Jeffrey B. Buskirk v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

FILED

Pursuant to Ind. Appellate Rule 65(D), Sep 26 2016, 9:46 am

this Memorandum Decision shall not be

regarded as precedent or cited before any CLERK

Indiana Supreme Court

Court of Appeals

court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE

Jeffrey B. Buskirk Gregory F. Zoeller

Carlisle, Indiana Attorney General of Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeffrey B. Buskirk, September 26, 2016

Appellant-Petitioner, Court of Appeals Case No.

55A01-1602-CR-271

v. Appeal from the Morgan Superior

Court

State of Indiana, The Honorable Jack A. Tandy,

Appellee-Respondent. Special Judge

Trial Court Cause No.

55D02-9702-CF-43

Bradford, Judge.

Case Summary

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[1] In early 1998, Appellant-Petitioner Jeffrey B. Buskirk pled guilty to the murder

of his step-mother. Buskirk was subsequently sentenced to a sixty-year term of

imprisonment. On August 24, 2015, Buskirk filed a petition seeking a

modification of his sentence. Appellee-Respondent the State of Indiana (the

“State”) filed a written response in opposition to Buskirk’s petition on

November 2, 2015. The State reiterated that it opposed Buskirk’s petition

during the December 29, 2015 hearing held in connection to Buskirk’s petition.

The trial court denied Buskirk’s petition in a written order dated January 13,

2016.

[2] On appeal, Buskirk contends that the trial court abused its discretion in denying

his petition for modification of his sentence. Buskirk also contends that the

deputy prosecuting attorney assigned to his case committed prosecutorial

misconduct. Concluding that Buskirk has failed to prove either that the trial

court abused its discretion in denying his petition or that the deputy prosecuting

attorney committed prosecutorial misconduct, we affirm.

Facts and Procedural History

[3] On January 26, 1998, Buskirk pled guilty to murdering his step-mother.

Buskirk was eighteen years old at the time he committed the murder. On

March 6, 1998, Buskirk was sentenced to a sixty-year term of incarceration.

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[4] Buskirk filed a petition for a modification of his sentence on August 25, 2015. 1

The State filed a written response in opposition to Buskirk’s petition on

November 2, 2015. The trial court conducted a hearing on Buskirk’s petition

on December 29, 2015. During this hearing, the State reiterated that it was

opposed to any sentence modification. On January 13, 2016, the trial court

issued an order denying Buskirk’s petition for a modification of his sentence.

This appeal follows.

Discussion and Decision

I. Denial of Buskirk’s Petition for Sentence Modification

[5] Buskirk contends that the trial court abused its discretion in denying his petition

for a modification of his sentence. A trial court’s decision regarding a petition

for a modification of a sentence is reviewed for an abuse of discretion. Gardiner

v. State, 928 N.E.2d 194, 196 (Ind. 2010). An abuse of discretion occurs where

the decision is clearly against the logic and effect of the facts and circumstances

or when the trial court misinterprets the law. Heaton v. State, 984 N.E.2d 614,

616 (Ind. 2013).

[6] Buskirk claims that the State’s objection to his petition for a sentence

modification was untimely because it was not filed within twenty days of his

1

This was the second petition for a sentence modification filed by Buskirk. The first petition

was filed by Buskirk and denied by the trial court in 2012.

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petition. Buskirk relies on Indiana Rule of Trial Procedure 12(B). Trial Rule

12(B) provides that any defense to a claim raised in any pleading should be filed

“within twenty (20) days after service of the prior pleading[.]” The time

limitation set forth in Trial Rule 12(B) explicitly refers to the time allowed for

raising defenses to claims raised in pleadings. Trial Rule 7 provides that the

pleadings shall consist of: “(1) a complaint and an answer; (2) a reply to a

denominated counterclaim; (3) an answer to a cross-claim; (4) a third-party

complaint, if a person not an original party is summoned under the provisions

of Rule 14; and (5) a third-party answer.” Trial Rule 7 further provides that,

unless made during a hearing or trial, all other requests of the court shall be

made by written motion. “The motion shall state the grounds therefor and the

relief or order sought.” T.R. 7. As it does not qualify as any of the types of

pleadings specified by Trial Rule 7, a request for a sentence modification

qualifies as a motion before the trial court, not a pleading.

