Katie Stancombe for www.theindiaanaialawyer.com

The Indiana Court of Appeals found that prosecutorial consent was not required for an offender’s third sentence modification petition after an amended state statute removed that requirement in 2015.

After pleading guilty to murder, Jeremy Schmitt was sentenced to 50 years for Class A felony conspiracy to commit murder. Since 2005, Schmitt filed for a modification of his sentence three times, all denied by the Vermillion Circuit Court.

In May 2017, Schmitt filed his third petition for sentence modification and listed the many programs, education and employment he had completed while incarcerated. Though the trial court acknowledged and complimented his positive strides during incarceration, it ultimately denied his petition.

On appeal, Schmitt argued the trial court erred by not ordering the Department of Corrections to produce a new progress report and by not holding a hearing. However, the appellate court found there was no indication that the trial court had made a preliminary determination to reduce or suspend Schmitt’s sentence, therefore it was not required to hold a hearing for Schmitt.

In his second argument, Schmitt cited Woodford v. State, 58 N.E.3d 282 (Ind. Ct. App. 2016), which held petitions for modification filed prior to the effective date of the 2015 amendment of Indiana Code section 35-38-1-17 did not count toward the two petitions a petitioner could file without prosecutorial consent.

Schmitt filed two petitions prior to 2015, and one in 2017. He contended in Jeremy Schmitt v. State of Indiana, 83A04-1711-CR-2720, that the 2017 petition was his first petition under the 2015 amendment. The State acknowledged the Woodford holding, but still argued Schmitt had exceeded his petition limits.

“Schmitt’s situation is analogous to Woodford,” Judge Melissa May wrote in the Monday order. In its decision, the appellate court rejected the State’s argument and noted that pursuant to Woodford,prosecutorial consent was not required for Schmitt’s 2017 petition because he had not yet exceeded two filed petitions since the 2015 amendment.

“Because the two-petition limit includes only such petitions as have been filed since the statute was amended in 2015, Schmitt’s petition is effectively the first petition he has filed, and prosecutorial consent was not required,” May wrote.

Lastly, Schmitt argued that because the trial court did not explain its reasons for denial, that denial could have been “premised upon the State’s objection or a belief in that the original sentence was appropriate.”

But the appellate court declined to review the order for an abuse of discretion after determining it was unclear whether the trial court was operating under a misapprehension of its authority.

“The trial court’s order denying the modification notes the prosecutor objected,” May wrote. “These two facts suggest the trial court may have been under the impression it was required to have prosecutorial consent to modify Schmitt’s sentence.”

“Although a trial court is not required to explain its reasons for denial, because the trial court mentioned the State’s response in its order, we reverse that denial and remand for the trial court to review Schmitt’s petition on its merits.”