MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 29 2019, 7:48 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Gary Amick Curtis T. Hill, Jr. Branchville, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary Amick, March 29, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-CR-2371 v. Appeal from the Scott Circuit Court State of Indiana, The Honorable Roger L. Duvall, Appellee-Respondent. Judge Trial Court Cause No. 72C01-1512-F5-63
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 1 of 8 Case Summary [1] Pro-se Appellant Gary Amick (“Amick”), who is incarcerated in the Indiana
Department of Correction (“the DOC”), appeals the denial of his “Verified
Petition for Examination for Treatment.”1 Amick presents the sole issue of
whether the trial court erred in deferring to the DOC upon Amick’s claim that
he was eligible for a post-conviction substance abuse examination. We affirm.
Facts and Procedural History [2] On August 1, 2016, Amick pled guilty to a Level 5 felony possession of a
handgun without a license under cause number 72C01-1512-F5-63 and a Class
C felony dealing in a scheduled IV controlled substance under cause number
72C01-1405-FA-7. Pursuant to Amick’s plea agreement with the State, twelve
other counts against Amick were dismissed, a petition to revoke a suspended
sentence in another case was dismissed, and Amick received two consecutive
sentences of four years. The plea agreement provided that the fixed terms were
to be fully executed in the DOC.
[3] At the sentencing hearing on September 12, 2016, Amick’s counsel requested a
recommendation to the DOC that Amick be allowed to participate in a
purposeful incarceration program. The prosecutor responded that the State was
not specifically agreeing to a sentence modification that would be contingent
1 See App. Vol. II, pg. 23.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 2 of 8 upon completion of the purposeful incarceration program, but continued, “I
guess if we could maybe put it at the end of his sentence.” (Tr. Vol. II, pg. 15.)
The trial court advised Amick that, after Amick served eighteen months, the
trial court would request a progress report from the DOC, and “if things look
good from participation up there, then I can make the modification, put on the
order saying you can participate in purposeful incarceration.” Id. at 16.
[4] On October 14, 2016, Amick filed a motion requesting that the trial court
recommend purposeful incarceration. On May 23, 2017, the trial court
received and reviewed a progress report from the DOC. At that time, Amick
had begun participation in a therapeutic community program and the trial court
made an entry into the Chronological Case Summary (“CCS”) indicating “it is
in Defendant’s best interest to complete that program before consideration of a
modification of sentence.” (App. Vol. II, pg. 11.)
[5] On January 15, 2018, Amick filed a notice of completion of his therapeutic
community program, a “motion for order of evaluation,” a motion for court
ordered evaluation, and a motion for modification of sentence. Id. at 13 – 14.
On January 23, 2018, the trial court issued an order granting the motion for a
court-ordered evaluation.2 On February 16, 2018, after the State filed its
2 The CCS does not specify the legal authority upon which the order is based or the scope of the court- ordered evaluation. It is not evident from the record that the evaluation was in fact conducted.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 3 of 8 response, the trial court denied Amick’s petition for sentence modification.
Amick appealed. A panel of this Court affirmed the denial, concluding:
The plea agreement that Amick and the State agreed to, and the trial court accepted, provided for a fixed sentence of eight years. No other sentence was authorized by the plea agreement. Therefore, the trial court could not modify Amick’s sentence because the eight-year sentence was the only one it was authorized to impose.
Amick v. State, No. 18A-CR-1027, slip op. at 2 (Ind. Ct. App. Nov. 8, 2018).
Amick petitioned for transfer to the Indiana Supreme Court, and that petition is
pending.3
[6] Before the appellate opinion was handed down, Amick filed a series of motions
in the trial court. On August 20, 2018, he filed a “Verified Petition for
Placement in the Post-Conviction Forensic Diversion Program – Stay of
Execution of Sentence.” (App. Vol. II, pg. 20.) The motion was summarily
denied, as was Amick’s motion to reconsider. On September 11, 2018, Amick
filed his “Motion for Evaluation and Placement into Addiction Treatment.” Id.
at 21. On September 17, 2018, Amick filed his “Verified Petition for
Examination for Treatment.” Id. The trial court denied the motion, making
the following CCS entry:
3 On February 25, 2019, the Indiana Supreme Court granted Amick’s motion to allow the filing of a belated petition to transfer.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 4 of 8 Defendant having filed his Petition for Examination for Treatment, Court now denies Defendant’s Petition and finds that Treatment and program issues should be the decision of the Department of Corrections at this time.
Id. Amick now appeals.
Discussion and Decision [7] As a threshold matter, we address the State’s request that Amick’s appeal be
dismissed on res judicata grounds. “An issue which previously has been raised
and determined adverse to the appellant’s position is res judicata.” Arthur v.
State, 663 N.E.2d 529, 531 (Ind. 1996). The State asserts that, regardless of
how Amick described the motion addressed by the order now on appeal, his
ultimate intent is to secure a sentence modification. Amick’s petition to the
trial court included the following prayer for relief:
Defendant, pro-se, hereby respectfully requests this Court to find him eligible for treatment, grant his request for treatment, certify to the Division of Mental Health that he may request treatment, order his examination by the Division pursuant to I.C. 12-23-7-3, and for all other relief just and proper in the premises.
