from the Vermillion Circuit Court The Honorable John Rader,
Special Judge Trial Court Cause No. 83C01-0404-MR-2
Appellant Pro Se Jeremy Schmitt Carlisle, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Ellen H. Meilaender Deputy Attorney General
Jeremy Schmitt, pro se, appeals the denial
of his petition to modify sentence. We reverse and remand.
and Procedural History
On April 28, 2004, the State charged Schmitt with
murder and Class A felony conspiracy to commit
murder. On March 28, 2005, pursuant to a plea
agreement, the trial court accepted Schmitt's guilty plea
and sentenced him to fifty years for Class A felony
conspiracy. Schmitt appealed the sentence, and we affirmed in
a memorandum decision. Schmitt v. State, No.
83A01-0507-CR-321 (Ind.Ct.App. May 31, 2006) (mem. dec.),
On May 11, 2009, Schmitt filed a petition for modification of
his sentence. The State objected. The trial court denied his
petition on May 29, 2009. On November 30, 2012, Schmitt filed
a petition for post-conviction relief that was denied.
Schmitt appealed the denial, and we affirmed. Schmitt v.
State, No. 83A05-1409-PC-425, 2015 WL 4875793
(Ind.Ct.App. Aug. 14, 2015) (mem. dec.), trans.
On April 29, 2014, Schmitt filed another petition for
modification of his sentence. The trial court ordered an
evaluation be prepared by the Department of Correction
("DOC"). The State objected to the modification. On
August 21, 2014, the trial court denied the petition.
On May 15, 2017, Schmitt filed another petition for
modification of his sentence wherein he lists the many
programs, educational and employment, that he has completed
while incarcerated. The State objected to the modification.
Prior to a ruling, on September 18, 2017, Schmitt filed a
motion to reconsider. The trial court denied the petition,
Defendant herein filed his Petition for Modification of
Sentence to which the State responded and thereafter
Defendant filed a Motion to Reconsider such sentence
modification. Defendant according to his Petitions has made
positive strides during his incarceration which are to be
complimented. However the Court finds that such Petition
should be and hereby is denied.
(App. Vol. II at 41.)
Generally, we review denial of a motion to modify a sentence
for an abuse of discretion. Gardiner v. State, 928
N.E.2d 194, 196 (Ind. 2010). However, we "review matters
of statutory interpretation de novo because they
present pure questions of law." State v.
Brunner, 947 N.E.2d 411, 416 (Ind. 2011), reh'g
At issue in this case is Indiana Code section 35-38-1-17,
which defines when a trial court has authority to modify a
sentence. Prior to July 1, 2014, the statute provided a
defendant who had served more than 365 days of his sentence
could move to have his sentence modified by the trial court,
"subject to the approval of the prosecuting
attorney." Ind. Code § 35-38-l-17(b) (2013)
(emphasis added). Thus, if the prosecutor did not approve,
the trial court had no authority to modify a sentence.
Effective July 1, 2014, our legislature eliminated the need
for the prosecuting attorney's approval. See
I.C. § 35-38-l-17(c) (2014) (providing, after defendant
has served 365 days, court has authority to reduce or suspend
sentence to a sentence available at the time of sentencing
and "court must incorporate its reasons in the
record"). However, another statute that also took effect
in 2014 made the new version of Indiana Code section
35-38-1-17 inapplicable to "(1) penalties incurred; (2)
crimes committed; or (3) proceedings begun; before [July 1,
2014]. Those penalties, crimes, and proceedings continue and
shall be imposed and enforced under prior law as if [the new
sentencing laws] had not been enacted." I.C. §
1-1-5.5-21(a) (2014). Accordingly, if Schmitt, who was
sentenced in 2005, had petitioned for sentence modification
after July 1, 2014, the court could not have modified his
sentence without the prosecutor's approval. See,
e.g., Swallows v. State, 31 N.E.3d 544, 547 (Ind.Ct.App.
2015) (holding defendant sentenced in 1989 had no right to
sentence modification without prosecutor's approval under
2014 version of Ind. Code section 35-38-1-17), trans.
denied, superseded by statutory amendment.
Public Law 164-2015 amended Indiana Code section 35-38-1-17
to explicitly provide the sentencing relief available therein
applied retroactively to "a person who: (1) commits an
offense; or (2) is sentenced; before July 1, 2014." I.C.
§ 35-38-1-17(a) (2015); see also Vazquez v.
State, 37 N.E.3d 962, 964 (Ind.Ct.App. 2015) (discussing
statutory change). Therefore, the statute, as currently
written, applies to Schmitt and he was eligible to petition
the trial court for reduction or suspension of his sentence
twice without the approval of the prosecuting attorney.
See I.C. § 35-38-1-17(j) (2015) (a convicted
person not designated a violent criminal may file a maximum
of two petitions for sentence modification with not more than
one petition in any 365-day period).
The current version of Indiana Code section 35-38-1-17
states, in pertinent part:
(a) Notwithstanding IC 1-1-5.5-21, this section applies to a