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Swallows v. State

Court of Appeals of Indiana

April 30, 2015

Mitchell Swallows, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Appeal from the Bartholomew Circuit Court. The Honorable Stephen R. Heimann, Judge. Cause No. 85-CF-247.

ATTORNEY FOR APPELLANT: Heath Y. Johnson, Johnson & Gray, Franklin, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Angela N. Sanchez, Deputy Attorney General, Indianapolis, Indiana.

Kirsch, Judge. Vaidik, C.J., and Bradford, J., concur.

OPINION

Page 545

Kirsch, Judge.

[¶1] Mitchell Swallows appeals the trial court's denial of his petition to modify his sentence, contending that the trial court erred in finding that the revised modification statute, which became effective July 1, 2014, did not apply to his sentence.

[¶2] We affirm.[1]

Facts and Procedural History

[¶3] In 1985, the State charged Swallows with two counts of attempted murder, four counts of criminal confinement, one count of attempted criminal deviate conduct, and one count of rape. A jury found him guilty of all charges, and on December 18, 1989, the trial court sentenced him to an aggregate sentence of 100 years.

[¶4] On October 1, 2014, Swallows filed a petition for reduction of sentence, and the prosecutor filed an objection to the petition. The trial court denied Swallows's petition on November 5, 2014, with the following reasoning:

1. The defendant was sentenced on December 18, 1989.
2. Indiana Code 35-38-1-17(b) provides: " If more than three hundred sixty-five (365) days have elapsed since the defendant began serving the sentence . .., the Court may reduce . . . the sentence, subject to the approval of the prosecuting attorney."
3. The prosecuting attorney has objected to the request. Therefore, the Court has no authority to modify the sentence since more than three hundred and sixty-five (365) days have elapsed ...

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