Omstead v. State

42 N.E.3d 585 (Table)

Jon OMSTEAD, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A04–1412–CR–578.

Court of Appeals of Indiana.

Nov. 25, 2015.

Mary K. Zahn, Tyler D. Helmond, Voyles Zahn & Paul, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BROWN, Judge.

[1] Jon Omstead appeals from the denial of his petition for modification of sentence. Omstead raises one issue, which we revise and restate as whether the trial court erred in denying his petition. We affirm.

Facts and Procedural History

[2] On December 29, 1997, Omstead and Christopher Nahas entered the home of Evan Hunter, where Omstead shot Terry Scarborough in the head and Nahas shot Hunter in the head, and the men died from the gunshot wounds. In October 1998, Omstead pled guilty to two counts of murder pursuant to a plea agreement which provided that he would receive concurrent sentences and would not receive a sentence greater than fifty-five years. On March 12, 1999, the court sentenced Omstead to concurrent terms of fifty-five years for each of his murder convictions consistent with the plea agreement.

[3] On October 7, 2014, Omstead filed a Petition for Modification of Sentence. In his petition, Omstead argued that Ind.Code § 35–38–1–17 (2014) is procedural and remedial in nature and therefore can and should be applied retroactively. Omstead argued that he had already served approximately sixteen actual years of his sentence and that he has shown he is deserving of a sentence modification. He requested that the court reduce or suspend his sentence by ten years or, alternatively, order the last ten years be served as an executed sentence in community corrections. He stated he was eighteen years old at the time of the incident, that he is a completely changed individual, and that serving the additional ten years would not serve to further his rehabilitation.

[4] On October 22, 2014, the State filed an objection to modification stating that, pursuant to the version of Ind.Code § 35–38–1–17 in effect when Omstead's offense was committed, the court lacked the authority to modify his sentence without the consent of the prosecutor. The State argued that the 2014 amendments to the statute do not apply retroactively and that the court lacked authority to grant a modification.

[5] On December 3, 2014, the court held a hearing on Omstead's petition for modification of sentence. The court found that Omstead was not eligible for relief and denied his petition.

Discussion

[6] The issue is whether the trial court erred in denying Omstead's petition for modification of sentence. We review a trial court's denial of a petition to modify a sentence only for abuse of discretion. Swallows v. State, 31 N.E.3d 544 (Ind.Ct.App.2015) (citing Hobbs v. State, 26 N.E.3d 983, 985 (Ind.Ct.App.2015) (citing Gardiner v. State, 928 N.E.2d 194, 196 (Ind.2010) )), trans. denied. If the ruling rests on a question of law, however, we review the matter de novo. Id. (citing State v. Holloway, 980 N.E.2d 331, 334 (Ind.Ct.App.2012) ). Matters of statutory interpretation present pure questions of law. Id. (citing State v. Brunner, 947 N.E.2d 411, 416 (Ind.2011) (citing Gardiner, 928 N.E.2d at 196 ), reh'g denied).

[7] The first step in interpreting a statute is to determine whether the legislature has spoken clearly and unambiguously on the point in question. Id. (citing City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007) ). When a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Id. However, when a statute is susceptible to more than one interpretation, it is deemed ambiguous and thus open to judicial construction. Id. When faced with an ambiguous statute, other well-established rules of statutory construction are applicable. Id. One such rule is that our primary goal of statutory construction is to determine, give effect to, and implement the intent of the legislature. Id. To effectuate legislative intent, we read the sections of an act together in order that no part is rendered meaningless if it can be harmonized with the remainder of the statute, examine the statute as a whole, and do not presume that the legislature intended language used in a statute to be applied illogically or to bring about an unjust or absurd result. Id.

[8] Ind.Code § 35–38–1–17 addresses the reduction or suspension of a sentence. Prior to July 1, 2014, the statute provided in part:

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); see also Ind.Code § 35–38–1–17(b) (1991) (substantively similar provision permitting the court to reduce or suspend the sentence “subject to the approval of the prosecuting attorney”).

[9] Effective July 1, 2014, the criminal code was subject to a comprehensive revision pursuant to Pub.L. No. 158–2013 and Pub.L. No. 168–2014. The sentence modification statute as amended in 2014 provided in relevant part:

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–l–17(c) (eff.Jul.1, 2014).

[10] The legislature also enacted a savings clause which provides:

(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 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 (eff. July 1, 2014).

[11] Omstead maintains that he is entitled to the benefit of the sentence modification statute as amended in 2014. He argues that the triggering event in determining whether the statute applies should be the date of filing the petition for modification and not the date of the offense or the date of sentencing. Omstead further contends that the amended statute is procedural and remedial and thus applies retroactively to him. He posits that the savings clause does not foreclose application of the 2014 statute to him because a request for a sentence modification is not a penalty incurred or a crime committed and the proceeding here began when he sought modification on October 7, 2014. He also argues that the goals of the criminal code revision, including favoring simplicity, promoting rehabilitation of offenders in a community setting, avoiding use of scarce prison space for nonviolent offenders, and giving trial courts maximum discretion, support applying the 2014 statute.

[12] The State's position is that the trial court properly denied Omstead's petition as it did not have the authority to modify his sentence under the modification statute. The State argues that the language of the savings clause is all-encompassing, that Omstead's sentence is a penalty incurred prior to July 1, 2014, and that by the plain language of the statute the penalty may not be affected in any way by any provision of the revised code. The State also contends that, regardless, the issue is moot because effective May 5, 2015, the legislature amended Ind.Code § 35–38–1–17 so that defendants who were sentenced prior to July 1, 2014, and who are not violent criminals may request a sentence modification.

[13] Generally, “[s]tatutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well.” Johnson v. State, 36 N .E.3d 1130, 1134 (Ind.Ct.App.2015) (citing State v. Pelley, 828 N .E.2d 915, 919 (Ind.2005) ), trans. denied. An exception to this general rule exists for remedial or procedural statutes. Id. (citing 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. Id. (citing Pelley, 828 N.E.2d at 919–920 ). 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.” Id. (citing Hurst v. State, 890 N.E.2d 88, 94–96 (Ind.Ct.App.2008) (quotation omitted), trans. denied).

[14] In Hobbs v. State, Hobbs was convicted in 2006 for offenses he committed in 2005, and the trial court sentenced him to an aggregate sentence of twenty-three years. 26 N.E.3d at 984–985. On July 23, 2014, Hobbs filed a petition for modification of his sentence pursuant to Ind.Code § 35–38–1–17(c) (2014), and we denied his petition and held that the 2014 version of the statute did not apply to him. Id. at 985–986. We explained:

[Ind.Code § 35–38–1–17(c) ] became effective July 1, 2014, as part of the General Assembly's overhaul of our criminal code pursuant to P.L. 158–2013 and P.L. 168–2014. It was not in effect at the time Hobbs committed his offense against L.M.; rather, the law in effect at that time stated in relevant part: “If more than three hundred sixty-five (365) days have elapsed since the defendant 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

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