Shawn Jaco v. State of Indiana ( 2015 )

Dec 31 2015, 8:37 am
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Shawn Jaco Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shawn Jaco, December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
82A01-1506-CR-817
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli E. Fink,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1011-FB-1353
Brown, Judge.
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[1] Shawn Jaco, pro se, appeals from the denial of his motion for modification of
sentence. Jaco raises one issue, which we revise and restate as whether the trial
court erred in denying his motion. We affirm.
Facts and Procedural History
[2] In November 2011, a jury found Jaco guilty of aggravated battery as a class B
felony and criminal confinement as a class C felony. On December 14, 2011,
the trial court sentenced Jaco to fourteen years for his conviction for aggravated
battery and five years for his conviction for criminal confinement, to be served
concurrently with each other. We affirmed Jaco’s convictions on appeal. Jaco
v. State, No. 82A01-1203-CR-104 (Ind. Ct. App. December 31, 2012), trans.
denied.
[3] On February 17, 2015, Jaco filed a motion for modification of sentence arguing
that he has been fully rehabilitated. On May 28, 2015, the court held a hearing
at which the State objected, and the court denied Jaco’s motion.
Discussion
[4] The issue is whether the trial court erred in denying Jaco’s motion 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, 545-546 (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.
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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).
[5] 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-l-17(b) (2012) (emphasis added).
[6] 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).
[7] 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;
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(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, 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).
[8] 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).
[9] Jaco asserts that the trial court abused its discretion in denying his motion and
that, while more than 365 days had passed since he was sentenced, his motion
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deserved more consideration. He argues the court should have allowed him an
opportunity to express his commitment to change, that he has completed
several rehabilitative programs, and that he has shown reformative behavior.
Jaco further argues that the revision of Ind. Code § 35-38-1-17 gives a trial court
authority to move a petitioner, over 365 days after sentencing, from the
Department of Correction to community corrections without a prosecutor’s
approval, and that this change was procedural and ameliorative and therefore
should be applied to him. The State maintains that Jaco is a violent criminal
under Ind. Code § 35-38-1-17(d)(6) as he committed aggravated battery, that he
did not file his motion for modification until more than 365 days after he was
sentenced, and thus that the trial court could not modify his sentence under Ind.
Code § 35-38-1-17(a).
[10] Jaco contends that the version of Ind. Code § 35-38-l-17 which became effective
on July 1, 2014, is applicable to him and thus that he is not required to obtain
prosecutorial approval with respect to his modification request. To the extent
his contention is based on the filing date of his motion for modification of
sentence, we observe that this court has held that the 2014 version of the statute
does not apply under these circumstances. 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
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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
attorney.” I.C. § 35-38-1-17(b) (2005) (emphasis added); see also
Harris v. State, 897 N.E.2d 927, 928-929 (Ind. 2008) (“The
sentencing statute in effect at the time a crime is committed
governs the sentence for that crime.”).
Despite Hobbs’ assertions to the contrary on appeal, there is no
question that the current version of Indiana Code Section 35-38-
1-17 does not apply to him. I.C. § 1-1-5.5-21 (“The general
assembly does not intend the doctrine of amelioration . . . to
apply to any SECTION of P.L. 158-2013 or P.L. 168-2014”); see
also Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (“It
is abundantly clear . . . that the General Assembly intended the
new criminal code to have no effect on criminal proceedings for
offenses committed prior to the enactment of the new code.”),
trans. denied. Hobbs’ arguments to the contrary are without
merit.
Id. In subsequent cases, we also cited the savings clause and reached the
conclusion that the 2014 amendment eliminating the requirement of approval
of the prosecutor did not apply retroactively. See Carr v. State, 33 N.E.3d 358,
358-359 (Ind. Ct. App. 2015) (citing the savings clause and Hobbs and
concluding the version of Ind. Code § 35-38-1-17 which became effective July 1,
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2014, did not apply where Carr’s crime was committed in 1999), trans. denied;
Swallows, 31 N.E.3d at 545-547 (noting the plain meaning of the savings clause
and the reasoning in Hobbs and concluding that the version of Ind. Code § 35-
38-1-17 which became effective on July 1, 2014, did not apply to Swallows’s
petition to modify a sentence that he began serving in 1989).1 Additionally, in
Johnson v. State, we concluded that the 2014 amendment to Ind. Code § 35-38-1-
17(b) was not remedial, that the 2014 amendment constituted a substantive and
not a procedural change, that thus the 2014 version of the statute did not apply
to the Johnsons, and accordingly we affirmed the denial of the Johnsons’
petitions for sentence modifications in that case.2 36 N.E.3d at 1134-1138.
[11] Based on these cases and the language of the savings clause found at Ind. Code
§ 1-1-5.5-21 (2014), we conclude that the version of Ind. Code § 35-38-1-17
which became effective July 1, 2014, does not apply to Jaco’s motion for
modification of sentence.
[12] Additionally, we note that Ind. Code § 35-38-1-17 was amended again effective
May 5, 2015. The 2015 version of the statute includes a provision that,
notwithstanding the savings clause found at Ind. Code § 1-1-5.5-21, the
1
But see Moore v. State, 30 N.E.3d 1241, 1245-1250 (Ind. Ct. App. 2015) (concluding in part that the 2014
amendment constituted a procedural change, that the savings clause did not prevent a person convicted prior
to July 1, 2014 from bringing his petition under the statute as revised by the 2014 amendment, and that the
trial court had the authority to entertain Moore’s petition without the consent of the prosecutor), trans. not
sought.
2
Following this court’s opinion, the Johnsons filed a petition to transfer. The Indiana Supreme Court held
oral argument and issued an order denying the Johnsons’ petition to transfer on the same day, leaving this
court’s opinion undisturbed.
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provisions of Ind. Code § 35-38-1-17 are applicable to a person who committed
an offense or was sentenced before July 1, 2014. Ind. Code § 35-38-l-17(a)
(2015). However, the 2015 version also provides that, except as provided in
subsections (k) and (m),3 Ind. Code § 35-38-l-17 does not apply to a “violent
criminal,” and a violent criminal is defined to include a person convicted of
aggravated battery. Ind. Code § 35-38-l-17(c), -17(d)(6) (2015). Ind. Code § 35-
38-1-17(k) (eff. May 5, 2015) provides that, “[a]fter 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.”
Thus, Jaco would not be and is not entitled to file a petition for modification of
his sentence under the 2015 version of the modification statute without
prosecutorial consent.
Conclusion
[13] For the foregoing reasons, we affirm the trial court’s denial of Jaco’s motion for
modification of sentence.
[14] Affirmed.
Kirsch, J., and Mathias, J., concur.
3
Subsection (m) applies to a person who commits an offense after June 30, 2014, and before May 15, 2015,
and is inapplicable here.
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