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Schmitt v. State

Court of Appeals of Indiana

September 10, 2018

Jeremy Schmitt, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal 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 Indianapolis, Indiana

          May, Judge.

         [¶1] Jeremy Schmitt, pro se, appeals the denial of his petition to modify sentence. We reverse and remand.

         Facts and Procedural History

         [¶2] On April 28, 2004, the State charged Schmitt with murder[1] and Class A felony conspiracy to commit murder.[2] 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.), trans. denied.

         [¶3] 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. denied.

         [¶4] 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.

         [¶5] 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.[3] The trial court denied the petition, stating:

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.)

         Discussion and Decision

         [¶6] 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 denied.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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).

         [¶10] 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 ...

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