Nathan D. Russell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 5, 2017
• Docket: 49A02-1704-CR-775
• Status: Published

Opinion

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 Sep 05 2017, 6:29 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 Nathan D. Russell Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nathan D. Russell, September 5, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1704-CR-775 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1201-FA-3252

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017 Page 1 of 5 Case Summary [1] Nathan D. Russell (“Russell”) appeals the dismissal of his sentence

modification petition based upon a lack of statutory compliance. Russell

presents a sole issue for review: whether the trial court misinterpreted the

statute governing sentence reductions, Indiana Code Section 35-38-1-17, to

require a prosecutor’s consent.1 We affirm.

Facts and Procedural History [2] On July 9, 2012, Russell and the State executed a plea agreement whereby

Russell agreed to plead guilty to Dealing in Cocaine or a Narcotic Drug, as a

Class A felony,2 and Possession of a Firearm by a Serious Violent Felon, as a

Class B felony.3 The trial court entered judgments of conviction and imposed

an aggregate sentence of thirty years, with ten years suspended to probation.

[3] On March 15, 2017, Russell filed a motion for sentence modification, which

was summarily dismissed by the trial court. This appeal ensued.

1 When required, prosecutorial consent to a sentence modification is a procedural condition precedent to the court’s exercise of authority. Woodford v. State, 58 N.E.3d 282, 283 n. 4 (Ind. Ct. App. 2016). 2 Ind. Code § 35-48-4-1. 3 I.C. § 35-47-4-5.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017 Page 2 of 5 Discussion and Decision [4] The trial court dismissed Russell’s petition with the following language:

The correspondence dated 3-17-17 [Petition for Modification] has been received by the Court but not reviewed as it does not comply with the Indiana Rules of Trial Procedure.

(App. Vol. II, pg. 11.)

[5] It appears that the trial court believed that it lacked authority to entertain

Russell’s petition. No hearing was conducted and the trial court did not state

more specific reasons for the disposition of Russell’s petition. Russell asserts,

and the State agrees, that the trial court interpreted Indiana Code Section 35-38-

1-17 to require prosecutorial consent to Russell’s petition.

[6] To the extent that an issue of statutory interpretation is raised, we observe that

the primary goal in statutory interpretation is to ascertain and give effect to the

legislature’s intent. State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). The

language of the statute is the best evidence of that intent. Id.

[7] Russell argues that, in amending Indiana Code Section 35-38-1-17, “our

legislature eliminated the need for the Prosecuting Attorney’s approval.”

Appellant’s Brief at 3. “Indiana’s sentence modification statute was

substantially amended in 2014 as part of a broad overhaul of the criminal

code.” Woodford v. State, 58 N.E.3d 282, 284-85 (Ind. Ct. App. 2016). This

Court had previously held that the 2014 statute did not apply to offenders

convicted or sentenced before the statute’s effective date. Id. at 285 (citing Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017 Page 3 of 5 Swallows v. State, 31 N.E.3d 544 (Ind. Ct. App. 2015), trans. denied; Hobbs v.

State, 26 N.E.3d 983 (Ind. Ct. App. 2015)). However, in 2015, our General

Assembly clarified that the sentence modification statute “applies to a person

who: (1) commits an offense; or (2) is sentenced before July 1, 2014.” I.C. § 35-

38-1-17(a) (Supp. 2015). As such, the 2015 amendment was intended to cure a

defect or mischief that existed in a prior statute and was remedial. Woodford, 58

N.E.3d at 285.

[8] The sentence modification statute now provides in relevant part:

(e) At any time after:

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

(2) 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 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.

I.C. § 35-38-1-17(e). The 2015 amendment also permits a convicted person

who is not a violent criminal to file two petitions for sentence modification

without first obtaining the consent of the prosecuting attorney. I.C. § 35-38-1-

17(j)(2).

[9] Under this statutory scheme, a person who is classified as a violent criminal is

not relieved of the obligation of obtaining prosecutorial consent for petitions

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017 Page 4 of 5 filed more than one year after sentencing.4 Subsection (d)(14) defines “violent

criminal” for purposes of Indiana Code Section 35-38-1-17 to include “a person

convicted of … Unlawful possession of a firearm by a serious violent felon (IC

35-47-4-5).” Russell is a violent criminal, having been convicted of Possession

of a Firearm by a Serious Violent Felon. Lacking the requisite consent, Russell

did not file a petition upon which relief could be granted. When relief cannot

be afforded under the statute, dismissal is appropriate. See Vazquez v. State, 37

N.E.3d 962, 964 (Ind. Ct. App. 2015).

[10] Affirmed.

Baker, J., and Altice, J., concur.

4 One petition may be filed within 365 days without prosecutorial consent.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-775 | September 5, 2017 Page 5 of 5