Jon Omstead v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 25, 2015
• Docket: 49A04-1412-CR-578
• Status: Published

Opinion

MEMORANDUM DECISION Nov 25 2015, 8:04 am

Pursuant to Ind. Appellate Rule 65(D), this 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Mary K. Zahn Gregory F. Zoeller Tyler D. Helmond Attorney General of Indiana Voyles Zahn & Paul Indianapolis, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jon Omstead, November 25, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1412-CR-578 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant Hawkins, Appellee-Plaintiff. Judge Trial Court Cause No. 49G05-9712-CF-189152

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 1 of 11 [1] Jon Omstead appeals from the denial of his petition for modification of

sentence. Omstead raises one issue, which we revise and restate as whether the

trial court erred in denying his petition. We affirm.

Facts and Procedural History

[2] On December 29, 1997, Omstead and Christopher Nahas entered the home of

Evan Hunter, where Omstead shot Terry Scarborough in the head and Nahas

shot Hunter in the head, and the men died from the gunshot wounds. In

October 1998, Omstead pled guilty to two counts of murder pursuant to a plea

agreement which provided that he would receive concurrent sentences and

would not receive a sentence greater than fifty-five years. On March 12, 1999,

the court sentenced Omstead to concurrent terms of fifty-five years for each of

his murder convictions consistent with the plea agreement.

[3] On October 7, 2014, Omstead filed a Petition for Modification of Sentence. In

his petition, Omstead argued that Ind. Code § 35-38-1-17 (2014) is procedural

and remedial in nature and therefore can and should be applied retroactively.

Omstead argued that he had already served approximately sixteen actual years

of his sentence and that he has shown he is deserving of a sentence

modification. He requested that the court reduce or suspend his sentence by ten

years or, alternatively, order the last ten years be served as an executed sentence

in community corrections. He stated he was eighteen years old at the time of

the incident, that he is a completely changed individual, and that serving the

additional ten years would not serve to further his rehabilitation.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 2 of 11 [4] On October 22, 2014, the State filed an objection to modification stating that,

pursuant to the version of Ind. Code § 35-38-1-17 in effect when Omstead’s

offense was committed, the court lacked the authority to modify his sentence

without the consent of the prosecutor. The State argued that the 2014

amendments to the statute do not apply retroactively and that the court lacked

authority to grant a modification.

[5] On December 3, 2014, the court held a hearing on Omstead’s petition for

modification of sentence. The court found that Omstead was not eligible for

relief and denied his petition.

Discussion

[6] The issue is whether the trial court erred in denying Omstead’s petition for

modification of sentence. We review a trial court’s denial of a petition to

modify a sentence only for abuse of discretion. Swallows v. State, 31 N.E.3d 544

(Ind. Ct. App. 2015) (citing Hobbs v. State, 26 N.E.3d 983, 985 (Ind. Ct. App.

2015) (citing Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010))), trans. denied.

If the ruling rests on a question of law, however, we review the matter de novo.

Id. (citing State v. Holloway, 980 N.E.2d 331, 334 (Ind. Ct. App. 2012)). Matters

of statutory interpretation present pure questions of law. Id. (citing State v.

Brunner, 947 N.E.2d 411, 416 (Ind. 2011) (citing Gardiner, 928 N.E.2d at 196),

reh’g denied).

[7] The first step in interpreting a statute is to determine whether the legislature has

spoken clearly and unambiguously on the point in question. Id. (citing City of

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 3 of 11 Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007)). When a statute is clear and

unambiguous, we need not apply any rules of construction other than to require

that words and phrases be taken in their plain, ordinary, and usual sense. Id.

However, when a statute is susceptible to more than one interpretation, it is

deemed ambiguous and thus open to judicial construction. Id. When faced

with an ambiguous statute, other well-established rules of statutory construction

are applicable. Id. One such rule is that our primary goal of statutory

construction is to determine, give effect to, and implement the intent of the

legislature. Id. To effectuate legislative intent, we read the sections of an act

together in order that no part is rendered meaningless if it can be harmonized

with the remainder of the statute, examine the statute as a whole, and do not

presume that the legislature intended language used in a statute to be applied

illogically or to bring about an unjust or absurd result. Id.

[8] Ind. Code § 35-38-1-17 addresses the reduction or suspension of a sentence.

Prior to July 1, 2014, the statute provided in part:

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-l-17(b) (2012) (emphasis added); see also Ind. Code § 35-38-l-

17(b) (1991) (substantively similar provision permitting the court to reduce or

suspend the sentence “subject to the approval of the prosecuting attorney”).

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 4 of 11 [9] Effective July 1, 2014, the criminal code was subject to a comprehensive

revision pursuant to Pub. L. No. 158-2013 and Pub. L. No. 168-2014. The

sentence modification statute as amended in 2014 provided in relevant part:

If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence, the court may reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing. The court must incorporate its reasons in the record.

