Hawkins v. State

951 N.E.2d 597, 2011 Ind. App. LEXIS 1319, 2011 WL 2791071

• Court: Indiana Court of Appeals
• Decided: July 18, 2011
• Docket: 79A02-1101-CR-100
• Status: Published

Opinions

OPINION

CRONE, Judge.

Case Summary

Nathan Hawkins was originally sentenced to sixteen years for two counts of child molesting. After a successful appeal, Hawkins’s sentence was reduced to ten years. Thereafter, Hawkins sought a sentence modification, which the prosecutor opposed and the trial court denied. The parties dispute whether the 365-day period during which the trial court has sole discretion to grant a modification began when Hawkins was originally sentenced or when he was resentenced. We conclude that the resentencing did not restart the 365-day period. Because Hawkins’s motion was filed outside the 365-day period and the prosecutor did not consent to a modification, the trial court properly denied the modification.

Facts and Procedural History

On January 2, 2009, Hawkins was charged with five counts of class C felony child molesting. On April 29, 2009, he entered a plea agreement in which he agreed to plead guilty to two counts of child molesting, and the State agreed to dismiss the three remaining counts. Sentencing was left to the trial court’s discretion, and on July 2, 2009, the trial court imposed an aggregate sentence of sixteen years with one year suspended.

On appeal, Hawkins argued that his sentence was inappropriate in light of his character and the nature of his offenses and sought a reduced sentence pursuant to Indiana Appellate Rule 7(B). We agreed: “We therefore vacate Hawkins’s sentence and remand with instructions to reduce each sentence to five years executed, to be served consecutively. The trial court need not hold a new sentencing hearing on remand.” Hawkins v. State, No. 79A05-0912-CR-701, 2010 WL 841338 at *3 (Ind.Ct.App. Mar. 11, 2010).

On April 15, 2010, the trial court entered an amended sentencing order in accordance with our decision. On August 20, 2010, the trial court issued an order clarifying that all ten years would be executed and that there would be no term of probation.

Hawkins filed a motion to modify his sentence on November 16, 2010. The State filed a response stating that more than a year had passed since Hawkins started serving his sentence and that the prosecutor would not approve any modification of Hawkins’s sentence. Hawkins filed a reply arguing that the one-year period should commence from the date that the amended sentencing order was issued. The trial court denied Hawkins’s motion: “The Court having considered defendant’s Motion for Modification, the State’s Response thereto and the defendant’s Response, together with the Department of Correction Progress Report, now denies defendant’s Motion finding that the sentence was appropriate.” Appellant’s App. at 12. Hawkins now appeals.

Discussion and Decision

“After issuing 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). Indiana Code Section 35-38-1-17 authorizes trial courts to modify sentences under the following circumstances:

(a) Within three hundred sixty-five (365) days after:

(1) a convicted person begins serving the person’s sentence;

(2) a hearing is held:

(A) at which the convicted person is present; and

(B) of which the prosecuting attorney has been notified; and

(3) the court obtains a report from the department of correction concerning the convicted person’s conduct while imprisoned;

the court may reduce or suspend the sentence. The court must incorporate its reasons in the record.

(b) If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney....

Ind.Code § 35-38-1-17.

If a motion is made within the 365-day period, modification of the sentence is committed to the discretion of the trial court. Catt v. State, 749 N.E.2d 633, 643 (Ind.Ct.App.2001), trans. denied. Likewise, if the motion is made outside the 365-day period, but the prosecutor acquiesces in the motion, the decision to grant or deny the motion is within the trial court’s discretion. Porter, 729 N.E.2d at 592-93. On the other hand, if the motion is made outside the 365-day period and the prosecutor opposes the motion for sen-fence modification, the trial court lacks authority to modify the sentence. Id. at 593.

The parties make the same arguments on appeal as they did to the trial court: Hawkins contends that the 365-day period began when the revised sentencing order was entered, while the State maintains that the 365-day period began when Hawkins was originally sentenced.¹ The State also argues that our opinion on direct appeal left the trial court with no choice but to enter a ten-year sentence and did not allow for the trial court to further reduce the sentence pursuant to Indiana Code Section 35-38-1-17. The parties have not located any decisions directly supporting their arguments, and it appears that we have not squarely addressed these issues before.

