A TTORNEYS FOR A PPELLANT Gregory F. Zoeller Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana A TTORNEY FOR A PPELLEE Timothy P. Broden Lafayette, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 79S02

- 1405

- CR

- 334

S TATE OF I NDIANA Appellant ( Plaintiff ),
v.

T AMMY S UE H ARPER Appellee ( Defendant ).

_________________________________ Appeal from the Tippecanoe Circuit Court, No. 79C01

- 1102

- FB

- 5 The Honorable Donald L. Daniel, Judge

_________________________________ On Transfer from the Indiana Court of Appeals, No. 79A02

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- CR

- 272

_________________________________ May 14, 2014
Dickson, Chief Justice.

The State of Indiana appeals an order of the Tippecanoe Circuit Court modifying the se ntence of defendant Tammy Sue Harper , claiming that the trial court lacked authority to modify

t he defendant 's sentence because more than 365 days had passed since the defendant was se ntenced and the prosecutor did not approve of the modification. T he Court of Appeals agreed and reversed the modification. State v. Harper , No. 79A02

- 1303

- CR

- 272 , 1 N.E.3d 219 (Ind. Ct. App. Dec. 30, 2013) ( table ). We now grant transfer and hold that the prosecutor's conduct, under the unique factors of this case, established the p re re quisite assent

.2 This case arises out of a motion for sentence modification. The trial court sentenced the defendant on September 19, 2011. The defendant filed the motion for modification at issue on December 5, 2012, and the trial court held a hearing on that motion on January 25, 2013

. At the hearing, the trial court , in apparent recognition of Indiana Code section 35

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- 17(b) (2008) , acknowledged that it lacked authority to modify the sentence but indicated its desire to do so u nless the prosecutor's office objected to the modification and planned to appeal : In reviewing this it was my thought that I think Ms. Harper is at a point in her life where [she] is no longer a threat to society and it seemed to me appropriate that we take her off that tax payer rolls and get her back in the community. I was thinking Home with Hope or Se eds of Hope or something like that. My concern is that I think I may have no legal basis to do that and so I kind of wanted to have a discussion about this. I from time to time tell [the deputy prosecutor] that I am going to do something and then I don't think that I have the legal power to do it which puts the Prosecutor's Office in the position to
e i ther having to appeal my order which nobody wants to do well [the deputy prosecutor] may want to do it just for the fun of it but

— but I don't want to keep p utting [the deputy prosecutor] in a position that he feels

— I put him a (inaudible) position where he is forced to do something. I would like to put Ms. Harper in Home with Hope to see if she makes it. If you tell me that your o ffice is going to appeal th at t hen I will save everybody the time and the energy and save the tax payers the money and I won't do it. And you prob ably want to think about that and talk about it with somebody else.

Tr. at 2

– 3. (emphases added). The deputy prosecutor who appeared a t the hearing responde d in the affirmative.

After an exchange with the chief probation officer regarding the defendant's chances of improvement at Home with Hope, the trial court resolved to give the defendant a chance and d irected the prosecutor's office to let it know of any objection within the near future:

I a m inclined to give it a try. Sometime in the next week or so if you have an opportunity to get back with me I will modify her sentence and over your screaming objection. . . . 1 The Court directs that the Tippecanoe County Prosecutor's Office provide more input to the Court with

-- in the near future [whenever ] that may be.

Id. at 5 (emphases added). T he prosecutor's office did not provide the trial court with any further input on the matter. O n March 1, 2013, the defendant filed a letter with the trial court noting that more than 30 days had elapsed since the entry of January 25 and inquiring as to the status of the

1 The State asserts that the trial court addressed this entire statement to the deputy prosecutor. The defendant does not dispute this point.3 trial court 's directi ve

. O n March 5, the trial court granted the defendant's motion for modific ation and ordered that the defendant be released from the Department of Correction on April 1 to serve the remainder of her sentence on probation. This prompted the State to file its appeal on March 25. The next day, the State requested that the trial court stay the modification pending resolution of the instant appeal, but the trial court denied the motion.

The State argues that the trial court lacked authority to mod ify the defendant's sentence as a matter of law. "Where the issue presented on appeal is a pure question of law, we review the
matter de novo." State v. Moss

- Dwyer , 686 N.E.2d 109, 110 (Ind. 1997)

. A trial judge generally has no authority over a defenda nt after sentenc ing ; however , the legislature may give the court authority, under certain circumstances, to modify a defendant's sentence

. See State v. Fulkrod , 753 N.E.2d 630, 63 2 (Ind. 2001) ; State ex rel. Abel v. Vigo Circuit Court , 462 N.E.2d 61, 63 (Ind. 1984)

. A notable exception is a statute sometimes referred to as the "shock probation sta tute," Dier v. State , 524 N.E.2d 789, 790 (Ind. 1988) , which gives the trial judge authority to r ecall the defendant within 365 days and reduce or suspend his s entence. I.C. § 35

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- 17 (a). But the statute in effect at the time of the offense 2 provided that a fter 365 days have elapsed , any modification by the trial court is " subject to the approval of the prosecuting attorney. "
I.C. § 35

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- 17(b).

