Johnson v. State

36 N.E.3d 1130

Dennis JOHNSON, Raymond Johnson, Appellants–Defendants

v.STATE of Indiana, Appellee–Plaintiff.

No. 48A05–1408–CR–390.

Court of Appeals of Indiana.

June 25, 2015.

Douglas R. Long, Anderson, IN, Attorney for Appellants.

Gregory F. Zoeller, Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

ROBB, Judge.

Case Summary and Issue

[1] For their participation in a 1996 robbery gone awry, Dennis Johnson and Raymond Johnson were each convicted in 1997 of felony murder and carrying a handgun without a license and sentenced to serve an aggregate term of fifty-five years. In 2013, Dennis and Raymond filed petitions to modify their respective sentences. Following a hearing in August of 2014, the trial court denied both petitions because the prosecutor did not consent to modification. In this consolidated appeal,¹ the Johnsons contend the trial court erred in requiring the prosecutor's consent because prior to the hearing on their petitions, the statute allowing sentence modifications was amended to remove that requirement. Concluding the trial court did not err in applying the prior version of the statute which required prosecutorial consent and in denying the petitions to modify on that basis, we affirm.

Facts and Procedural History

[2] Although the Johnsons' cases have not run identical courses, the salient events are the same: the Johnsons participated in a crime in September 1996 during which Norval Peters was shot and killed. Each pleaded guilty to the charges against him and was sentenced to fifty-five years imprisonment. Raymond was sentenced on August 11, 1997, and Dennis was sentenced on September 29, 1997.

[3] On direct appeal, Raymond's sentence was affirmed. R. Johnson v. State, No. 48A02–9711–CR–791, 692 N.E.2d 514 (Ind.Ct.App., Feb. 27, 1998). Raymond's subsequent petition for post-conviction relief was denied. He sought modification of his sentence in 2007 and 2012, but was denied both times.

[4] Dennis did not pursue a direct appeal, but he filed a petition for post-conviction relief that was denied, and this court affirmed the denial on appeal. D. Johnson v. State, No. 48A04–1015–PC–198 (Ind.Ct.App., Apr. 29, 2002). He sought modification of his sentence in 2007 and 2008, but both petitions were denied.

[5] On December 19, 2013, Raymond and Dennis each filed a Request for Re–Entry Court Evaluation, which the trial court treated as a petition for sentence modification. The trial court initially denied the requests because the State objected, but then ordered a re-entry court evaluation and set the requests for a joint hearing. The hearing was originally scheduled for June 2014 but was ultimately not held until August 11, 2014. At the hearing, the Johnsons argued that they had shown by their conduct and accomplishments while incarcerated that they should be transitioned into a placement that would re-integrate them into society for the final years of their sentences. The Johnsons further noted:

[T]he statute on modification changed July 1st and that's why we set this hearing after July 1st.... So I guess the question is, can you modify them [without the State's consent], the answer seems to be yes, and the second question is will you....

Transcript at 21. The State responded that the version of the modification statute in effect at the time the Johnsons were sentenced should apply to their petitions and indicated that it did not consent to modification; the State also noted that “even if you determine that you can modify [without prosecutorial consent], my position is that you should not....” Id. at 24.

[6] The trial court issued identical orders denying each request for modification:

... the Court finds that the State of Indiana, despite the provisions of the new Indiana Criminal Code, retains the veto power over sentence modification requests regarding sentences issued before the new Indiana Criminal Code became effective.

[The] Court finds that since the State of Indiana invoked its veto regarding this Sentence Modification request and because the sentence in this matter was levied before the new Indiana Criminal Code became effective, the request for sentence modification is denied.

Appellants' Appendix at 320 (with respect to Dennis) and 609 (with respect to Raymond). The Johnsons now appeal the trial court's order denying the requests to modify their sentences.

Discussion and Decision

I. Standard of Review

[7] The trial court in these cases concluded that the pre–2014 version of the modification statute continued to apply to sentences imposed prior to July 1, 2014. Because the Johnsons were sentenced in 1997, the trial court found that the consent of the prosecuting attorney was required before it could consider modifying their sentences. The prosecuting attorney did not consent, and the trial court denied the petitions.

[8] The Johnsons contend that the 2014 amendment to the modification statute is remedial or procedural and should be applied retroactively to their petitions for modification despite the savings clause. They therefore assert that the trial court may, in its discretion alone, grant their petitions for modification, and they request that we remand their cases to the trial court for consideration on the merits.

[9] 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). Here, the parties differ as to the interpretation of certain statutes, which is a question of law. “Where the issue presented on appeal is a pure question of law, we review the matter de novo.” State v. Moss–Dwyer, 686 N.E.2d 109, 110 (Ind.1997).

II. Applicable Version of the Statute

[10] 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) (2012) (emphasis added).²

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

Ind.Code § 1–1–5.5–21.The general rule in Indiana is that “[s]tatutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well.” State v. Pelley, 828 N.E.2d 915, 919 (Ind.2005). An exception to this general rule exists for remedial or procedural statutes. Martin v. State, 774 N.E.2d 43, 44 (Ind.2002). Although statutes and rules that are procedural or remedial may be applied retroactively, they are not required to be. Pelley, 828 N.E.2d at 919. Even for procedural or remedial statutes, “retroactive application is the exception, and such laws are normally to be applied prospectively absent strong and compelling reasons.” Hurst v. State, 890 N.E.2d 88, 94 (Ind.Ct.App.2008) (quotation omitted), trans. denied.

A. Was the 2014 Amendment Remedial?

[12] Remedial statutes are those that are intended to cure a defect or mischief in a prior statute. Martin, 774 N.E.2d at 44 ; see also W.H. Dreves, Inc. v. Osolo Sch. Twp. of Elkhart Cnty., 217 Ind. 388, 394, 28 N.E.2d 252, 254 (1940) (“It is recognized that the legislature may, by a subsequent statute, correct any omission or irregularity in a proceeding which it might have dispensed with by a prior statute.”). “If a statute is remedial, it should be liberally construed to advance the remedy for the mischief for which it was enacted.” Brown v. State, 947 N.E.2d 486, 490 (Ind.Ct.App.2011), trans. denied; see also State v. Denny, 67 Ind. 148, 155 (1879) (“There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy.”). So, for instance, in Martin, our supreme court found a statute to be remedial when it was enacted in response to a conflict in case law regarding its interpretation. 774 N.E.2d at 45. There, in revoking the defendant's probation, the trial court denied him credit for time served on home detention as a condition of his probation. At the time, Indiana Code sections 35–38–2–3 and 35–38–2.5–5 were silent as to whether a defendant was...