(App. Vol. II, pg. 25.) The trial court’s order solely addressed the request for an
examination, finding that decision to be within the purview of the DOC. To
the extent that Amick argues on appeal that he is entitled to a change of
placement, we do not address the matter, as his claim that he should have
received sentence modification is pending in another court. We consider only
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 5 of 8 whether Amick was entitled to have the trial court order his examination by the
Division of Mental Health and Addiction (“the Division”). See Ind. Code § 12-
21-1-1.
[8] In his pro-se motion, Amick requested that the trial court order his examination
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 29 2019, 7:48 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Gary Amick Curtis T. Hill, Jr. Branchville, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary Amick, March 29, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-CR-2371 v. Appeal from the Scott Circuit Court State of Indiana, The Honorable Roger L. Duvall, Appellee-Respondent. Judge Trial Court Cause No. 72C01-1512-F5-63
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 1 of 8 Case Summary [1] Pro-se Appellant Gary Amick (“Amick”), who is incarcerated in the Indiana
Department of Correction (“the DOC”), appeals the denial of his “Verified
Petition for Examination for Treatment.”1 Amick presents the sole issue of
whether the trial court erred in deferring to the DOC upon Amick’s claim that
he was eligible for a post-conviction substance abuse examination. We affirm.
Facts and Procedural History [2] On August 1, 2016, Amick pled guilty to a Level 5 felony possession of a
handgun without a license under cause number 72C01-1512-F5-63 and a Class
C felony dealing in a scheduled IV controlled substance under cause number
72C01-1405-FA-7. Pursuant to Amick’s plea agreement with the State, twelve
other counts against Amick were dismissed, a petition to revoke a suspended
sentence in another case was dismissed, and Amick received two consecutive
sentences of four years. The plea agreement provided that the fixed terms were
to be fully executed in the DOC.
[3] At the sentencing hearing on September 12, 2016, Amick’s counsel requested a
recommendation to the DOC that Amick be allowed to participate in a
purposeful incarceration program. The prosecutor responded that the State was
not specifically agreeing to a sentence modification that would be contingent
1 See App. Vol. II, pg. 23.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 2 of 8 upon completion of the purposeful incarceration program, but continued, “I
guess if we could maybe put it at the end of his sentence.” (Tr. Vol. II, pg. 15.)
The trial court advised Amick that, after Amick served eighteen months, the
trial court would request a progress report from the DOC, and “if things look
good from participation up there, then I can make the modification, put on the
order saying you can participate in purposeful incarceration.” Id. at 16.
[4] On October 14, 2016, Amick filed a motion requesting that the trial court
recommend purposeful incarceration. On May 23, 2017, the trial court
received and reviewed a progress report from the DOC. At that time, Amick
had begun participation in a therapeutic community program and the trial court
made an entry into the Chronological Case Summary (“CCS”) indicating “it is
in Defendant’s best interest to complete that program before consideration of a
modification of sentence.” (App. Vol. II, pg. 11.)
[5] On January 15, 2018, Amick filed a notice of completion of his therapeutic
community program, a “motion for order of evaluation,” a motion for court
ordered evaluation, and a motion for modification of sentence. Id. at 13 – 14.
On January 23, 2018, the trial court issued an order granting the motion for a
court-ordered evaluation.2 On February 16, 2018, after the State filed its
2 The CCS does not specify the legal authority upon which the order is based or the scope of the court- ordered evaluation. It is not evident from the record that the evaluation was in fact conducted.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 3 of 8 response, the trial court denied Amick’s petition for sentence modification.
Amick appealed. A panel of this Court affirmed the denial, concluding:
The plea agreement that Amick and the State agreed to, and the trial court accepted, provided for a fixed sentence of eight years. No other sentence was authorized by the plea agreement. Therefore, the trial court could not modify Amick’s sentence because the eight-year sentence was the only one it was authorized to impose.
Amick v. State, No. 18A-CR-1027, slip op. at 2 (Ind. Ct. App. Nov. 8, 2018).
Amick petitioned for transfer to the Indiana Supreme Court, and that petition is
pending.3
[6] Before the appellate opinion was handed down, Amick filed a series of motions
in the trial court. On August 20, 2018, he filed a “Verified Petition for
Placement in the Post-Conviction Forensic Diversion Program – Stay of
Execution of Sentence.” (App. Vol. II, pg. 20.) The motion was summarily
denied, as was Amick’s motion to reconsider. On September 11, 2018, Amick
filed his “Motion for Evaluation and Placement into Addiction Treatment.” Id.
at 21. On September 17, 2018, Amick filed his “Verified Petition for
Examination for Treatment.” Id. The trial court denied the motion, making
the following CCS entry:
3 On February 25, 2019, the Indiana Supreme Court granted Amick’s motion to allow the filing of a belated petition to transfer.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 4 of 8 Defendant having filed his Petition for Examination for Treatment, Court now denies Defendant’s Petition and finds that Treatment and program issues should be the decision of the Department of Corrections at this time.
