Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015 Page 1 of 22

ATTORNEY FOR APPELLANT

Frederick Vaiana

Voyles, Zahn & Paul

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Derek L. Moore,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 22, 2015

Court of Appeals Case No.

49A05-1408-CR-398

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner

Cause No. 49G06-0410-FB-187118

Bailey, Judge.
Court of Appeals of Indiana | Opinion 49A05-1408-CR-398 |April 22, 2015 Page 2 of 22

Case Summary

[1] Derek L. Moore (“Moore”) appeals the trial court’s denial of his motion to 

correct error, which challenged the court’s denial of his petition for sentence 

modification. We hold that the trial court erred in finding that it did not have 

the authority to entertain Moore’s petition for sentence modification. However, 

we affirm the trial court’s judgment to deny Moore’s petition on its merits.

Issues

[2] Moore raises one issue on appeal, which we restate as: whether the trial court 

erred when it denied Moore’s petition for sentence modification because the 

trial court did not apply a recent statutory revision that provided Moore 

procedural, as opposed to substantive, relief. We also address an issue first 

raised in the State’s brief: whether Moore’s appeal should be dismissed as 

moot.

Facts and Procedural History

[3] On February 13, 2006, pursuant to a plea agreement, Moore pleaded guilty in 

cause number 49G06-0410-FB-187118 (“FB-7118”) to three counts of Robbery, 

as Class B felonies, and two counts of Unlawful Possession of a Firearm by a 

Serious Violent Felon, as Class B felonies. He also admitted to being a habitual 

offender. 
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[4] On March 16, 2006, the court imposed ten year sentences for each of the five 

Class B felony convictions and ordered that they be served consecutively. The 

court also enhanced Moore’s first Robbery conviction sentence by ten years 

because of his habitual offender adjudication. The result was an aggregate

sentence of sixty years. 

[5] On July 11, 2014, Moore petitioned the trial court to modify his sentence in FB7118.1

 The sentence modification statute under which Moore sought relief 

provides:

(c) 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.

Ind. Code § 35-38-1-17(c) (2014) (the “revised statute”). The revised statute 

became effective July 1, 2014. 

[6] On July 16, 2014, the court denied Moore’s petition, citing a prior version of 

Indiana Code section 35-38-1-17, which provides, in relevant part:

(b) If more than three hundred sixty-five (365) days have elapsed since 

the convicted person began serving the sentence and after a hearing at 

which the convicted person is present, the court may reduce or 

 

1 Moore’s petition was filed under both cause numbers FB-7118 and a separate case, 49G06-0410-FB-184033 

(“FB-4033”). In his petition, Moore did not request a sentence modification in FB-4033, but asked only that 

his sentence in FB-4033 be served concurrently with his sentence in FB-7118, as originally ordered by the 

court. Because Moore’s appeal from his petition was consolidated under FB-7118 and concerns only a 

narrow legal question, we focus on the facts of FB-7118. 
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suspend the sentence, subject to the approval of the prosecuting 

attorney. [. . . .]

I.C. § 35-38-1-17(b) (Supp. 2006). The court found that it lacked authority to 

entertain Moore’s petition because the prosecuting attorney had not consented 

to a modification. The court also noted that Moore’s crime and sentence 

occurred prior to 2014 and “[t]he new statutes, effective on July 1, 2014, do not 

have retroactive application.” (App. at 31.)

[7] On August 15, 2014, Moore filed a motion to correct error, arguing that the 

court had authority to entertain his petition because it was filed after the 

effective date of the revised statute. Moore argued that under the revised 

statute, the court had authority to modify his sentence without the prosecutor’s 

consent. 

[8] The court denied Moore’s motion to correct error, reasoning that a savings 

clause enacted in 2014 “clearly indicates the legislature’s intent that the new 

criminal code has no retroactive application.” (App. at 35.) The court’s order 

also stated that even if the court had authority to entertain Moore’s petition, it 

would not grant the petition “given the serious nature of these charges and the 

defendant’s criminal history[.]” (App. at 35.) 

[9] Moore now appeals.

Discussion and Decision
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Standard of Review

[10] A ruling on a motion to correct error generally is reviewed only for an abuse of 

discretion. Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). When a motion to 

correct error depends on a question of law, we review the trial court’s resolution 

of that question de novo. Id. Matters of statutory interpretation are reviewed de 

novo because they present pure questions of law. Gardiner v. State, 928 N.E.2d 

194, 196 (Ind. 2010).

[11] The overarching principle in statutory interpretation is to first decide “whether 

the legislature has spoken clearly and unambiguously on the point in question.” 

