontin from Wynn. The BP gas station in question was
found to be 873 feet from the SEIOC Head Start school building. The trial
court accepted the plea agreement.
Wynn v. State, Cause No. 58A04-0810-CR-629, slip op. at 1 (Ind. Ct. App. April 28, 2009).
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The trial court sentenced Wynn on September 23, 2008, to thirty years of incarceration
with ten suspended to probation. On February 4, 2013, Wynn filed a motion for direct
placement or modification of sentence, a motion to which the State objected three days later.
On February 11, 2013, the trial court denied Wynn’s motion.
DISCUSSION AND DECISION
Indiana Code Section 35-38-1-17(b) provides as follows:
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. However, if in a
sentencing hearing for a convicted person conducted after June 30, 2001, the
court could have placed the convicted person in a community corrections
program as an alternative to commitment to the department of correction, the
court may modify the convicted person’s sentence under this section without
the approval of the prosecuting attorney to place the convicted person in a
community corrections program under IC 35-38-2.6.
Wynn was sentenced in September of 2008 and filed his request for reduction over
four years later in 2013. Any reduction or suspension under these circumstances must be
made with the approval of the prosecutor, which in this case was withheld. The trial court
simply did not have the authority to reduce or suspend any more of Wynn’s sentence. “[I]f
the motion [to modify sentence] is made outside the 365-day period and the prosecutor
opposes the motion for sentence modification, the trial court lacks authority to modify the
sentence.” Hawkins v. State, 951 N.E.2d 597, 599 (Ind. Ct. App. 2011), trans. denied.
Additionally, Wynn does not even claim, much less establish, that he could have been
placed in a community corrections program at the time of his sentencing. Wynn’s argument
fails on this basis. However, even if we assume, arguendo, that Wynn was eligible for such a
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placement, he has still failed to establish an abuse of discretion. “A trial court’s decision to
reduce or suspend a sentence is discretionary.” Catt v. State, 749 N.E.2d 633, 643 (Ind. Ct.
App. 2001), trans. denied. “As a general rule, an abuse of discretion will not be found unless
a decision is clearly against the logic and effect of the facts and circumstances before the
court.” Banks v. State, 847 N.E.2d 1050, 1053 (Ind. Ct. App. 2006), trans. denied. “In
determining whether an abuse of discretion occurred, we may not reweigh the evidence, but
will consider only the evidence favorable to the judgment.” Id.Pursuant to Wynn’s very advantageous plea agreement, he pled guilty to one Class A
felony in exchange for the dismissal of four other Class A felony charges and a Class D
felony charge. Wynn received only the advisory sentence for his conviction and also the
benefit of having ten years of that thirty-year sentence suspended to probation. In support of
his motion, Wynn submitted several certificates demonstrating his accomplishments while
incarcerated, including earning his GED, making the Dean’s List for two semesters through
Ball State University, and receiving favorable reports for participation in the Purposeful
Living Units Serve Program. While Wynn’s efforts to improve himself should be
commended, “[t]he mere fact that the process of rehabilitation may have started does not
compel a reduction or other modification in sentence.” Catt, 749 N.E.2d at 643. Under the
circumstances, Wynn has failed to establish an abuse of discretion in this regard.
The judgment of the trial court is affirmed.
RILEY, J., and ROBB, J., concur.
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