COA: Man can petition for sentence modification under new statute

April 22, 2015
The Indiana Court of Appeals decided Wednesday that a man sentenced in 2006 could petition for a sentence modification under a new 2014 statute that no longer required prosecutorial consent. But the judges decided that his petition for sentence modification should be denied. 
In Derek L. Moore v. State of Indiana, 49A05-1408-CR-398, Derek Moore filed a petition on July 11, 2014, to modify his 60-year sentence, made in 2006, for robbery and other crimes. Just 10 days prior to filing his petition, I.C. 35-38-1-17 was revised to remove the requirement that the prosecuting attorney must approve a court’s reduction or suspension of a defendant’s sentence. The prosecuting attorney requirement was in effect at the time Moore committed his crimes and was sentenced. 
The trial court, believing the previous version of the statute applied to Moore’s petition, denied his request because the prosecuting attorney did not consent to a modification. It also noted that the overhauled criminal code that took effect July 1, 2014, do not have a retroactive application thanks to a savings clause inserted by legislators.  The judge denied Moore’s petition to correct error and noted that even if it had the authority to entertain the petition, it would deny it given the serious nature of his charges and his criminal history. 
The majority of the Court of Appeals concluded that Moore is allowed to file his petition under the 2014 statute because it’s the filing date that is applicable, not the date of the crime or the sentence. The majority likened the revised statute to a procedural one, as it would not affect the imposition of the sentence because Moore would still be subject to a sentence the court was authorized to impose at the time of sentencing. The majority also concluded that the savings clause is not applicable. 
So, although the trial court erred in finding it did not have authority to entertain Moore’s petition, the Court of Appeals affirmed the denial of granting the petition, citing the trial court’s reasoning based on Moore’s criminal history and the crimes at issue.
Judge Margret Robb dissented in part, finding that the trial court was correct and should have relied on the statute in effect at the time of Moore’s sentencing, not the 2014 version. She also noted that the Legislature clearly and unambiguously made it clear that it did not intend for the overhaul of the criminal code to have any effect on proceedings for offenses committed before July 1, 2014. She did agree with her colleagues that Moore’s petition should be denied. 

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