On app eal, the State claims that the trial court lacked authority to modify the defendant's sentence because more than 365 days had passed since the defendant was sentenced and the prosecutor did not affirmatively approve t he modification. The State concedes that the prosec utor never expressly objected to a modification of the defendant's sentence but contends that the trial court acknowledged that it did not have such authority and "clearly knew that the prosecutor did not approve and that any modification wo uld be 'over [the prosecutor's] screaming obje ction.'" Appellant's Br. at 5 (q uoting Tr. at 5) (substitution by Appellant)

. The defendant counters

2 Indiana Code section 35

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- 17 was recently amended to eliminate the requirement for pros ecutorial approval past 365 days: "If more than three hundred sixty

- five (365) days have elapsed since the convicted person began serving the sentence, the court may reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing. The court must incorporate its reasons in the record." H.E.A. 1006 § 58, 118th Gen. Assem., 2nd Reg. Sess. (Ind. 2014) (emphasis ad ded) ; P.L. 168

- 2014 § 58; s ee I.C. § 35

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- 17( c ) (effective July 1, 2014).4 t hat t he prosecutor did approve the modification through acquiescence : "the overall tenor of the
trial cour t's comments at the January 25, 2013 hearing was that it intended to modify [the d efendant's] sentence absent an objection from the State and the State acquiesced in [the defen dant's ] motion by failing to file any objection to the motion within a reasonabl e time." Appellee's
Corrected Br

. at 3. Further, the defendant argues, t he trial court's reference to the State's "screaming objection" was "more of a facetious comment that the trial court, not the State, would bear the burden of any adverse consequence s stemming from the modification of [the defen dant's] sentence as the State never expressly consented thereto." Id

. at 5. Th e State replies that mere acquiescence does not satisfy the statutory requirement of prosecutorial approval and cha llenges the bin d ing authority of prior case law. 3

We find that , in the context of the interactions and communications between the trial court and the prosecutor in this case, the prosecutor's conduct satisfied the "approval" requir ement of the statute. The deputy prosecutor participated in the January 25 modification hearing. There, t he trial court specifically told the deputy prosecutor that the court lacked authority to
modif y the defendant's sentence , that it wanted to know whether the prosecutor's o ffice would approve, and that it would not modify the sentence over the prosecutor's objection

. In seeking the prosecutor's consent, the trial court also stated : "If you tell me that your office is going to a ppeal [the court's modification order] then I w ill save everybody the time and the energy and save the tax payers the money and I won't do it." Tr. at 3. The deputy prosecutor agreed with the trial

court that he wanted " to think about that and talk about it with somebody else." Id. At the end
of th e hearing, the trial court expressed it was "inclined to give it a try" and directed that the prosecutor's office provide "more input" to the court "in the n ear future" or "in the next week or

3 Several p rior case s from the Indiana Court of Appeals have generally recited that acquiescence may satisfy the statutory requirement for prosecu torial approval after 365 days have elapsed, but they do
no t actually hold that the absence of prosecutorial action is sufficient. See , e.g. , Hawkins v. State , 951 N.E.2d 597, 5 9 9

– 600 (Ind. Ct. App. 2011) ( stating that " i f the motion is made outside the 365

- day period, but the prosecutor acquiesces in the motion, the decision to grant or deny the motion is within the trial court's discretion , " but ruling that because the defendant's motion to modify was filed after expiration of 365 days , the prosecutor's objection precluded the grant of the modification ), trans. denied ; Keys v. State , 746 N.E.2d 405, 407 (Ind. Ct. App. 2001) , trans. not sought ; State v. Fulkrod , 735 N.E.2d 851, 854 (Ind. Ct. App. 2000) , aff'd , 753 N.E.2d 630 (Ind. 2001 ); State v. Porter , 729 N.E.2d 591, 592

– 93 (Ind. Ct. App. 2000) , trans. not sought ; Schweitzer v. State , 700 N.E.2d 488, 492 (Ind. Ct. App. 1998) , trans. denied ; Sanders v. State , 638 N.E.2d 840, 841 (Ind. Ct. App. 1994) , trans. not sought

. Further, these cases ult imately rely on Marshall v. State , 563 N.E.2d 1341, 1343 (Ind. Ct. App. 1990), trans. denied , which does not support this proposition.5 so. " Id. at 5. The deputy prosecutor agreed. Id. On March 5 , over five weeks later with no r esponse from the prosecutor's office , the trial court granted the defendant's motion for modific ation

.

T he State also contends that the trial court's inquiry regarding the State's intention to a ppeal "placed the prosecut or in an awkward position and sought an answer that the prosecutor lacked the authority to give," namely whether the prosecutor planned to appeal. 4 Appllant's R eply Br. at 3 n.1 . But t his misses the trial court's overall message, namely that it desired a nd planned to modify the defendant's sentence, unless the prosecutor had any objection.

The State compares this case to Fulkrod , where the trial court reserved the right to modify in the original sentencing order and nearly five years later modified th e sentence without the prosecutor's approval. 753 N.E.2d at 63 1

. We reversed the sentence modif ication order, e xplai n ing that the trial court had sought " to reserve a power that it did not possess beyond the 365

- day limit." Id. at 633. Here, in contras t, the trial court did not seek to reserve a power that it did not possess. Rather, the court acknowledged the need for consent of the prosecutor, expressed its desire to go forward with the sentence modification , and asked the prosecutor's office to inform it of any objection "in the next week or so"

— and the deputy prosecutor agreed.

Conclusion

For these reasons, we conclude that in the context of the facts of this case, the prosec utor's conduct and communicat ions adequately conveyed the "approval of the prosecuting atto rney " required in Indiana Code section 35

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- 17(b) , and that the trial court did not err in pr oceeding to grant the defendant's motion for sentence modification. Affirmed.

Rucker, David, Mas sa, Rush, JJ., concur

.

4 The Attorney General has the exclusive right and duty to represent the State in all criminal a ppeals. See Ind. Code § 4

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- 1 (2012) (" The attorney g eneral shall represent the state in all criminal cases in the Supreme Court

. . . ."); State v. Market , 158 Ind. App. 192, 203, 302 N.E.2d 528, 534 (1973) , trans. not sought

.