Sloan v. State, 947 N.E.2d 917, 922 (Ind. 2011) (quoting Rheem Mfg. Co. v. Phelps 

Heating & Air Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001)). If a statute is 

clear and unambiguous, we do not apply any rules of construction other than 

giving effect to the plain and ordinary meaning of the language. Id. Thus, we 

will not delve into legislative intent unnecessarily if no ambiguity exists. Id.

Mootness

[12] As an initial matter, the State argues that Moore’s appeal is moot because the 

trial court stated that, even if the revised statute applies, it would decline to 

grant Moore’s petition on the merits “given the serious nature of these charges 

and the defendant’s criminal history[.]” (App. at 35.) 

[13] A case is deemed moot when no effective relief can be rendered to the parties 

before the court. In re Lawrence, 579 N.E.2d 32, 37 (Ind. 1991). When the 

concrete controversy at issue has been ended or settled, or in some manner 
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disposed of, so as to render it unnecessary to decide the question involved, the 

case will be dismissed. Id. (citation and quotation marks omitted). Although 

moot cases are typically dismissed, Indiana courts have long recognized that a 

case may be decided on its merits under an exception to the general rule when 

the case involves questions of “great public interest.” Id. “Cases found to fall 

within the public interest exception typically contain issues likely to recur.”2 Id. 

[14] In his reply brief, Moore argues that if we hold that the revised statute applies to 

him, subsection (h) permits him to petition for sentence modification a second 

time. See I.C. § 35-38-1-17(h) (2014). Therefore, Moore argues that even 

though the court indicated that it would deny Moore’s petition on its merits, it 

is not unnecessary to decide the question in Moore’s case. We agree that the 

revised statute, if applicable, would provide Moore future opportunity for relief. 

Thus, Moore’s appeal is not moot. 

[15] Moreover, even if the statute did not contain an additional avenue for relief for 

Moore, the terms under which a convicted person may petition for sentence 

modification have implications for numerous other convicted persons whose 

offenses were committed prior to the effective date of the revised statute. 

Because of the statute’s wide applicability and the likelihood that the same issue 

 

2 Our supreme court has held that, unlike the federal mootness doctrine, it is not necessary under 

Indiana law that an issue of great public interest is one that is capable of repetition, but likely to 

evade review. Lawrence, 579 N.E.2d at 37 n.2. 
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will appear again before this Court, Moore’s case, even if moot, falls within the 

public interest exception.

[16] We turn now to the substance of Moore’s appeal.

Applicability of Revised Statute

[17] Moore argues on appeal that, because the Indiana Code section under which 

Moore filed his petition was recently revised so that prosecutorial consent is not 

required, the trial court erred when it found that it had no authority to modify 

or reduce his sentence absent the consent of the prosecutor. 

[18] In 2013, the Indiana General Assembly passed substantial revisions to the 

Indiana criminal code. See Pub. L. No. 158-2013 (2013). As a result of the 

2013 bill and further revisions passed in 2014, Indiana Code section 35-38-1-17 

was amended to remove the need for prosecutor approval when a convicted 

person seeks a sentence modification more than 365 days after he or she began 

serving his or her sentence. See Pub. L. No. 158-2013, § 396 (2013); Pub. L. 

No. 168-2014, § 58 (2014).

[19] The revised statute states:

(c) 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.

I.C. § 35-38-1-17(c) (2014). The revised statute became effective July 1, 2014.
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[20] Moore filed his petition on July 11, 2014, eleven days after the revised statute’s 

effective date. No provision in the revised Indiana Code section 35-38-1-17 

limits the statute’s application to persons convicted after July 1, 2014. 

Therefore, by the plain language of subsection (c), the trial court did not need to 

obtain the prosecutor’s consent to reduce or suspend Moore’s sentence. 

Accordingly, the trial court erred when it found that it did not have the 

authority to entertain Moore’s petition on its merits without the prosecutor’s 

consent.

[21] The State argues, however, that the revised statute does not apply to Moore 

because Moore was convicted and sentenced in 2006. The State contends that 

the laws in effect at the time of Moore’s offense, not the laws in effect at the 

time he filed his petition, govern his petition for sentence modification. 

[22] It is true that, as a general rule, courts must sentence a convicted person under 

the statute in effect at the time the person committed the offense. Payne v. State, 

688 N.E.2d 164, 165 (Ind. 1997). We disagree, however, that the general rule 

bars Moore’s petition from proceeding under the revised statute. We 

confronted the same argument in Willis v. State, 567 N.E.2d 1170 (Ind. Ct. App. 

