Case Information

*1 MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Lisa M. Johnson Curtis T. Hill, Jr.

Brownsburg, Indiana Attorney General of Indiana

Angela Sanchez Deputy Attorney General Indianapolis, Indiana I N T H E

COURT OF APPEALS OF INDIANA David L. Newson, September 15, 2017 Court of Appeals Case No. Appellant-Petitioner,

49A05-1705-PC-1090 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy J. Barbar, Magistrate Appellee-Respondent.

Trial Court Cause No. 49G02-9604-PC-48010

Barnes, Judge.

Case Summary

[1] David L. Newson appeals the trial court’s denial of his motion for modification

of his seventy-three-year sentence for murder and class C felony carrying a handgun without a license. ^[1] We affirm.

Issue The sole issue is whether the trial court properly found that Newson was a

“violent criminal” and, therefore, not entitled to file a motion to modify his sentence more than 365 days after his sentencing hearing, without first obtaining the consent of the prosecuting attorney.

Facts On December 3, 1997, a jury found Newson guilty of murder and class C

felony carrying a handgun without a license. On January 8, 1998, the trial court imposed maximum consecutive sentences of sixty-five years and eight years, respectively, for an aggregate sentence of seventy-three years. Our supreme court affirmed Newson’s convictions. Newson v. State , 721 N.E.2d 237, 239 (Ind. 1999). On September 2, 2016, Newson filed a motion to modify his sentences

requesting that his eight-year sentence be served concurrently with his sixty- *3 five-year sentence. The State objected, and the trial court denied the motion for modification of sentence. Newson now appeals.

Analysis Newson argues that the trial court erred in refusing to modify his sentence. We

review a trial court’ s decision on a motion for sentence modification for abuse of discretion. Gardiner v. State , 928 N.E.2d 194, 196 (Ind. 2010). An abuse of discretion occurs when the trial co urt’s decision is clearly against the logic and effect of the facts and circumstances or it is a misinterpretation of the law. Blount v. State , 22 N.E.3d 559, 564 (Ind. 2014). Indiana Code Section 35-38-1-17, which governs the reduction and suspension

of sentences, was amended in 2015 to provide that it applies to defendants who committed their offenses or were sentenced before July 1, 2014. See Woodford v. State, 58 N.E.3d 282, 285 (Ind. Ct. App. 2016) (discussing history of Ind. Code § 35-38-1-17). Indiana Code Section 35-38-1- 17(d)(1) defines a “violent criminal” as a person

convicted of any of the enumerated offenses, including murder. Section 35-38- 1-17(k) provides that, “not later than three hundred sixty -five (365) days from the date of sentencing,” a violent criminal may file one motion for sentence modification without the consent of the prosecuting attorney. After 365 days, a violent criminal is ineligible to move for sentence modification without the prosecuting attorney’s consent. I.C. § 35-38-1-17(k). Newson is a “violent criminal” because he was convicted of murder. See I.C. §

35-38-1-17(d)(1). As a violent criminal, he was not entitled to file a petition for sentence modification more than 365 days after his sentencing hearing without the consent of the prosecuting attorney. Newson was sentenced in January of 1998. He did not file his motion for a sentence modification until September 2, 2016, far more than 365 days after he was sentenced. Pursuant to Indiana Code Section 35-38-1- 17(k), the trial court could only grant Newson’s request for a modification of his sentence if Newson first obtained the consent of the prosecuting attorney. Given the prosecut ing attorney’s objection , the trial court could not have granted Newson’s requested relief. Newson contends that a statutory ambiguity exists under the instant facts,

which ambiguity must be construed in his favor to avoid an absurd result. Specifically, he argues that, because carrying a handgun without a license is not an enumerated offense within Indiana Code Section 35-38-1-17(d), he is not a “ violent criminal ” regarding that specific conviction. He argues that the trial court could, therefore, have granted his requested relief because he was not required to obtain the prosecutor’s consent to modification of his eight-year sentence. We disagree. We review matters of statutory interpretation de novo because they present pure

questions of law. Gardiner, 928 N.E.2d at 196. In interpreting statutes, we take words and phrases in their plain and usual meaning. I.C. § 1-1-4-1(1). *5 Indiana Code Section 35-38-1-17 unambiguously carves out an exception to the general rule allowing for modification of sentences where a person is a “violent criminal ” and provides no temporal or other limitation that evinces a legislative intention to qualify or parse the meaning of “violent criminal” under the instant circumstances. As the State correctly explains in its brief, “The statute defines the type [of] offender who may seek modification, not the specific crimes or portions of sentences that may be modified.” Appellee’s Br. p. 8. Newson is no less a “violent criminal” for p urposes of Indiana Code Section 35-38-1-17(d) because he was convicted of both murder and carrying a handgun without a license. The trial court did not err in refusing to modify his sentence.

Conclusion The trial court did not abuse its discretion in den ying Newson’s motion for

modification of sentence. We affirm. Affirmed.

May, J., and Bradford, J., concur.

[1] On June 12, 2017, Newson filed a Verified Motion to Incorporate by Reference and Take Judicial Notice of Record from Prior Related Appeal (“Motion”). On June 15, 2017, this Court ordered Newson’s Motion held in abeyance to be addressed by the writing panel designated to adjudicate this appeal. Because we determine another issue to be dispositive in this appeal, we deny Newson’s Motion.