We disagree with the State’s contention that sentence review pursuant to Indiana Appellate Rule 7(B) and sentence modifications pursuant to Indiana Code Section 35-38-1-17 are mutually exclusive remedies. Sentence review on direct appeal pursuant to Indiana Appellate Rule 7(B) addresses whether the sentence is inappropriate in light of the facts available at the time of sentencing. A sentence modification, on the other hand, allows the trial court to take into account additional circumstances, such as the defendant’s good behavior while imprisoned, that might merit the reduction or suspension of his sentence. See Ind.Code § 35-38-l-17(a)(3). Thus, we conclude that these are separate avenues of relief, and the defendant is not required to elect one or the other. The fact that Hawkins successfully challenged his sentence on direct appeal does not preclude him from seeking a sentence modification.

One way that a defendant might pursue both remedies is to request a stay of the appeal to allow the trial court to consider the motion for sentence modification. See Ind. Appellate Rule 37 (governing motions to remand).² By not requesting a stay, Hawkins took the risk that the 365-day window would close before his appeal was complete. It so happened that Hawkins had a few months after his direct appeal was complete in which he could have filed for a sentence modification. However, he waited until November 16, 2010, which was more than a year after he was first sentenced.

We conclude that Hawkins’s resentenc-ing did not restart the clock. In Redmond v. State, we held that the 365-day period began at the time of sentencing for all consecutive sentences imposed at the same time; there was not a new 365-day period each time the defendant began serving each individual sentence. 900 N.E.2d 40, 42-43 (Ind.Ct.App.2009), tram, denied. In Redmond, we relied on the fact that the version of the statute in effect at the time stated that the 365-day period starts when a convicted person begins serving the sentence imposed on the person. See id. (noting the 2005 amendment to Ind. Code § 35-38-1-17). In 2010, that language was removed from the statute; it now states that the 365-day period begins when “a convicted person begins serving the person’s sentence.” Ind.Code § 35-38-l-17(a)(l) (as amended by Pub.L. No. 1-2010, § 141) (emphasis added). Hawkins has been serving his sentence since it was originally imposed; the fact that a revised sentence was later imposed has no bearing on the time calculation.

Not allowing the clock to restart after resentencing also “furthers the State’s legitimate interest in the finality of judgments and an ordered procedure for the modification of sentences.” Redmond, 900 N.E.2d at 43. Otherwise, the 365-day window could be held open for a potentially lengthy period while the defendant pursues a direct appeal; however, we have characterized Indiana Code Section 35-38-1-17 as a “limited exception” to the rule that trial courts generally do not retain jurisdiction after they pronounce sentences. Sanders v. State, 638 N.E.2d 840, 841 (Ind.Ct.App.1994). The stay procedure provided by Appellate Rule 37 better promotes judicial economy.

Because Hawkins’s motion was filed more than 365 days after he began serving his sentence and the prosecutor opposed his motion, the trial court had no authority to grant the motion. Therefore, the judgment of the trial court is affirmed.

Affirmed.

NAJAM, J., concurs. ROBB, C.J., dissents with separate opinion.

1 . The record before us is not clear whether Hawkins was incarcerated prior to sentencing. Both parties appear to assume that the 365-day period began no earlier than the date that Hawkins was originally sentenced. Indiana Code Section 35-38-1-17 refers to the date that the convicted person began serving the person’s sentence, but does not explicitly address pre-sentence incarceration. We note that it could be problematic to include pre-sentence incarceration, as the 365-day window could lapse before the defendant is even sentenced. If the defendant has been incarcerated for a significant period of time prior to sentencing, including pre-sentence incarceration would also defeat the apparent purpose of Indiana Code Section 35-38-1-17, which is to allow the trial court to revisit the sentence after the defendant has had time to demonstrate good behavior or other circumstances not available at the time of sentencing.

2 . Indiana Appellate Rule 37 provides:

A. Content of Motion. At any time after the Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to die trial court or Administrative Agency for further proceedings. The motion must be verified and demonstrate that remand will promote judicial economy or is otherwise necessary for the administration of justice.

B. Effect of Remand. The Court on Appeal may dismiss the appeal without prejudice, and remand the case to the trial court, or remand the case while retaining jurisdiction, with or without limitation on the trial court’s authority. Unless the order specifically provides otherwise, the trial court or Administrative Agency shall obtain unlimited authority on remand.