Brad Davis v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 19 2020, 8:52 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Brad Davis Curtis T. Hill, Jr.
Plainfield Correctional Facility Attorney General
Plainfield, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brad Davis, June 19, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2686
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G03-1102-MR-9870
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2686 | June 19, 2020 Page 1 of 7
Case Summary
[1] Brad Davis appeals the denial of his motion for sentence modification. Because
he has failed to present a cogent argument, we affirm.
Facts and Procedural History
[2] On February 13, 2011, Davis shot and killed Bryan Vizuet. The State charged
Davis with murder and class A misdemeanor carrying a handgun without a
license. A jury found Davis guilty of the lesser included offense of class A
felony voluntary manslaughter and class A misdemeanor carrying a handgun
without a license. On February 10, 2012, the trial court sentenced Davis to
thirty-five years in the Department of Correction (DOC) with five years
suspended.
[3] On July 31, 2019, Davis, by counsel, filed a motion requesting the trial court to
order the DOC to prepare a conduct report in anticipation of a motion for
sentence modification. The trial court ordered the DOC to prepare the report,
which the DOC filed on August 8, 2019. The DOC report shows that Davis
completed the GRIP Program, the Purposeful Living Units Serve (PLUS)
Program, and the DOL Assembly Tech Program, and has been continuously
assigned to work and has never received a conduct report for poor behavior.
The DOC report indicates that Davis’s earliest possible release date is August
14, 2024. Appellant’s App. Vol. 3 at 12.
[4] On September 12, 2019, Davis, by counsel, filed a motion for sentence
modification requesting placement in the Marion County Community
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Corrections Program. The State filed an objection to Davis’s motion. On
October 3, 2019, the trial court issued an order denying Davis’s motion. This
appeal ensued.
Discussion and Decision
[5] Before addressing Davis’s argument, we note that he has chosen to proceed pro
se:
It is well settled that pro se litigants are held to the same legal
standards as licensed attorneys. This means that pro se litigants
are bound to follow the established rules of procedure and must
be prepared to accept the consequences of their failure to do so.
We will not become an advocate for a party, or address
arguments that are inappropriate or too poorly developed or
expressed to be understood.
Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016) (citations and
quotation marks omitted), trans. denied (2017).
[6] Davis argues that the denial of his motion for sentence modification violates
Article 1, Section 18 of Indiana Constitution, which provides, “The penal code
shall be founded on the principles of reformation and not of vindictive justice.”
As best we can discern, Davis contends that the denial of his motion constitutes
vindictive justice given that (1) his conduct report demonstrated his
reformation, (2) he has fulfilled the requirements of allegedly applicable Indiana
Code Chapter 35-38-2.6, and (3) the State’s objection to his motion included
erroneous, prejudicial statements. Appellant’s Br. at 8. However, Davis has
failed to set forth a standard of review or cite any case law in support of his
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argument. Therefore, he has waived this issue by failing to present a cogent
argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in
appellant’s brief be supported by cogent reasoning and citations to authorities,
statutes, and the appendix or parts of the record on appeal); Ind. Appellate Rule
46(A)(8)(b) (requiring that argument include for each issue a concise statement
of the applicable standard of review); Casady v. State, 934 N.E.2d 1181, 1190
(Ind. Ct. App. 2010) (failure to cite rules of evidence and case law waived claim
of improperly admitted evidence), trans. denied (2011).
[7] Waiver notwithstanding, Davis’s challenge to the denial of his motion for
sentence modification is meritless. As a whole, Davis’s arguments are more
appropriately framed as whether the trial court abused its discretion in denying
his motion for sentence modification. “We review a trial court’s decision on a
motion for sentence modification for abuse of discretion.” Newson v. State, 86
N.E.3d 173, 174 (Ind. Ct. App. 2017), 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 or it is a misinterpretation of the law.” Id.
[8] “A trial judge generally has no authority over a defendant after sentencing;
however, the legislature may give the court authority, under certain
circumstances, to modify a defendant’s sentence.” State v. Harper, 8 N.E.3d
694, 696 (Ind. 2014). Davis filed his motion for sentence modification pursuant
to Indiana Code Section 35-38-1-17, which applies to defendants who
committed their offenses or were sentenced before July 1, 2014. However,
except for subsections (k) and (m), Section 35-38-1-17 does not apply to violent
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criminals. Ind. Code § 35-38-1-17(c). Davis was convicted of voluntary
manslaughter and is a violent criminal as defined by the statute. Ind. Code §
35-38-1-17(d)(3). Subsection (m) does not apply to Davis because it pertains
only to persons who commit an offense after June 30, 2014, and before May 15,
2015. Subsection (k) provides as follows:
This subsection applies to a convicted person who is a violent
criminal. A convicted person who is a violent criminal may, not
later than three hundred sixty-five (365) days from the date of
sentencing, file one (1) petition for sentence modification under
this section without the consent of the prosecuting attorney.
After the elapse of the three hundred sixty-five (365) day period,
a violent criminal may not file a petition for sentence
modification without the consent of the prosecuting attorney.
Here, Davis filed his motion for sentence modification more than 365 days after
the date of sentencing, and therefore pursuant to subsection (k) he was required
to obtain the consent of the prosecuting attorney for sentence modification and
did not. 1 As such, the trial court had no authority to modify Davis’s sentence.
See Johnson v. State, 36 N.E.3d 1130, 1134-35 (Ind. Ct. App. 2015) (“Our courts
have consistently held that once the limited amount of time granted by the
1
We reject Davis’s argument that certain statements in the State’s objection were erroneous and prejudicial.
Our review of the record on appeal shows that the challenged statements accurately reflect Davis’s charges
and convictions, that his criminal history was a sentencing aggravator, and that he was seven and a half years
into his thirty-year sentence in the DOC. Furthermore, the State was not required to explain its reasons for
withholding consent, and Davis did not file a response to the State’s objection.
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statute has passed, the trial court is without authority to reduce or suspend a
sentence unless the prosecutor consents.”), trans. denied.
[9] To the extent that Davis claims that Indiana Code Section 35-38-1-17 runs afoul
of the Indiana Constitution’s prohibition against vindictive justice, we have
previously rejected that argument. See Manley v. State, 868 N.E.2d 1175, 1178
(Ind. Ct. App. 2007) (affirming denial of motion for sentence modification and
concluding that “[t]here was nothing vindictive about requiring Manley to serve
his entire sentence, notwithstanding that he has diligently pursued education
opportunities while incarcerated.”), trans. denied.
[10] Finally, to the extent that Davis relies on Indiana Code Chapter 35-38-2.6, we
note that Indiana Code Section 35-38-2.6-3 provides, “The court may, at the
time of sentencing, suspend the sentence and order a person to be placed in a
community corrections program as an alternative to commitment to the
department of correction.” Section 35-38-2.6-3 applies “at the time of
sentencing[,]” and therefore is inapplicable to sentence modification. See Keys v.
State, 746 N.E.2d 405, 407 (Ind. Ct. App. 2001) (concluding that Section 35-38-
2.6-3 does not allow trial court to modify placement after sentencing). We
conclude that the trial court did not abuse its discretion in denying Davis’s
motion for sentence modification.
[11] Based on the foregoing, we affirm the denial of Davis’s motion for sentence
modification.
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[12] Affirmed.
Bailey, J., and Altice, J., concur.
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