Marshaun Bugg v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 6, 2019
• Docket: 18A-CR-2890
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 06 2019, 11:05 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Marshaun Bugg Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana

Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marshaun Bugg, May 6, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2890 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt M. Eisgruber, Appellee-Plaintiff. Judge Trial Court Cause No. 49G01-0202-MR-59298

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2890 | May 6, 2019 Page 1 of 4 Statement of the Case [1] Marshaun Bugg1 appeals the trial court’s denial of his motion to modify his

sentence to placement in a community corrections program. Bugg raises two

issues for our review, which we restate as whether the trial court erred when it

denied Bugg’s motion. 2 We affirm.

Facts and Procedural History [2] On July 7, 2006, the trial court sentenced Bugg to sixty-five years in the

Department of Correction following his conviction for murder. On November

7, 2018, Bugg filed a “motion for alternative placement” with the trial court.

Appellant’s App. Vol. 2 at 16. In that motion, Bugg stated that he “does not

wish the Court to construe this Motion as a ‘Motion for Modification of

Sentence’[;] Sentence Length to remain at present time and only alternative

placement is to be considered herein.” Id. Bugg did not obtain the prosecuting

attorney’s consent to his request for alternative placement. The trial court

denied Bugg’s motion the same day. This appeal ensued.

1 There is confusion in the record over the spelling of Bugg’s name. We follow the spelling Bugg uses in his own signature. 2 Bugg’s purported issue that the trial court clerk somehow interfered with his motion because “DENIED” was later stamped on that motion is not supported by cogent reasoning, and we do not consider it. See Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2890 | May 6, 2019 Page 2 of 4 Discussion and Decision [3] On appeal, Bugg asserts that the trial court erred when it denied his motion to

modify his placement. In general, we review a trial court’s decision regarding

modification of a sentence for an abuse of discretion. Johnson v. State, 36

N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion

occurs when the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before the court or when the court misinterprets the

law. Id. However, where, as here, the question on appeal involves the

interpretation of certain statutes, our review is de novo. Id.

[4] Bugg’s request in his motion to the trial court notwithstanding, the trial court

treated his motion as a motion for modification of sentence under Indiana Code

Section 35-38-1-17. That statute states that a defendant who, like Bugg, has

been convicted of murder (among other offenses) “may, . . . [a]fter the elapse of

[a] three hundred sixty-five (365) day period” from the date of his sentencing,

“file a petition for sentence modification” only if “the consent of the

prosecuting attorney” is given. Ind. Code § 35-38-1-17(k) (2018). Our case law

is clear that a request for a change in placement is a request for a “sentence

modification” under that statute. Keys v. State, 746 N.E.2d 405, 407 (Ind. Ct.

App. 2001). And the record is clear here that Bugg did not obtain the consent

of the prosecuting attorney when he made his request for a change in

placement. Accordingly, the trial court properly denied Bugg’s motion.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2890 | May 6, 2019 Page 3 of 4 [5] Nonetheless, Bugg argues that the trial court applied the wrong statute to his

motion to modify his placement. In particular, Bugg asserts that the trial court

should have treated his motion as a request under Indiana Code Chapter 35-38-

2.6, which applies to the direct placement of a defendant to a community

corrections program at the time of sentencing. But we have long recognized

that Chapter 35-38-2.6 “merely authorizes the trial court to suspend a sentence

and place a defendant in a community corrections program at the time of

sentencing . . . . [I]t does not allow the trial court to modify placement after

sentencing.” Id. In other words, Indiana Code Chapter 35-38-2.6 did not apply

to Bugg’s motion for modification of placement. Id.; see also I.C. § 35-38-2.6-

3(a) (“The court may, at the time of sentencing, suspend the sentence and order a

person to be placed in a community corrections program . . . .”) (emphasis

added). Accordingly, Bugg’s assertion that the trial court erred when it denied

his motion for modification of placement fails as a matter of law, and we affirm

the trial court’s judgment.

[6] Affirmed.

Baker, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2890 | May 6, 2019 Page 4 of 4