Richard Dodd v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Sep 27 2017, 11:19 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Richard Dodd Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Dodd, September 27, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1706-CR-1211
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff Hurley, Judge
Trial Court Cause No.
71D02-9712-CF-550
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017 Page 1 of 4
[1] Richard Dodd appeals from the trial court’s order denying his motion to modify
his sentence. On appeal, he argues that the trial court erred in concluding that
the State’s consent to the filing was required.
[2] We affirm.
Facts & Procedural History
[3] In 1998, Richard Dodd was convicted of attempted murder and burglary. He
received consecutive sentences of fifty and eight years, respectively. His
convictions were affirmed on direct appeal and our Supreme Court denied
transfer. Thereafter, Dodd filed various petitions for post-conviction relief and
motions regarding his sentence. In 2013, the post-conviction court found that
the consecutive sentences imposed exceeded the maximum permitted for an
episode of criminal conduct and resentenced Dodd to fifty years for attempted
murder and a consecutive term of five years for burglary.
[4] In 2016, Dodd filed the current motion to modify his sentence. The State
objected and, after a change of judge, the trial court issued a written order
denying the motion because the State had not consented to the filing. Dodd
now appeals.
Discussion & Decision
[5] Dodd argues that the trial court erred in concluding that the State’s consent to
the filing of the motion to modify was required. This court reviews a trial
court’s decision on a motion to modify a sentence for an abuse of discretion.
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Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied. “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.” Id. The issue presented here is one of statutory
interpretation, which is a question of law. See id. When presented with a pure
question of law, we review the matter de novo. Id.
[6] The sentence modification statute in effect at the time Dodd was sentenced
provided that if more than 365 days had elapsed since the defendant began
serving his or her sentence, the court was permitted to reduce or suspend the
sentence only with the approval of the prosecuting attorney. See Ind. Code §
35-38-1-17 (West 1992). In 2014, the modification statute was amended to
allow nonviolent offenders to twice pursue sentence modification without the
prosecuting attorney’s consent. Ind. Code § 35-38-1-17(j). Individuals
classified as “violent criminals,” however, are still required to obtain the
consent of the prosecuting attorney if the motion to modify is filed more than
365 days from the date of sentencing. I.C. § 35-38-1-17(k). The statute defines
“violent criminal” to include individuals convicted of attempted murder. I.C. §
35-38-1-17(d). In 2015, the legislature again amended the statute to clarify that
the amended modification statute applies to individuals who, like Dodd,
committed their crimes or were sentenced prior to July 1, 2014. See I.C. § 35-
38-1-17(a); Woodford v. State, 58 N.E.3d 282, 285 (Ind. Ct. App. 2016).
[7] The current version of the modification statute is therefore controlling, but
because Dodd is classified as a violent criminal under that version of the statute
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and more than 365 days have elapsed from the date of his sentencing, the
prosecutor’s consent was required. Nevertheless, Dodd argues that he should
not be considered a violent criminal for the purposes of I.C. § 35-38-1-17
because, at the time he was sentenced, attempted murder was not classified as a
crime of violence under Ind. Code § 35-50-1-2. But I.C. § 35-50-1-2 addresses
the limits on the lengths of consecutive sentences for nonviolent felonies arising
out of an episode of criminal conduct. It has no application to sentence
modifications and is therefore irrelevant to the case before us. The sentence
modification statute is self-contained, providing its own definition of “violent
criminal,” which expressly includes individuals convicted of attempted murder.
I.C. § 35-38-1-17. Dodd wishes to obtain the benefits of the amended
modification statute (i.e., the elimination of the consent requirement for
nonviolent criminals) without being subject to its limitations (i.e., the definition
of violent criminal). He cannot have it both ways. The trial court correctly
concluded that the prosecutor’s consent to the motion to modify was required.
[8] Judgment affirmed.
[9] Baker, J. and Bailey, J., concur.
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