Ind. Code § 35-38-l-17(c) (eff. Jul. 1, 2014).

[10] The legislature also enacted a savings clause which provides:

(a) A SECTION of P.L. 158-2013 or P.L. 168-2014 does not affect: (1) penalties incurred; (2) crimes committed; or (3) proceedings begun; before the effective date of that SECTION of P.L. 158-2013 or P.L. 168-2014. Those penalties, crimes, and proceedings continue and shall be imposed or enforced under prior law as if that SECTION of P.L. 158-2013 or P.L. 168-2014 had not been enacted. (b) The general assembly does not intend the doctrine of amelioration (see Viceroy v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any SECTION of P.L. 158-2013 or P.L. 168-2014.

Ind. Code § 1-1-5.5-21 (eff. July 1, 2014).

[11] Omstead maintains that he is entitled to the benefit of the sentence modification

statute as amended in 2014. He argues that the triggering event in determining

whether the statute applies should be the date of filing the petition for

modification and not the date of the offense or the date of sentencing. Omstead

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 5 of 11 further contends that the amended statute is procedural and remedial and thus

applies retroactively to him. He posits that the savings clause does not foreclose

application of the 2014 statute to him because a request for a sentence

modification is not a penalty incurred or a crime committed and the proceeding

here began when he sought modification on October 7, 2014. He also argues

that the goals of the criminal code revision, including favoring simplicity,

promoting rehabilitation of offenders in a community setting, avoiding use of

scarce prison space for nonviolent offenders, and giving trial courts maximum

discretion, support applying the 2014 statute.

[12] The State’s position is that the trial court properly denied Omstead’s petition as

it did not have the authority to modify his sentence under the modification

statute. The State argues that the language of the savings clause is all-

encompassing, that Omstead’s sentence is a penalty incurred prior to July 1,

2014, and that by the plain language of the statute the penalty may not be

affected in any way by any provision of the revised code. The State also

contends that, regardless, the issue is moot because effective May 5, 2015, the

legislature amended Ind. Code § 35-38-1-17 so that defendants who were

sentenced prior to July 1, 2014, and who are not violent criminals may request

a sentence modification.

[13] Generally, “[s]tatutes are to be given prospective effect only, unless the

legislature unequivocally and unambiguously intended retrospective effect as

well.” Johnson v. State, 36 N.E.3d 1130, 1134 (Ind. Ct. App. 2015) (citing State

v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005)), trans. denied. An exception to this

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 6 of 11 general rule exists for remedial or procedural statutes. Id. (citing Martin v. State,

774 N.E.2d 43, 44 (Ind. 2002)). Although statutes and rules that are procedural

or remedial may be applied retroactively, they are not required to be. Id. (citing

Pelley, 828 N.E.2d at 919-920). Even for procedural or remedial statutes,

“retroactive application is the exception, and such laws are normally to be

applied prospectively absent strong and compelling reasons.” Id. (citing Hurst v.

State, 890 N.E.2d 88, 94-96 (Ind. Ct. App. 2008) (quotation omitted), trans.

denied).

[14] In Hobbs v. State, Hobbs was convicted in 2006 for offenses he committed in

2005, and the trial court sentenced him to an aggregate sentence of twenty-three

years. 26 N.E.3d at 984-985. On July 23, 2014, Hobbs filed a petition for

modification of his sentence pursuant to Ind. Code § 35-38-1-17(c) (2014), and

we denied his petition and held that the 2014 version of the statute did not

apply to him. Id. at 985-986. We explained:

[Ind. Code § 35-38-1-17(c)] became effective July 1, 2014, as part of the General Assembly’s overhaul of our criminal code pursuant to P.L. 158-2013 and P.L. 168-2014. It was not in effect at the time Hobbs committed his offense against L.M.; rather, the law in effect at that time stated in relevant part: “If more than three hundred sixty-five (365) days have elapsed since the defendant 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.” I.C. § 35-38-1-17(b) (2005) (emphasis added); see also Harris v. State, 897 N.E.2d 927, 928-929 (Ind. 2008) (“The sentencing statute in effect at the time a crime is committed governs the sentence for that crime.”).

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 7 of 11 Despite Hobbs’ assertions to the contrary on appeal, there is no question that the current version of Indiana Code Section 35-38- 1-17 does not apply to him. I.C. § 1-1-5.5-21 (“The general assembly does not intend the doctrine of amelioration . . . to apply to any SECTION of P.L. 158-2013 or P.L. 168-2014”); see also Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (“It is abundantly clear . . . that the General Assembly intended the new criminal code to have no effect on criminal proceedings for offenses committed prior to the enactment of the new code.”), trans. denied. Hobbs’ arguments to the contrary are without merit.

