Steven R. Ott v. State of Indiana

997 N.E.2d 1083, 2013 WL 5630986, 2013 Ind. App. LEXIS 508
CourtIndiana Court of Appeals
DecidedOctober 16, 2013
Docket20A05-1306-CR-270
StatusPublished
Cited by3 cases

This text of 997 N.E.2d 1083 (Steven R. Ott v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steven R. Ott v. State of Indiana, 997 N.E.2d 1083, 2013 WL 5630986, 2013 Ind. App. LEXIS 508 (Ind. Ct. App. 2013).

Opinion

OPINION

BROWN, Judge.

Steven R. Ott appeals the denial of his motion to correct error following the trial court’s order denying his “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35-50-2-7(c).” Appellant’s Appendix at 39. Ott raises one issue which we revise and restate as whether the court erroneously denied his motion to correct error. We affirm.

FACTS AND PROCEDURAL HISTORY In February 1975, the State charged Ott with delivering a controlled substance, LSD, on May 6, 1974, as a felony. On March 7, 1975, Ott pled not guilty. On April 1, 1977, Ott moved to withdraw his plea of not guilty and enter a plea of guilty to the lesser offense of possession of a controlled substance, and the court accepted Ott’s plea. On May 16, 1977, the court sentenced Ott to five years with all but 350 days suspended and ordered that the Sheriff give Ott consideration for work release. An entry dated the day of sentencing in the chronological case summary states:

The Court does now find that by reason of the facts and circumstances of this case that the interest of society does not demand or require that [Ott] shall suffer the full penalty imposed by law and the Court now suspends the execution of all of the sentence herein imposed upon [Ott] except for the first 350 days thereof and orders [Ott] confined to the Elk-hart County Jail for a period of 350 days and further orders that [Ott] be given *1084 consideration by the Sheriff for work release.

Id. at 3. On January 23, 1978, the court entered a notice which authorized Ott’s release from the work release program effective February 4, 1978, and ordered that Ott report to the probation department and be on probation for two years. On October 1, 1979, Ott was discharged from probation.

On April 15, 2013, Ott filed a “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35-50-2-7(c).” Id. at 39. On April 29, 2013, the court denied Ott’s motion. The court’s order states:

Court denies such Motion for the following reasons:
1. Court lacks jurisdiction to modify [Ott’s] sentence more than one (1) year after date of the original sentencing; and
2. [Ott’s] conviction was not for a class D felony. The designation of “Class D Felony” did not exist in Indiana before July 1, 1977. Moreover, [Ott] received a determinant [sic] sentence of five (5) years, which under the prior sentencing standards, which sentence is substantially in excess of the maximum sentence available for a class D felony.
The Court not only lacks jurisdiction to grant the relief requested by [Ott], [Ott] would not be entitled to the relief requested even if the Court had jurisdiction.

Id. at 41. On May 6, 2013, Ott filed a motion to correct error. On May 9, 2013, the court conceded that it had jurisdiction under Ind.Code § 35-50-2-7 to convert a class D felony conviction to a class A misdemeanor conviction but affirmed that Ott had not been convicted of a class D felony and thus the court lacked jurisdiction to grant the requested relief.

DISCUSSION

The issue is whether the court erroneously denied Ott’s motion to correct error. Generally, we review a trial court’s denial of a motion to correct error for an abuse of discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind.2002). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied.

Ott argues that he was sentenced approximately six weeks before the law designating classes of felonies went into effect. He contends that “[i]t would appear that the legislative intent, as evidenced by the language of the statute, was to make possession of LSD a class D felony.” Appellant’s Brief at 10. Ott states that “if he had been sentenced six weeks later his sentence would have ranged from six (6) months to three (3) years.” Id. at 11. He suggests that the Indiana Supreme Court “appears not to have addressed the modification issue in relation to subsection (c)” in State v. Brunner, 947 N.E.2d 411, 416 (Ind.2011), reh’g denied. Id. Ott also argues that while the Brunner Court cited Ind.Code § 35-38-1-1.5 to foreclose the defendant’s opportunity for a reduction from a class D felony to a class A misdemeanor in that case, the statute is not applicable in the present case because “it was for post-2003 convictions and was effective until July 1, 2013.” Id. at 12. He further contends that “the actions of the trial court, while not specifically indicating the sentence had been reduced to a Class A misdemeanor, did in essence reduce the conviction to that level.” Id. at 13.

The State maintains that Ott does not qualify for misdemeanor modification *1085 under Ind.Code § 35-50-2-7 because he was not convicted of a class D felony. The State contends that the language of Ind. Code § 35-50-2-7 is unambiguous and that by its very language “only defendants who have been convicted of class D felonies may use the statute to procure relief.” Appellee’s Brief at 4. The State also alleges that “[t]he legislature could have made a provision for defendants with unclassified felonies, but apparently it made the decision not to include those individuals within the reach of the statute.” Id. at 5.

Ott’s argument requires us to interpret Ind.Code § 35-50-2-7. When interpreting a statute, we independently review a statute’s meaning and apply it to the facts of the case under review. State v. Evans, 810 N.E.2d 335, 337 (Ind.2004), reh’g denied. “If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning.” Id. If a statute is susceptible to multiple interpretations, we must try to ascertain the legislature’s intent and interpret the statute so as to effectuate that intent. Id.

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997 N.E.2d 1083, 2013 WL 5630986, 2013 Ind. App. LEXIS 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steven-r-ott-v-state-of-indiana-indctapp-2013.