Hawkins v. State
2011 Ind. App. LEXIS 1319
| Ind. Ct. App. | 2011Background
- Hawkins charged with five counts of class C felony child molesting; pled to two counts and three dismissed; trial court imposed 16 years with one year suspended.
- On appeal, Hawkins challenged the sentence as inappropriate and this court reduced each sentence to five years, consecutive, without a new sentencing hearing.
- Amended sentencing order was entered April 15, 2010; August 20, 2010 order clarified all ten years would be executed with no probation.
- Hawkins moved to modify his sentence on November 16, 2010; prosecutor opposed alleging the 365-day window had expired; Hawkins argued clock restarted at resentencing.
- Trial court denied modification; Hawkins appealed, challenging whether the 365-day period began at original sentencing or resentencing and whether modification was forfeited by timing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 365-day window start for modification? | Hawkins: clock restarted at resentencing; counts as new trigger. | State: clock began at original sentencing; resentencing does not restart. | Clock did not restart; start date = original sentencing. |
| Does resentencing restart the 365-day period for modification under Ind. Code § 35-38-1-17(a)(1)? | Hawkins: resentencing restarts the period. | State: resentencing does not restart the period; clock continues from initial sentencing. | Resentencing does not restart the 365-day period. |
| Is modification subject to prosecutor consent if filed after 365 days? | Hawkins: may modify if merits shown and allowed by statute; timing should not bar if factors exist. | State: outside 365 days requires prosecutor consent; without it, trial court has no authority. | Prosecutor opposed; trial court lacked authority to grant modification. |
| Are Rule 7(B) sentence-review and § 35-38-1-17 modification distinct remedies? | Hawkins: they are separate avenues; may pursue both if timing allows. | State: they are not mutually exclusive but timing and sequencing matter; stay may affect review. | They are separate avenues; stay and sequencing considerations do not alter the untimeliness here. |
Key Cases Cited
- Redmond v. State, 900 N.E.2d 40 (Ind.Ct.App.2009) (resentencing can restart the clock; but note latest statutory language)
- Sanders v. State, 638 N.E.2d 840 (Ind.Ct.App.1994) (stay procedure promotes judicial economy in modification context)
- Porter v. State, 729 N.E.2d 591 (Ind.Ct.App.2000) (outside 365 days with prosecutor consent; court may modify)
- Catt v. State, 749 N.E.2d 633 (Ind.Ct.App.2001) (modification discretion within 365 days per statute)
- Gardiner v. State, 928 N.E.2d 194 (Ind.2010) (new judgment when conviction modified; affects timing trigger analysis)