APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
JOHN R. REED, JR.
Tell City, Indiana Attorney General of Indiana
ZACHARY J. STOCK
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JOHN R. REED, JR., )
vs. ) No. 49A05-0301-PC-20
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9003-CF-39054
September 30, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
On December 1, 1992, John R. Reed, Jr. pleaded guilty to Conspiracy to
Deal Cocaine With Intent to Deliver, a Class A felony, and on January
15, 1993, the trial court sentenced him to serve a term of thirty
years. More than ten years later on December 20, 2002, Reed filed
his Verified Petition for Reduction of Sentence under Indiana Code Section 35-38-1-17(b), seeking
a four-year reduction of his sentence. On December 27, 2002, the trial
court denied his petition because the State had not agreed to a sentence
modification as required by Indiana Code Section 35-38-1-17(b). Reed then filed his
Notice of Appeal.
But before this court acquired jurisdiction, Reed continued to litigate in the trial
court. First, he filed a Verified Motion to Reconsider Courts Jurisdiction to
Modify Sentence (hereinafter first motion to correct error) and raised state and federal
constitutional attacks on Indiana Code Section 35-38-1-17(b).
See footnote When the trial court denied
that motion, he then filed a Verified Motion to Correct Error and For
a More Definite Finding of Facts and Conclusions of Law (hereinafter second motion
to correct error), asking the court to clarify its prior ruling, which the
court also denied. This appeal ensued.See footnote
Reed presents the following issues for review:
1. Whether Indiana Code Section 35-38-1-17(b), which requires approval of the prosecuting attorney for
any sentence modification filed 365 days after a defendant began serving his sentence,
violates the Indiana Constitutions separation of powers provisions.
2. Whether the Marion County Prosecutor applies Indiana Code Section 35-38-1-17(b) in a manner
which violates both the Indiana and United States Constitutions.
We affirm. DISCUSSION AND DECISION
Statutory Framework and Standard of Review
Reeds constitutional challenges focus on the statutory requirement that the prosecutor approve a
sentence modification which occurs more than 365 days after the defendant began serving
the sentence imposed by the trial court. Specifically, Reed attacks Indiana Code
Section 35-38-1-17(b), which provides:
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. However, if in a sentencing hearing for
a defendant conducted after June 30, 2001, the court could have placed the
defendant in a community corrections program as an alternative to commitment to the
department of correction, the court may modify the defendants sentence under this section
without the approval of the prosecuting attorney to place the defendant in a
community corrections program under IC 35-38-2.6.
As our supreme court stated in State v. Costas, 552 N.E.2d 459, 461
(Ind. 1990): I. Separation of Powers
Appellate review of [state and federal] constitutional challenges to statutory enactments is governed
by well-established principles[.] In considering  constitutional challenges, we accord [the statute]
with every reasonable presumption supporting its validity and place the burden upon the
party challenging it to show unconstitutionality. Before a statute will be declared
repugnant to the constitutions its fatal constitutional defects must be clearly apparent.
A statute is not unconstitutional simply because the court might consider it born
of unwise, undesirable, or ineffectual policies.
Reed first asserts that Indiana Code Section 35-38-1-17(b) violates Article I, Section 12,
Article III, Section 1, and Article VII, Sections 1 and 8 of the
Indiana Constitution and claims that the legislature has unconstitutionally divested the judiciary of
its powers. He contends further that, under those constitutional provisions, the trial
court in this case had jurisdiction to modify his sentence without approval of
the prosecutor. We cannot agree.
As the State points out, although Reed may couch his arguments in somewhat
different terms, this court has rejected the same or similar separation of powers
arguments Reed now presents in
Beanblossom v. State, 637 N.E.2d 1345 (Ind. Ct.
App. 1994), trans. denied, and, subsequently, in Schweitzer v. State, 700 N.E.2d 488
(Ind. Ct. App. 1998), trans. denied. While Reed relies heavily on Judge
Sullivans concurring in result opinion in Schweitzer, Reed has not presented arguments to
convince us that the majority opinions in Beanblossom and Schweitzer require reconsideration.
