The opinion
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 09/15/2017, 10:27 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Angela Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David L. Newson, September 15, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A05-1705-PC-1090
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy J. Barbar,
Appellee-Respondent. Magistrate
Trial Court Cause No.
49G02-9604-PC-48010
Barnes, Judge.
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Case Summary
[1] David L. Newson appeals the trial court’s denial of his motion for modification
of his seventy-three-year sentence for murder and class C felony carrying a
handgun without a license.1 We affirm.
Issue
[2] The sole issue is whether the trial court properly found that Newson was a
“violent criminal” and, therefore, not entitled to file a motion to modify his
sentence more than 365 days after his sentencing hearing, without first
obtaining the consent of the prosecuting attorney.
Facts
[3] On December 3, 1997, a jury found Newson guilty of murder and class C
felony carrying a handgun without a license. On January 8, 1998, the trial
court imposed maximum consecutive sentences of sixty-five years and eight
years, respectively, for an aggregate sentence of seventy-three years. Our
supreme court affirmed Newson’s convictions. Newson v. State, 721 N.E.2d 237,
239 (Ind. 1999).
[4] On September 2, 2016, Newson filed a motion to modify his sentences
requesting that his eight-year sentence be served concurrently with his sixty-
1
On June 12, 2017, Newson filed a Verified Motion to Incorporate by Reference and Take Judicial Notice of
Record from Prior Related Appeal (“Motion”). On June 15, 2017, this Court ordered Newson’s Motion held
in abeyance to be addressed by the writing panel designated to adjudicate this appeal. Because we determine
another issue to be dispositive in this appeal, we deny Newson’s Motion.
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five-year sentence. The State objected, and the trial court denied the motion for
modification of sentence. Newson now appeals.
Analysis
[5] Newson argues that the trial court erred in refusing to modify his sentence. We
review a trial court’s decision on a motion for sentence modification for abuse
of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances or it is a misinterpretation of the law.
Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
[6] Indiana Code Section 35-38-1-17, which governs the reduction and suspension
of sentences, was amended in 2015 to provide that it applies to defendants who
committed their offenses or were sentenced before July 1, 2014. See Woodford v.
State, 58 N.E.3d 282, 285 (Ind. Ct. App. 2016) (discussing history of Ind. Code
§ 35-38-1-17).
[7] Indiana Code Section 35-38-1-17(d)(1) defines a “violent criminal” as a person
convicted of any of the enumerated offenses, including murder. Section 35-38-
1-17(k) provides that, “not later than three hundred sixty-five (365) days from
the date of sentencing,” a violent criminal may file one motion for sentence
modification without the consent of the prosecuting attorney. After 365 days, a
violent criminal is ineligible to move for sentence modification without the
prosecuting attorney’s consent. I.C. § 35-38-1-17(k).
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[8] Newson is a “violent criminal” because he was convicted of murder. See I.C. §
35-38-1-17(d)(1). As a violent criminal, he was not entitled to file a petition for
sentence modification more than 365 days after his sentencing hearing without
the consent of the prosecuting attorney. Newson was sentenced in January of
1998. He did not file his motion for a sentence modification until September 2,
2016, far more than 365 days after he was sentenced. Pursuant to Indiana Code
Section 35-38-1-17(k), the trial court could only grant Newson’s request for a
modification of his sentence if Newson first obtained the consent of the
prosecuting attorney. Given the prosecuting attorney’s objection, the trial court
could not have granted Newson’s requested relief.
[9] Newson contends that a statutory ambiguity exists under the instant facts,
which ambiguity must be construed in his favor to avoid an absurd result.
Specifically, he argues that, because carrying a handgun without a license is not
an enumerated offense within Indiana Code Section 35-38-1-17(d), he is not a
“violent criminal” regarding that specific conviction. He argues that the trial
court could, therefore, have granted his requested relief because he was not
required to obtain the prosecutor’s consent to modification of his eight-year
sentence. We disagree.
[10] We review matters of statutory interpretation de novo because they present pure
questions of law. Gardiner, 928 N.E.2d at 196. In interpreting statutes, we take
words and phrases in their plain and usual meaning. I.C. § 1-1-4-1(1).
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[11] Indiana Code Section 35-38-1-17 unambiguously carves out an exception to the
general rule allowing for modification of sentences where a person is a “violent
criminal” and provides no temporal or other limitation that evinces a legislative
intention to qualify or parse the meaning of “violent criminal” under the instant
circumstances. As the State correctly explains in its brief, “The statute defines
the type [of] offender who may seek modification, not the specific crimes or
portions of sentences that may be modified.” Appellee’s Br. p. 8. Newson is no
less a “violent criminal” for purposes of Indiana Code Section 35-38-1-17(d)
because he was convicted of both murder and carrying a handgun without a
license. The trial court did not err in refusing to modify his sentence.
Conclusion
[12] The trial court did not abuse its discretion in denying Newson’s motion for
modification of sentence. We affirm.
[13] Affirmed.
May, J., and Bradford, J., concur.
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