Id. Amick now appeals.
Discussion and Decision [7] As a threshold matter, we address the State’s request that Amick’s appeal be
dismissed on res judicata grounds. “An issue which previously has been raised
and determined adverse to the appellant’s position is res judicata.” Arthur v.
State, 663 N.E.2d 529, 531 (Ind. 1996). The State asserts that, regardless of
how Amick described the motion addressed by the order now on appeal, his
ultimate intent is to secure a sentence modification. Amick’s petition to the
trial court included the following prayer for relief:
Defendant, pro-se, hereby respectfully requests this Court to find him eligible for treatment, grant his request for treatment, certify to the Division of Mental Health that he may request treatment, order his examination by the Division pursuant to I.C. 12-23-7-3, and for all other relief just and proper in the premises.
(App. Vol. II, pg. 25.) The trial court’s order solely addressed the request for an
examination, finding that decision to be within the purview of the DOC. To
the extent that Amick argues on appeal that he is entitled to a change of
placement, we do not address the matter, as his claim that he should have
received sentence modification is pending in another court. We consider only
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 5 of 8 whether Amick was entitled to have the trial court order his examination by the
Division of Mental Health and Addiction (“the Division”). See Ind. Code § 12-
21-1-1.
[8] In his pro-se motion, Amick requested that the trial court order his examination
“pursuant to Indiana Code 12-23-6.1-1, 12-23-8.1-(1) (2) (3), & 12-23-10.1-(1)
(2) & (3).” (App. Vol. II, pg. 23.) On appeal, Amick does not address Indiana
Code Section 12-23-10.1, which permits “an individual who believes the
[defendant] is a drug abuser” to request treatment. He presents cursory
arguments as to the other statutory provisions.
[9] Indiana Code Section 12-23-6.1-1, captioned “Request for treatment in lieu of
prosecution or imprisonment,” permits a convicted felon who is a drug abuser
to request treatment under the supervision of the Division, unless certain
conditions exist (such as the offense is a forcible felony, or the person was
admitted to a specified treatment program on two or more occasions within the
preceding two years). On appeal, Amick develops no argument beyond
asserting that he has an addiction issue and is not subject to one of the
exclusionary conditions.
[10] Amick also claims that he “meets the criteria set forth under Indiana Code 12-
23-8.1-3.” Appellant’s Brief at 8. According to Amick, he “clearly has an
addiction issue that needs to be addressed” and “[u]nder Title 12, the legislative
body has provided the Courts an avenue to allow treatment even after a
conviction has been deemed.” Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 6 of 8 [11] Indiana Code Section 12-23-8.1-3, part of a chapter captioned “Treatment and
Probation Following Criminal Convictions,” provides:
If an individual requests to undergo treatment or is certified for treatment, the court may order an examination by the division to determine whether the individual is a drug user or an alcoholic and is likely to be rehabilitated through treatment.
Indiana Code Section 12-23-8.1-4 provides:
The court may deny the request if after conducting a presentence investigation the court finds that the individual would not qualify under criteria of the court to be released on probation.
[12] A trial court generally has no authority over a defendant after sentencing. State
v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). After issuing a sentencing order,
which is a final judgment, a trial court retains only such continuing jurisdiction
as permitted by the judgment or granted to the court by statute or rule. State v.
Porter, 729 N.E.2d 591, 592 (Ind. Ct. App. 2000). Instead, after a sentence is
pronounced, jurisdiction over the defendant goes to the DOC. Dier v. State, 524
N.E.2d 789, 790 (Ind. 1988).
[13] To the extent that Amick claims Indiana Code Sections 12-23-6.1-1 and 12-23-
8.1-3 confer continuing jurisdiction upon the trial court, we observe that
“statutory interpretation is a question of law and determinations in that regard
are subject to de novo appellate review.” Higgins v. State, 855 N.E.2d 338, 341
(Ind. Ct. App. 2006). Our primary goal is to ascertain the legislature’s intent
and we look first to the statutory language itself and give effect to the plain and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 7 of 8 ordinary meaning of the terms. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind.
2016). “[W]e will not read into the statute that which is not the expressed
intent of the legislature. As such, it is just as important to recognize what the
statute does not say as it is to recognize what it does say.” N.D.F. v. State, 775
N.E.2d 1085, 1088 (Ind. 2002) (citation omitted).
[14] In context, the statutes identified by Amick provide options to the trial court
after a defendant has been convicted but before a sentence is imposed. The
language employed does not include a mandatory term such as “shall.” Nor is
there language suggesting applicability post-sentence. Although the Legislature
can permit retention of continuing jurisdiction in a specific area, see Indiana
Code Section 35-38-1-17 (the sentence modification statute), there is no
language suggesting that it chose to do so with respect to post-sentencing
physical or mental examinations. The trial court did not err in concluding that
the decision whether to so examine Amick is within the province of the DOC.
[15] Affirmed.
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 8 of 8