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Moore v. State

Court of Appeals of Indiana

April 22, 2015

Derek L. Moore, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 1242

Appeal from the Marion Superior Court. The Honorable Mark D. Stoner. Cause No. 49G06-0410-FB-187118.

ATTORNEY FOR APPELLANT: Frederick Vaiana, Voyles, Zahn & Paul, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana.

Bailey, Judge. Brown, J., concurs. Robb, J., dissents in part and concurs in part with opinion.

OPINION

Page 1243

Bailey, Judge.

Case Summary

[¶1] Derek L. Moore (" Moore" ) appeals the trial court's denial of his motion to correct error, which challenged the court's denial of his petition for sentence modification. We hold that the trial court erred in finding that it did not have the authority to entertain Moore's petition for sentence modification. However, we affirm the trial court's judgment to deny Moore's petition on its merits.

Issues

[¶2] Moore raises one issue on appeal, which we restate as: whether the trial court erred when it denied Moore's petition for sentence modification because the trial court did not apply a recent statutory revision that provided Moore procedural, as opposed to substantive, relief. We also address an issue first raised in the State's brief: whether Moore's appeal should be dismissed as moot.

Facts and Procedural History

[¶3] On February 13, 2006, pursuant to a plea agreement, Moore pleaded guilty in cause number 49G06-0410-FB-187118 (" FB-7118" ) to three counts of Robbery, as Class B felonies, and two counts of Unlawful Possession of a Firearm by a Serious Violent Felon, as Class B felonies. He also admitted to being a habitual offender.

[¶4] On March 16, 2006, the court imposed ten year sentences for each of the five Class B felony convictions and ordered that they be served consecutively. The court also enhanced Moore's first Robbery conviction sentence by ten years because of his habitual offender adjudication. The result was an aggregate sentence of sixty years.

[¶5] On July 11, 2014, Moore petitioned the trial court to modify his sentence in FB-7118.[1] The sentence modification statute

Page 1244

under which Moore sought relief provides:

(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 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 " revised statute" ). The revised statute became effective July 1, 2014.

[¶6] On July 16, 2014, the court denied Moore's petition, citing a prior version of Indiana Code section 35-38-1-17, which provides, in relevant part:

(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. [. . . .]

I.C. § 35-38-1-17(b) (Supp. 2006). The court found that it lacked authority to entertain Moore's petition because the prosecuting attorney had not consented to a modification. The court also noted that Moore's crime and sentence occurred prior to 2014 and " [t]he new statutes, effective on July 1, 2014, do not have retroactive application." (App. at 31.)

[¶7] On August 15, 2014, Moore filed a motion to correct error, arguing that the court had authority to entertain his petition because it was filed after the effective date of the revised statute. Moore argued that under the revised statute, the court had authority to modify his sentence without the prosecutor's consent.

[¶8] The court denied Moore's motion to correct error, reasoning that a savings clause enacted in 2014 " clearly indicates the legislature's intent that the new criminal code has no retroactive application." (App. at 35.) The court's order also stated that even if the court had authority to entertain Moore's petition, it would not grant the petition " given the serious nature of these charges and the defendant's criminal history[.]" (App. at 35.)

[¶9] Moore now appeals.

Discussion and Decision

Standard of Review

[¶10] A ruling on a motion to correct error generally is reviewed only for an abuse of discretion. Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). When a motion to correct error depends on a question of law, we review the trial court's resolution of that question de novo. Id. Matters of statutory interpretation are reviewed de novo because they present pure questions of law. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).

[¶11] The overarching principle in statutory interpretation is to first decide " whether the legislature has spoken clearly and unambiguously on the point in question." Sloan v. State, 947 N.E.2d 917, 922 (Ind. 2011) (quoting Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001)). If a statute is clear and unambiguous, we do not apply any rules of construction other than giving effect to the plain and ordinary meaning of the ...


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