1991), trans. denied. At the time Willis originally was sentenced, the 

modification statute “limited the time in which sentence modification could 

take place to a period within 180 days of sentencing.” Id. at 1171. However, 

before Willis filed his petition, the statute was amended to permit modifications 

more than 180 days after sentencing. Id. The trial court held that Willis was 

ineligible to seek modification under the new statute because his petition was 
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filed four years after he was sentenced – firmly outside the 180 day window 

provided in the old statute. Id. 

[23] On appeal, this Court acknowledged the general rule that the law in effect at the 

time a crime is committed controls sentencing, but ultimately held that the 

general rule did not apply to Willis’s petition. Id. at 1172. The Willis court 

explained that, unlike prior cases in which the convicted persons sought 

sentencing under more lenient statutes enacted after the commission of their 

offenses, in Willis’s case

no question of sentence is involved. Rather, Willis merely sought to 

petition for modification of his sentence under provisions of a later 

enacted statute which enlarged the time in which he could so petition. 

In our view, the statute under which he sought relief was procedural, not 

substantive, was ameliorative, and he was not foreclosed from using 

that statute.

Id. (emphases added). In other words, because the sentence modification 

statute governs the process by which sentences are modified, not the imposition 

of sentences, the general rule is inapplicable.

[24] The Willis court’s conclusion that the change to the statute was “procedural, not 

substantive” was essential to the court’s holding. Id. This procedural aspect 

distinguished Willis’s case from an earlier case, State v. Crocker, 270 Ind. 377, 

385 N.E.2d 1143 (Ind. 1979), in which our supreme court held that a convicted 

person’s petition for modification could not proceed under a newly-enacted 

modification statute. The Willis court explained the distinction:
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In Crocker, there was a substantive change because the new statute gave 

the sentencing court new powers, that is, the power to reduce as well 

as suspend the remainder of the sentence. No such substantive change 

is involved here. At the time of sentencing Ind. Code § 35-38-1-17(b) 

permitted the sentencing court to modify a sentence, either by 

reduction or suspension, at any time within 180 days of sentencing. 

The amendment effective June 1, 1985, did not make any changes in 

the sentencing court’s power over the sentence, but merely permitted, 

under certain circumstances, the sentencing court to consider sentence 

modification of the same kind more than 180 days after sentencing.

Id. The Willis court held that because the legislature had merely altered the 

procedure by which a sentence could be modified and there was no change in 

the court’s sentencing power, Willis could petition for modification under the 

new statute.

[25] We find the reasoning in Willis applicable here. In this case, under the prior 

version of the statute, the prosecuting attorney acted as a gatekeeper for those 

petitions filed more than 365 days after a convicted person began serving the 

sentence imposed. See I.C. § 35-38-1-17(b) (Supp. 2006). In Beanblossom v. 

State, we held that the requirement that the prosecutor consent to a sentence 

modification was not a limit on court’s sentencing power. 637 N.E.2d 1345, 

1348 (Ind. Ct. App. 1994), trans. denied. The court explained:

The legislature was free, through the statute, to give the trial court 

authority to render a modification of the sentence with whatever 

conditions and within whatever time it deemed appropriate. The 

legislature chose to subject the authority to reduce or suspend a 

sentence to the approval of the prosecuting attorney if 365 days has 

passed. Even though the authority to modify is subject to such a 

condition, the statute does not take judicial power away from the trial court 

and give it to the prosecuting attorney. The statute gives the sentencing 
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court authority, subject to certain conditions, to change the sentence of 

the defendant after the court has pronounced sentence and after the 

defendant has begun to serve that sentence.

Id. (emphasis added). Beanblossom makes clear that the prosecutor’s consent, 

much like the timeframe in Willis, is not a substantive restriction on the trial 

court’s sentencing power, but a condition imposed by the legislature.3

[26] In this case, when the General Assembly revised the statute to remove the need 

for prosecutorial consent, it lifted a procedural barrier that prevented petitions 

from reaching the trial court for review on their merits and “did not make any 

changes in the sentencing court’s power over the sentence.” Willis, 567 N.E.2d 

at 1172. Thus, the recent revision to the sentence modification statute 

implemented a procedural change to a procedural statute. Accordingly, Moore 

is not barred from bringing his petition under the revised statute simply because 

he was convicted and sentenced before the revised statute’s effective date. 

