Robert M. Nolan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 31, 2016
• Docket: 22A01-1503-CR-120
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:58 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Robert M. Nolan Gregory F. Zoeller New Castle, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert M. Nolan, March 31, 2016 Appellant-Defendant, Court of Appeals Case No. 22A01-1503-CR-120 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Maria D. Granger, Appellee-Plaintiff. Judge Trial Court Cause No. 22D03-0907-FB-1637

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016 Page 1 of 5 Statement of the Case [1] Robert Nolan appeals the trial court’s denial of his petition for modification of

his sentence following his convictions for rape, as a Class B felony; child

molesting, as a Class C felony; and two counts of child seduction, Class D

felonies. Nolan presents a single issue for our review, namely, whether the trial

court abused its discretion when it denied his petition for modification of his

sentence. We affirm.

Facts and Procedural History [2] On July 2, 2010, a jury found Nolan guilty of rape, as a Class B felony; child

molesting, as a Class C felony; and two counts of child seduction, Class D

felonies. The trial court entered judgment of conviction on all counts and

sentenced Nolan to an aggregate term of thirty years with eight years suspended

to probation. This court affirmed his convictions and sentence on appeal.

Nolan v. State, No. 22A01-1007-CR-433, 2012 WL 456537 (Ind. Ct. App.

February 14, 2012).

[3] On June 17, 2014, Nolan filed a petition for modification of his sentence. At a

hearing on the petition, the State objected to any modification of his sentence.

Still, the trial court heard testimony from several character witnesses. The trial

court took the matter under advisement, and on March 2, 2015, the trial court

denied Nolan’s petition. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016 Page 2 of 5 Discussion and Decision [4] We review a trial court’s decision regarding modification of a sentence for an

abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). 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. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).

[5] A trial court generally has no authority over a defendant after sentencing. State

v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). A notable exception is Indiana Code

Section 35-38-1-17, which gives trial courts authority under certain

circumstances to modify a sentence after it is imposed. Id. From 1991 until

June 30, 2014, the relevant section of the sentence modification statute read:

(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(b) (2009) (emphasis added). Effective July 1, 2014, the

criminal code was subject to a comprehensive revision pursuant to P.L. 158-

2013 and P.L. 168-2014. The pertinent section of the sentence modification

statute was amended to read:

(c) 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

Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016 Page 3 of 5 the court was authorized to impose at the time of sentencing. The court must incorporate its reasons in the record.

Ind. Code § 35-38-1-17(c) (2014). The legislature also included a specific

savings clause as part of the 2014 revision of the criminal code, stating that:

(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 [Vicory] v. State [272 Ind. 683], 400 N.E.2d 1380 (Ind. 1980)) to apply to any SECTION of P.L. 158-2013 or P.L. 168-2014.

I.C. § 1-1-5.5-21.

[6] This court has held that “the 2014 amendment to Indiana Code section 35-38-1-

17 was neither remedial nor procedural” and “the savings clause evinces the

intent of the legislature to apply the new criminal code only prospectively.”

Johnson v. State, 36 N.E.2d 1130, 1137 (Ind. Ct. App. 2015), trans. denied. Here,

as the State points out, “every provision of the savings clause bars Nolan’s Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016 Page 4 of 5 petition: his crimes were committed, his penalties incurred, and these

proceedings were begun before July 1, 2014.” Appellee’s Br. at 9. Because the

prosecutor objected to Nolan’s petition for modification of his sentence, the trial

court had no authority to modify his sentence under the applicable version of

Indiana Code Section 35-38-1-17(b), and the court did not abuse its discretion

when it denied Nolan’s petition. See Carr v. State, 33 N.E.2d 358, 359 (Ind. Ct.

App. 2015) (holding pre-2014 version of sentence modification statute applied

where defendant petitioned for modification after effective date of new version

of statute but had committed crimes prior to 2000), trans. denied.

[7] Affirmed.

Robb, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-120 | March 31, 2016 Page 5 of 5