[7] Indiana Code section 35-38-1-17 outlines when an incarcerated individual can

request a sentence modification. The version of the statute that was in effect at

the time that Buskirk committed the murder of his step-mother, pled guilty, and

was sentenced provides that when a convicted person waits more than 365 days

after beginning to serve their sentence, any modification of the individual’s

sentence may only be made “subject to the approval of the prosecuting

attorney.” Ind. Code § 35-38-1-17(b) (1996). In addition, the version of

Indiana Code section 35-38-1-17 which was in effect when Buskirk filed his

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petition also requires consent from the prosecuting attorney.2 Neither version of

Indiana Code section 35-38-1-17 provides any time limitation in which a

prosecuting attorney must file his or her consent or objection to such a request.

[8] In early 1998, Buskirk pled guilty to and was convicted of the murder of his

step-mother. On March 6, 1998, the trial court sentenced Buskirk to a sixty-

year term of incarceration. Buskirk filed his petition requesting a modification

of his sentence on August 24, 2015. Because Buskirk’s request was filed more

than 365 days after he was sentenced, Buskirk was required to obtain the

prosecuting attorney’s consent before he could receive any modification of his

sentence. See Ind. Code § 35-38-1-17. On November 2, 2015, the prosecuting

attorney filed a written objection to Buskirk’s request for a modification of his

sentence. The trial court conducted a hearing on Buskirk’s request on

December 29, 2015, at which time the prosecuting attorney reiterated his

objection to Buskirk’s request. Buskirk has failed to establish on appeal that the

prosecuting attorney’s objection to his request for a sentence modification was

untimely. As such, we conclude that in light of the prosecuting attorney’s

objection to Buskirk’s request, the trial court did not abuse its discretion in

denying Buskirk’s request for a modification of his sixty-year sentence.

2

This version provides that when a violent criminal waits more than 365 days after being

sentenced to file a request for a sentence modification, the individual “may not file a petition

for sentence modification without the consent of the prosecuting attorney.” Ind. Code § 35-38-

1-17(k) (2015). The term “violent criminal” includes an individual convicted of the offense of

murder. Ind. Code § 35-38-1-17(d).

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II. Prosecutorial Misconduct

[9] Buskirk also contends that the deputy prosecuting attorney committed

prosecutorial misconduct. Buskirk raises this contention for the first time on

appeal. With regard to the appropriate standard of review for a claim of

prosecutorial misconduct that is raised for the first time on appeal, the Indiana

Supreme Court has held as follows:

Our standard of review is different where a claim of prosecutorial

misconduct has been procedurally defaulted for failure to

properly raise the claim in the trial court, that is, waived for

failure to preserve the claim of error. Booher v. State, 773 N.E.2d

814, 817-18 (Ind. 2002). The defendant must establish not only

the grounds for prosecutorial misconduct but must also establish

that the prosecutorial misconduct constituted fundamental error.

Id. at 818. Fundamental error is an extremely narrow exception

to the waiver rule where the defendant faces the heavy burden of

showing that the alleged errors are so prejudicial to the

defendant’s rights as to “make a fair trial impossible.” Benson v.

State, 762 N.E.2d 748, 756 (Ind.2002), quoted in [Castillo v. State,

974 N.E.2d 458, 468 Ind. 2012)] and [Cooper v. State, 854 N.E.2d

831, 835 (Ind. 2006)]. In other words, to establish fundamental

error, the defendant must show that, under the circumstances,

the trial judge erred in not sua sponte raising the issue because

alleged errors (a) “constitute clearly blatant violations of basic

and elementary principles of due process” and (b) “present an

undeniable and substantial potential for harm.” Id. The element

of such harm is not established by the fact of ultimate conviction

but rather “depends upon whether [the defendant’s] right to a fair

trial was detrimentally affected by the denial of procedural

opportunities for the ascertainment of truth to which he

otherwise would have been entitled.” Townsend v. State, 632

N.E.2d 727, 730 (Ind. 1994) (quoting Hart v. State, 578 N.E.2d

336, 338 (Ind. 1991)). In evaluating the issue of fundamental

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error, our task in this case is to look at the alleged misconduct in

the context of all that happened and all relevant information …

to determine whether the misconduct had such an undeniable

and substantial effect … [such] that a fair trial was impossible.

See Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002); Townsend,

632 N.E.2d at 730; see, e.g., Castillo, 974 N.E.2d at 469 n. 11

(noting closing arguments are perceived as partisan advocacy).

We stress that “[a] finding of fundamental error essentially

means that the trial judge erred ... by not acting when he or she

should have....” Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012).