[27] The State contends, however, that because Moore seeks to modify a sentence 

imposed in 2006, “[Moore] is asking for a retroactive or a retrospective 

 

3 We acknowledge that in Morris v. State, 936 N.E.2d 354 (Ind. Ct. App. 2010), trans. denied, we 

held that a change to the sentencing modification statute that gave the trial court “the ability over 365 

days after sentencing to move a petitioner from the Department of Correction to community 

corrections without the prosecutor’s approval” was “not merely procedural.” Id. at 357. However, 

the specific provision of Indiana Code section 35-38-1-17(b)(2001) interpreted in Morris contained 

language not at issue here, specifically, language that gave the court certain modification powers 

based on the convicted person’s original sentencing date. Id. at 356. We find Morris distinguishable 

and Beanblossom’s discussion of the trial court’s sentencing powers more persuasive.
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application of the [revised] statute.” (Appellant’s Br. at 17.) And because “the 

normal rules governing retroactive application of statutes and statutory 

construction would prevent [the revised statute] from applying to a crime that 

was committed prior to July 1, 2014[,]” the State argues that the revised statute 

does not apply to Moore’s petition. (Appellee’s Br. at 16). 

[28] A general rule of statutory construction is that, unless there are strong and 

compelling reasons, statutes will not be applied retroactively. State v. Pelley, 828 

N.E.2d 915, 919 (Ind. 2005). However, the State’s contention that Moore seeks 

retroactive application of the revised statute erroneously focuses on Moore’s 

conviction and sentencing date, rather than his petition date. Because the 

revised statute governs the sentence modification process, a petitioner’s original 

conviction or sentencing date is irrelevant to the determination of whether the 

statute is being applied retroactively. That is, in the context of sentence 

modification, the petition date is the critical date. Here, Moore filed his 

petition on July 11, 2014, after the revised statute’s effective date. Accordingly, 

his petition is not barred. 

[29] Of course, the fact that the revised statute applies to petitions filed on or after 

July 1, 2014 does not mean that the trial court is obligated to grant Moore a 

sentence modification or even conduct a hearing before denying the petition on 

its merits.

4

 Here, the court definitively stated that, regardless of the revised 

 

4

Subsection (g) of the revised statute provides that a “court is not required to conduct a hearing before 

reducing or suspending a sentence under this section if” certain qualifications are met. I.C. § 35-38-1-17(g)
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statute’s applicability, the court would deny Moore’s petition due to the 

seriousness of his crimes and his criminal history. But Moore may file his 

petition, and the court may entertain it under the new statutory terms. 

[30] The State also argues also that a savings clause enacted in 2014 bars any person 

who was convicted or sentenced before July 1, 2014 from petitioning under the 

revised statute. Indiana Code section 1-1-5.5-21 states:

(a) A SECTION of P.L.158-2013 or HEA 1006-2014 does not affect:

(1) penalties incurred;

(2) crimes committed; or

(3) proceedings begun;

before the effective date of that SECTION of P.L.158-2013 or HEA 

1006-2014. Those penalties, crimes, and proceedings continue and 

shall be imposed and enforced under prior law as if that SECTION of 

P.L.158-2013 or HEA 1006-2014 had not been enacted.

(b) The general assembly does not intend the doctrine of amelioration 

(see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any 

SECTION of P.L.158-2013 or HEA 1006-2014.

I.C. § 1-1-5.5-21 (Supp. 2014) (the “savings clause”). The revisions to Indiana 

Code Section 35-38-1-17 occurred pursuant to Public Law 158-2013 and House 

 

(emphasis added). However, because the court here neither reduced nor suspended Moore’s sentence, 

subsection (g) is inapplicable in this case and the court did not need to meet the requirements of subsection 

(g) before declining to conduct a hearing. In addition, subsection (d)’s language “[i]f the court sets a hearing 

on a petition under this section” indicates that a hearing need not be granted, unless the court finds that

reduction or suspension of the convicted person’s sentence is appropriate and the requirements of subsection 

(g) are not met. I.C. § 35-38-1-17(d). 
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Enrolled Act 1006-2014.5 See Pub. L. No. 158-2013, § 396 (2013); Pub. L. No. 

168-2014, § 58 (2014).

[31] The State argues that because Moore’s crimes were committed and his penalty 

was imposed before July 1, 2014, subsections (a)(1) and (a)(2) of the savings 

clause bar the revised statute from affecting his case. The State also argues that 

Moore’s petition was not a “proceeding begun” after July 1, 2014, but “a 

continuation of a ‘proceeding’ begun earlier, namely the criminal case filed 

under lower court cause number [FB-7118.]” (Appellee’s Br. at 15.) 

Therefore, the State argues that subsection (a)(3) of the savings clause also bars 

Moore’s petition.

