Richard Dodd v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 27, 2017
• Docket: 71A03-1706-CR-1211
• Status: Published

Opinion

MEMORANDUM DECISION FILED Sep 27 2017, 11:19 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Richard Dodd Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana

Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Richard Dodd, September 27, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1706-CR-1211 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff Hurley, Judge Trial Court Cause No. 71D02-9712-CF-550

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017 Page 1 of 4 [1] Richard Dodd appeals from the trial court’s order denying his motion to modify

his sentence. On appeal, he argues that the trial court erred in concluding that

the State’s consent to the filing was required.

[2] We affirm.

Facts & Procedural History

[3] In 1998, Richard Dodd was convicted of attempted murder and burglary. He

received consecutive sentences of fifty and eight years, respectively. His

convictions were affirmed on direct appeal and our Supreme Court denied

transfer. Thereafter, Dodd filed various petitions for post-conviction relief and

motions regarding his sentence. In 2013, the post-conviction court found that

the consecutive sentences imposed exceeded the maximum permitted for an

episode of criminal conduct and resentenced Dodd to fifty years for attempted

murder and a consecutive term of five years for burglary.

[4] In 2016, Dodd filed the current motion to modify his sentence. The State

objected and, after a change of judge, the trial court issued a written order

denying the motion because the State had not consented to the filing. Dodd

now appeals.

Discussion & Decision

[5] Dodd argues that the trial court erred in concluding that the State’s consent to

the filing of the motion to modify was required. This court reviews a trial

court’s decision on a motion to modify a sentence for an abuse of discretion. Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017 Page 2 of 4 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. The issue presented here is one of statutory

interpretation, which is a question of law. See id. When presented with a pure

question of law, we review the matter de novo. Id.

[6] The sentence modification statute in effect at the time Dodd was sentenced

provided that if more than 365 days had elapsed since the defendant began

serving his or her sentence, the court was permitted to reduce or suspend the

sentence only with the approval of the prosecuting attorney. See Ind. Code §

35-38-1-17 (West 1992). In 2014, the modification statute was amended to

allow nonviolent offenders to twice pursue sentence modification without the

prosecuting attorney’s consent. Ind. Code § 35-38-1-17(j). Individuals

classified as “violent criminals,” however, are still required to obtain the

consent of the prosecuting attorney if the motion to modify is filed more than

365 days from the date of sentencing. I.C. § 35-38-1-17(k). The statute defines

“violent criminal” to include individuals convicted of attempted murder. I.C. §

35-38-1-17(d). In 2015, the legislature again amended the statute to clarify that

the amended modification statute applies to individuals who, like Dodd,

committed their crimes or were sentenced prior to July 1, 2014. See I.C. § 35-

38-1-17(a); Woodford v. State, 58 N.E.3d 282, 285 (Ind. Ct. App. 2016).

[7] The current version of the modification statute is therefore controlling, but

because Dodd is classified as a violent criminal under that version of the statute

Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017 Page 3 of 4 and more than 365 days have elapsed from the date of his sentencing, the

prosecutor’s consent was required. Nevertheless, Dodd argues that he should

not be considered a violent criminal for the purposes of I.C. § 35-38-1-17

because, at the time he was sentenced, attempted murder was not classified as a

crime of violence under Ind. Code § 35-50-1-2. But I.C. § 35-50-1-2 addresses

the limits on the lengths of consecutive sentences for nonviolent felonies arising

out of an episode of criminal conduct. It has no application to sentence

modifications and is therefore irrelevant to the case before us. The sentence

modification statute is self-contained, providing its own definition of “violent

criminal,” which expressly includes individuals convicted of attempted murder.

I.C. § 35-38-1-17. Dodd wishes to obtain the benefits of the amended

modification statute (i.e., the elimination of the consent requirement for

nonviolent criminals) without being subject to its limitations (i.e., the definition

of violent criminal). He cannot have it both ways. The trial court correctly

concluded that the prosecutor’s consent to the motion to modify was required.

[8] Judgment affirmed.

[9] Baker, J. and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1211 | September 27, 2017 Page 4 of 4