David Drummond v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 26, 2015
• Docket: 49A02-1408-CR-577
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 26 2015, 8:11 am Memorandum Decision shall not be regarded as precedent or cited before any 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 David Drummond Gregory F. Zoeller Bunker Hill, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Drummond, June 26, 2015

Appellant-Defendant, Court of Appeals Cause No. 49A02-1408-CR-577 v. Appeal from the Marion Superior State of Indiana, Court The Honorable Stanley Kroh, Appellee-Plaintiff, Magistrate Cause No. 49G03-0108-CF-161376

Robb, Judge.

Case Summary and Issues [1] David Drummond, pro se, appeals the trial court’s denial of his motion for

modification of sentence. He raises several issues for our review, which we

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015 Page 1 of 5 restate and consolidate into two: (1) whether the trial court erred by denying

Drummond’s motion for evaluation, and (2) whether the trial court erred by

denying his motion for modification of sentence. Concluding the trial court did

not err in either respect, we affirm.

Facts and Procedural History [2] Drummond was convicted of child molesting, a Class A felony, and sentenced

to fifty years imprisonment on April 24, 2002.

[3] On July 17, 2014, Drummond filed a Motion for Order for Evaluation and a

Motion for Modification of Sentence. On July 23, 2014, the trial court denied

both motions without a hearing. This appeal followed.

Discussion and Decision I. Standard of Review [4] The decision to deny a defendant’s motion for modification of sentence is

committed to the discretion of the trial court. Hawkins v. State, 951 N.E.2d 597,

599 (Ind. Ct. App. 2011), trans. denied.

[5] There is some dispute between Drummond and the State as to which version of

the sentence modification statute controls. Generally, a defendant is governed

by the sentencing statutes in effect at the time he committed his crime. See

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015 Page 2 of 5 Gutermuth v. State, 868 N.E.2d 427, 431 n.4 (Ind. 2007). We believe the statutes

in effect at the time of Drummond’s crime and sentence are controlling. 1

II. Motion for Evaluation [6] Drummond claims that the trial court erred by denying his motion to order the

Miami Correctional Facility to prepare an evaluation of Drummond. He cites

Indiana Code section 35-38-1-17(a)(3) (2014), claiming that the trial court has

no discretion to deny his motion for a report from the correctional facility. We

note that the statute in effect at the time of Drummond’s crime and sentence

references a report only where a sentence modification occurs within 365 days

after the defendant begins serving his sentence. See Ind. Code § 35-38-1-17(a)(3)

(2002). Regardless, this court has previously held that the trial court may deny

a defendant’s motion for modification of sentence without first reviewing or

obtaining a report from the Department of Correction. See Banks v. State, 847

N.E.2d 1050, 1053 (Ind. Ct. App. 2006), trans. denied. Drummond’s argument

to the contrary is without merit.

III. Sentence Modification [7] Next, Drummond challenges the trial court’s denial of his motion for

modification of sentence and the court’s failure to hold a hearing on that

motion. As to Drummond’s entitlement to a hearing, it is well-established that

1 Even if Drummond were correct that the 2014 sentence modification statute applied, his claims would still fail under that version of the statute.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015 Page 3 of 5 Indiana Code section 35-38-1-17’s requirement for a hearing is triggered only

after the trial court has made a preliminary determination to suspend or reduce

a defendant’s sentence. See Robinett v. State, 798 N.E.2d 537, 539 (Ind. Ct. App.

2003) (citing Reichard v. State, 510 N.E.2d 163, 167 (Ind. 1987)), trans. denied.

Because the trial court made a preliminary decision to deny Drummond’s

motion, a hearing was not required. See id.2

[8] Drummond also contends that the circumstances favor a modification of his

sentence, claiming that he has demonstrated his rehabilitation since the time of

his imprisonment. “[T]he mere fact that the process of rehabilitation, the

purpose of incarceration, may have started, does not compel a reduction or

other modification in [a defendant’s] sentence.” Marshall v. State, 563 N.E.2d

1341, 1343-44 (Ind. Ct. App. 1990), trans. denied; accord Catt v. State, 749 N.E.2d

633, 643-44 (Ind. Ct. App. 2001), trans. denied. Drummond’s appealed order

indicates that the trial court reviewed the record and his motion before denying

the request for a sentence modification. The trial court has discretion to do so,

and we are not in a position to disregard it.

2 Drummond claims that he is entitled to a hearing under our supreme court’s decision in Pannarale v. State, 638 N.E.2d 1247 (Ind. 1994). That decision does not even contain the word “hearing,” let alone hold that one is necessary before denying a motion for sentence modification.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015 Page 4 of 5 Conclusion [9] Concluding the trial court did not abuse its discretion by denying Drummond’s

motion for evaluation or his motion for sentence modification, we affirm.

[10] Affirmed.

May, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-577 | June 26, 2015 Page 5 of 5