Fundamental error is meant to permit appellate courts a means to

correct the most egregious and blatant trial errors that otherwise

would have been procedurally barred, not to provide a second

bite at the apple for defense counsel who ignorantly, carelessly,

or strategically fail to preserve an error. See Baer v. State, 942

N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to

prevail on a claim of fundamental error relating to prosecutorial

misconduct); Stevens v. State, 691 N.E.2d 412, 420 n. 2 (Ind.

1997); Wilson v. State, 222 Ind. 63, 83, 51 N.E.2d 848, 856 (1943).

Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (emphases in original, footnotes

omitted).

[10] Buskirk claims that the deputy prosecuting attorney committed prosecutorial

misconduct by misleading Buskirk’s father. Specifically, Buskirk argues that the

deputy prosecuting attorney led his father to believe that he would consent to a

sentence modification only to subsequently object to Buskirk’s petition. The

record, however, does not support Buskirk’s claim.

[11] With regards to his conversations with the deputy prosecuting attorney prior to

the hearing on Buskirk’s petition, Buskirk’s father testified as follows:

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But it was my understanding with [the prosecuting attorney] and

on the phone with [the deputy prosecuting attorney], they would

at least agree with this hearing, at least let him present his own

case. And that was something that I told them several times. I

thought it was time for him. He deserved the chance to at least

present to you to see if you think he’s grown or not.

Tr. p. 47. Additionally, the following exchange took place between Buskirk’s

father and the deputy prosecuting attorney on cross-examination:

Q: Okay. And you made some reference about that you

thought that this hearing was consented to. That the prosecution

has consented to this hearing today?

A: Yes.

Q: That was at least what you understood at the time, is that

correct?

A: Yes.… [B]ut basically, as I understood the law and what

[the prosecuting attorney] and I talked about was if no .. if you

guys didn’t agree to some kind of a hearing to give the Judge a

chance to hear the evidence, there’s nothing can be done. And

my understanding from talking to [the prosecuting attorney], and

from you, and he kept referring me to you, continuously, call [the

deputy prosecuting attorney] back. I always never knew for sure

your status, so I didn’t ever want to bother you, without [the

prosecuting attorney] saying to do that. And so .. yes, I thought

that was an agreement that you guys would finally let him have a

hearing date, not agree with anything, that that’s not what you were

doing at all, but you’d at least let the Judge hear the evidence and

see if the Judge felt like he might deserve a break or a lower case

of the sentence.

Tr. pp. 54-55 (emphasis added). Buskirk’s father further testified that

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But, I don’t think I recall specifically you said it was too early to

have another hearing. Because if it had been .. if I had got that

idea from our conversation, I would have tried to tell [Buskirk’s

mother] or anybody else, don’t waste your money yet. And if I

didn’t pick that up with my brain injury, sometimes not

everything would come through, and I would apologize if that

was your intention on that conversation.

Tr. p. 56.

[12] The above-quoted testimony indicates that, at most, the deputy prosecuting

attorney agreed to allow for a hearing on Buskirk’s petition. The above-quoted

testimony does not establish that the deputy prosecuting attorney agreed to a

sentence modification or that Buskirk’s father believed that the deputy

prosecuting attorney had indicated that he would consent to a sentence

modification. Because the record does not support Buskirk’s claim that the

deputy prosecuting attorney misled his father to believe that the deputy

prosecuting attorney would consent to Buskirk’s petition, we conclude that

Buskirk has failed to establish fundamental error. We therefore further

conclude that Buskirk has failed to prove that the deputy prosecuting attorney

committed prosecutorial misconduct.3

3

Furthermore, to the extent that Buskirk relies on his counsel’s statement that he believed that

“with the new laws that we felt that was an issue that was not an issue for objection,” tr. p. 4,

this statement seems to refer to changes in the law relating to sentence modifications that were

briefly in effect and not to any agreement by the deputy prosecuting attorney that he would

consent to the requested sentence modification. As it stands, the law that was in effect both at

the time Buskirk committed the murder of his step-mother and at the time he filed the underlying

petition for a sentence modification required consent of the prosecuting attorney before any

request for a sentence modification may be granted.

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Conclusion

[13] In sum, we conclude that the trial court did not abuse its discretion in denying

Buskirk’s petition for a sentence modification. We also conclude that Buskirk

has failed to prove that the deputy prosecuting attorney committed

prosecutorial misconduct. As such, we affirm the judgment of the trial court.

[14] The judgment of the trial court is affirmed.

Pyle, J., and Altice, J., concur.

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