ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HILARY BOWE RICKS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
GARY KEYS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-0012-CR-520 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
the court may reduce or suspend the sentence. The court must incorporate
its reasons in the record.
(b) 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. The court must give notice of
the order to reduce or suspend the sentence under this section to the
victim (as defined in IC 35-35-3-1) of the crime for which the
defendant is serving the sentence.
(c) The court may suspend a sentence for a felony under this section
only if suspension is permitted under IC 35-50-2-2.
(d) The court may deny a request to suspend or reduce a sentence
under this section without making written findings and conclusions.
(e) Notwithstanding subsections (a) and (b), the court is not required to conduct
a hearing before reducing or suspending a sentence if:
(1) the prosecuting attorney has filed with the court an agreement of the
reduction or suspension of the sentence; and
(2) the defendant has filed with the court a waiver of the right to be present when the order to reduce or suspend the sentence is considered.
Based on this statute, the trial court denied Keys motion because it was filed over 365 days after he began serving his sentence and Keys had not obtained the prosecuting attorneys approval of the motion. However, Keys asserts that Ind. Code § 35-38-1-17 concerns suspension of sentences to probation, not suspensions to community corrections as requested by Keys. Keys asserts that Ind. Code § 35-38-2.6-3 applies to the suspensions of sentences to community corrections and that this statute does not require the prosecutors approval.
Ind. Code § 35-38-2.6-3 provides:
(a) The court may, at the time of sentencing, suspend the sentence and order a person to be placed in a community corrections program as an alternative to commitment to the department of correction. The court may impose reasonable terms on the placement.
(b) Placement in a community corrections program under this chapter is subject to
the availability of residential beds or home detention units in a community corrections
(c) A person placed under this chapter is responsible for the person's own
medical care while in the placement program.
(d) Placement under this chapter is subject to the community corrections program receiving
a written presentence report or memorandum from a county probation agency.
In response, the State argues that Ind. Code § 35-38-2.6-3 merely authorizes the trial court to suspend a sentence and place a defendant in a community corrections program at the time of sentencing, but that it does not allow the trial court to modify placement after sentencing. We agree.
Ind. Code § 35-38-1-17 provides the trial court with the authority, under certain circumstances, to modify a defendants sentence. On the other hand, Ind. Code § 35-38-2.6-3 allows the trial court to suspend a sentence and place a defendant in community corrections at the time of the original sentencing. If after sentencing, a defendant requests to modify his placement and be allowed to serve his sentence in a community corrections program, this is a request for a modification of sentence under Ind. Code § 35-38-1-17. See State v. Porter, 729 N.E.2d 591, 593 (Ind. Ct. App. 2000), n. 1. Consequently, here, Keys was requesting the trial court modify his sentence by placing him in a community corrections program. And, since Keys did not file this request within 365 days of the date he began serving his sentence, he was required to obtain the prosecuting attorneys approval prior to filing his motion. He failed to do this.
[U]pon expiration of the 365-day limit outlined in I.C. § 35-38-1-17(b), notwithstanding any petitions filed by the defendant, the court loses further jurisdiction over the defendant insofar as the alteration of his sentence is concerned. Beanblossom v. State, 637 N.E.2d 1345, 1347 (Ind. Ct. App. 1994), trans. denied. If the prosecuting attorney should acquiesce in the motion for sentence modification under subsection (b) of the statute, the decision to grant or deny the motion is within the trial court's discretion. On the other hand, if the prosecuting attorney should oppose the motion for sentence modification, the trial court lacks authority to modify the sentence. Schweitzer, 700 N.E.2d at 492.
Porter, 729 N.E.2d at 592 593.
Thus, where the prosecutor does not acquiesce in a defendants motion for modification of sentence under Ind. Code § 35-38-1-17(b), the trial court is without the authority and jurisdiction to modify the sentence. Fulkrod, 735 N.E.2d at 854. Accordingly, the trial court lacked the authority to hear Keys Motion for Modification of Placement and properly denied the same.