Judges deny sentence modifications, but for different reasons


Jennifer Nelson for www.theindianalawyer.com

A panel on the Indiana Court of Appeals concluded Thursday that neither of two men who petitioned in late 2013 to have their 1997 sentences modified are entitled to a modification, but the judges’ reasoning for the denials differed.

Dennis and Raymond Johnson were convicted in 1997 of felony murder and carrying a handgun without a license, and each was sentenced to 55 years. In 2013, the men requested re-entry court evaluations, which the trial court treated as sentence modifications. At a hearing in August 2014, the trial court denied their motions because the prosecutor did not consent to the modifications, which is required based on the statute in effect at the time they were sentenced. Beginning July 1, 2014, the prosecutorial consent requirement was removed, and a savings clause was added saying the new statute did not apply to crimes or sentences prior to July 1.

In a 35-page opinion that included a lengthy concurrence from Judge L. Mark Bailey, the court affirmed the denial of the Johnsons’ request for sentence modification.  Both the majority and Bailey looked at the legislative history of the statute and past cases dealing with sentence modification, including several recently decided by the COA.

“Because the 2014 amendment to Indiana Code section 35-38-1-17 was neither remedial nor procedural, and because the savings clause evinces the intent of the legislature to apply the new criminal code only prospectively, the 2014 version of the sentence modification statute does not apply to the Johnsons. Therefore, the trial court properly determined that, in the absence of prosecutorial consent, it had no authority to modify the Johnsons’ sentences,” Judge Margret Robb wrote in the majority opinion.

She wrote in a footnote that although the statute has again been amended to include people sentenced before July 1, 2014, it is not applicable in the Johnsons’ case since the amended statute did not become effective until May 5, 2015.

“I would hold that the revised statute applies to all petitions filed on or after July 1, 2014, regardless of the petitioner’s conviction or sentencing date. Here, the Johnsons filed their petitions before the effective date of the statute, and thus the trial court did not err in applying the prior version of the statute and denying their petitions for lack of prosecutorial consent,” Bailey wrote.

He also dismissed the argument that allowing anyone to now be able to modify their sentence would flood the courts because the statute limits the number of times a person may file a sentence-modification petition.

The combined cases are Dennis Johnson, Raymond Johnson v. State of Indiana, 48A05-1408-CR-390.