In addition, more recently in State v. Fulkrod, 753 N.E.2d 630, 633 (Ind.
2001), our supreme court unambiguously held that, under Indiana Code Section 35-38-1-17(b), a
trial court lacks jurisdiction to modify a defendants sentence if more than 365
days have elapsed since that defendant began serving his sentence and the prosecutor
does not approve the modification. Given the clear precedent on the constitutional
attacks Reed raises, we reject his contention that Indiana Code Section 35-38-1-17(b) violates
the separation of powers.
II. I.C. § 35-38-1-17(b) as Applied in Marion County
Next, Reed maintains that subsection (b) of the statute, as applied in Marion
County, violates Article I, Sections 12, 18 and 23 of the Indiana Constitution
and the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. In particular, Reed contends that the Marion County Prosecutor, through his
office, discriminates against persons convicted and sentenced in Marion County by objecting to
all requests for a sentence modification under Indiana Code Section 35-38-1-17(b). He
claims that this alleged blanket policy violates our Constitutions due course of law
provision under Article I, Section 12, constitutes vindictive justice in violation of Article
I, Section 18, and discriminates against offenders who are tried in Marion County
in violation of both Article I, Section 23 and the Equal Protection Clause.
However, Reeds as applied challenge must fail because there is no evidence in
the record to support the factual allegation on which his constitutional arguments hinge,
namely, that the Marion County Prosecutor has adopted a blanket policy of denying
any request for a sentence modification under subsection (b). Without evidence in
the record to support Reeds factual allegation, any opinion from this court examining
the constitutionality of such a policy would be purely advisory in nature.
This court does not render advisory opinions. Lineberry v. State, 747 N.E.2d
1151, 1155 (Ind. Ct. App. 2001). Therefore, Reeds constitutional attack on the
manner in which subsection (b) is applied in Marion County also fails.
ROBB, J., and MATHIAS, J., concur.
In Reeds first motion to correct error, he correctly notes
that under Indiana Appellate Rule 8, the Court of Appeals does not acquire
jurisdiction over a case until the date the trial court clerk issues its
Notice of Completion of Clerks Record. Because the trial court clerk had
not issued that notice on the date Reed filed both his first and
second motions to correct error, the trial court had jurisdiction to rule on
Footnote: Reed filed a premature Notice of Appeal. Specifically, he first
filed his Notice of Appeal and then filed his first and second motions
to correct error, both of which the trial court denied. As this
court held in
Haverstick v. Banat, 165 Ind. App. 275, 331 N.E.2d 791,
974 (1975), the premature filing of a preacipe does not defeat our jurisdiction.
In that case, where a party filed a praecipe and then filed
a motion to correct error, we determined that the prematurely filed praecipe was
continuing in nature, was in effect when the motion to correct error was
filed and subsequently denied, and therefore served to bring those matters into the
record for appeal. Id. Because the Notice of Appeal replaces the
praecipe, see Ind. App. Rule 2(I), we apply the reasoning in Haverstick here.
Thus, while Reeds Notice of Appeal was premature, all matters raised in
his subsequent motions to correct error, namely, his constitutional claims, are before us
on appeal. See Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992)
(observing that a party may raise the constitutionality of a criminal statute at
any stage); see also Beanblossom v. State, 637 N.E.2d 1345, 1347 (Ind. Ct.
App. 1994) (addressing constitutional challenges to Indiana Code Section 35-38-1-17(b) raised by pro
se defendant for first time on appeal), trans. denied.
Judge Sullivan suggested in his concurring in result opinion that
subsection (b) of the statute seems to transfer the power to confer jurisdiction
from the legislative branch to the executive branch in violation of Art. 3,
§ 1 of the Indiana Constitution.
Schweitzer, 700 N.E.2d at 492-92 (Sullivan,
J., concurring in result).