Id. In subsequent cases, we also cited the savings clause and reached the

conclusion that the 2014 amendment eliminating the requirement of approval

of the prosecutor did not apply retroactively. See Carr v. State, 33 N.E.3d 358,

358-359 (Ind. Ct. App. 2015) (citing the savings clause and Hobbs and

concluding the version of Ind. Code § 35-38-1-17 which became effective July 1,

2014, did not apply where Carr’s crime was committed in 1999), trans. denied;

Swallows, 31 N.E.3d at 545-547 (noting the plain meaning of the savings clause

and the reasoning in Hobbs and concluding that the version of Ind. Code § 35-

38-1-17 which became effective on July 1, 2014, did not apply to Swallows’s

petition to modify a sentence that he began serving in 1989).1

1 But see Moore v. State, 30 N.E.3d 1241, 1245-1250 (Ind. Ct. App. 2015) (concluding in part that the 2014 amendment constituted a procedural change, that the savings clause did not prevent a person convicted prior to July 1, 2014 from bringing his petition under the statute as revised by the 2014 amendment, and that the trial court had the authority to entertain Moore’s petition without the consent of the prosecutor), trans. not sought.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 8 of 11 [15] Additionally, in Johnson v. State, Dennis Johnson and Raymond Johnson,

whose cases were consolidated on appeal, were sentenced in 1997. 36 N.E.3d

at 1131-1132. The Johnsons filed requests for evaluation on December 19,

2013, which the trial court treated as petitions for sentence modifications, and

the court held a hearing in August 2014 at which the Johnsons noted that the

modification statute had changed on July 1, 2014. Id. at 1132. The trial court

denied the Johnsons’ request. Id. On appeal, the Johnsons argued that the

2014 amendment to the modification statute was remedial and procedural and

should be applied retroactively to their petitions despite the savings clause. Id.

at 1133. As to whether the 2014 amendment was remedial, we observed that

Indiana courts consistently held that once the limited amount of time granted

by the statute passed, the trial court was without authority to reduce or suspend

a sentence unless the prosecutor consented. We also noted that there is no

indication that the requirement of prosecutorial consent was an error, and that

the legislature enacted the prosecutorial consent provision of the modification

statute in 1991 and did not eliminate it for over twenty years, during which time

our legislature amended the statute in other ways. We thus concluded that the

2014 amendment to Ind. Code § 35-38-1-17(b) was not remedial. Id. at 1134-

1135. As to whether the 2014 amendment was procedural, we observed that, at

the time the Johnsons were sentenced, the statute gave the trial court authority

to reduce or suspend a sentence in its discretion within 365 days, after which

the trial court lacked authority to alter a sentence unless the prosecutor

consented, and that, “[b]y eliminating the requirement of prosecutorial consent

in the 2014 version of the statute, the legislature gave the trial court additional Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 9 of 11 authority it did not previously have—the authority to unilaterally alter a

defendant’s sentence after the expiration of 365 days.” Id. at 1135-1136. We

concluded that the 2014 amendment to Ind. Code § 35-38-1-17(b) constituted a

substantive and not a procedural change and affirmed the trial court’s denial of

the petitions for sentence modification. Id. at 1136-1138.2

[16] Based on Hobbs and Johnson, and given the language of the savings clause found

at Ind. Code § 1-1-5.5-21 (2014), and that the 2014 amendment was not

remedial or procedural, we conclude that the version of Ind. Code § 35-38-1-17

which became effective July 1, 2014, does not apply to Omstead’s petition for

modification of sentence. The trial court did not err in denying his petition.3

Conclusion

[17] For the foregoing reasons, we affirm the trial court’s denial of Omstead’s

petition for modification of sentence.

2 Following this court’s opinion, the Johnsons filed a petition to transfer. The Indiana Supreme Court held oral argument and issued an order denying the Johnsons’ petition to transfer on the same day, leaving this court’s opinion undisturbed. 3 We also note that, after the trial court denied Omstead’s petition, Ind. Code § 35-38-1-17 was amended again. The most recent amendment became effective on May 5, 2015, and is not applicable to this case. Nevertheless, we note that the 2015 version of the statute includes a provision that, notwithstanding the savings clause found at Ind. Code § 1-1-5.5-21, the provisions of Ind. Code § 35-38-1-17 are applicable to a person who committed an offense or was sentenced before July 1, 2014. Ind. Code § 35-38-l-17(a) (2015). However, the 2015 version also provides that, except as provided in subsections (k) and (m), Ind. Code § 35- 38-l-17 does not apply to a “violent criminal,” and a violent criminal is defined to include a person convicted of murder. Ind. Code § 35-38-l-17(c), (d)(1) (2015). Ind. Code § 35-38-1-17(k) (eff. May 5, 2015) provides that, “[a]fter the elapse of the three hundred sixty-five (365) day period, a violent criminal may not file a petition for sentence modification without the consent of the prosecuting attorney.” Thus, Omstead would not be entitled to file a petition for modification of his sentence under the 2015 version of the modification statute without prosecutorial consent.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 10 of 11 [18] Affirmed.

Riley, J., and Friedlander, Sr. J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-578 | November 25, 2015 Page 11 of 11