[32] Moore’s sentence modification proceeding began when he filed his petition on 

July 11, 2014, after the effective date of the statute. Moore’s petition therefore 

is not barred by subsection (a)(3) of the savings clause. As for subsections (a)(1) 

and (a)(2), the plain language prevents any section of the new code from 

“affecting” penalties incurred or crimes committed before July 1, 2014. I.C. §§ 

1-1-5.5-21(a)(1)-(a)(2) (Supp. 2014). However, as discussed above, the revised 

statute regulates the procedure by which a person may request a sentence 

modification and the conditions under which the trial court may exercise its

sentencing power. In this way, the revised statute certainly “affects” the 

 

5 H.E.A. 1006-2014 was enacted in 2014. See Pub. L. No. 168-2014 (2014). 
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sentence modification process. But the revised statute does not “affect” a penalty 

imposed or crime committed simply because it changes the process by which a 

person seeks sentence modification. Subsections (a)(1) and (a)(2) of the savings 

clause thus do not bar persons convicted or sentenced prior to July 1, 2014 from 

filing petitions for sentence modification under the new statutory terms.

[33] Furthermore, we think the language of subsections (a)(1) and (a)(2) of the 

savings clause evinces the legislature’s intent that those defendants who 

committed offenses prior to July 1, 2014 may not take advantage of any 

ameliorative effects the new classification and sentencing scheme may have on 

their crimes or sentences. Indeed, subsection (b) of the savings clause clearly 

states: “The general assembly does not intend the doctrine of amelioration (see 

Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any SECTION of 

P.L.158-2013 or HEA 1006-2014.” I.C. § 1-1-5.5-21 (Supp. 2014).

[34] An ameliorative amendment is one in which the maximum penalty for a crime 

is reduced. Palmer v. State, 679 N.E.2d 887, 892 n.4 (Ind. 1997) (“The test to 

determine whether the legislature has enacted an ameliorative statute, where 

they have not expressly so stated, is whether the maximum penalty under the 

new statute is lower than the maximum penalty under the old.”). Here, 

however, the revised statute explicitly provides that when modifying a 

convicted person’s sentence, the court may only impose a sentence “that the 

court was authorized to impose at the time of sentencing.” I.C. § 35-38-1-17(c) 

(2014). The revised statute thus has no ameliorative effect because it does not 

reduce the maximum penalty available and only permits the court to impose a 
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sentence that was permissible at the time of sentencing. And because the 

revised statute has no ameliorative effect, the savings clause does not bar the 

revised statute’s application to petitions made by persons convicted or 

sentenced prior to July 1, 2014.6

[35] Neither the plain language of the revised statute nor the savings clause prevents 

a person convicted or sentenced prior to July 1, 2014 from petitioning for 

sentence modification under the new terms of revised Indiana Code section 35-

38-1-17, provided that all other terms of the statute are met. Accordingly, the 

trial court had the authority to entertain Moore’s petition for sentence 

modification without the consent of the prosecutor.

Conclusion

[36] Moore’s appeal is not moot. The trial court erred in finding that it did not have 

authority to entertain Moore’s petition for sentence modification on its merits. 

However, the trial court’s order also stated that the court would deny Moore’s 

petition due to the seriousness of his crimes and his criminal history; therefore, 

 

6 Because the revised statute would have no ameliorative effect on Moore’s sentence, we find this 

Court’s recent discussion of the savings clause in Marley v. State, 17 N.E.3d 335 (Ind. Ct. App. 

2014), trans. denied, inapplicable here. Marley, under Indiana Appellate Rule 8, asked this Court to 

review the appropriateness of his sentence in light of the new criminal code. Marley thus sought to 

take advantage of the ameliorative effects of the new sentencing provisions, which is not an issue 

here.
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we affirm the decision of the trial court to deny Moore’s petition for sentence 

modification. 

[37] Affirmed. 

Brown, J., concurs.

Robb, J., dissents in part and concurs in part with opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

Derek L. Moore,

Appellant,

v.

State of Indiana,

Appellee

April 22, 2015

Court of Appeals Case No.

49A05-1408-CR-398

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner

Cause No. 49G06-0410-FB-187118

Robb, Judge, dissenting in part and concurring in result in part

[38] I agree with the trial court that the 2014 amendments to Indiana Code section 

35-38-1-17 are not retroactive and that, absent the prosecutor’s approval, the 

trial court had no authority to entertain Moore’s petition for sentence 

modification. Therefore, I respectfully dissent from that part of the majority’s 

decision holding otherwise.

[39] I do not agree that Willis is applicable and determinative here. A trial court 

generally has no authority over a defendant after sentencing. Harper v. State, 8 

N.E.3d 694, 696 (Ind. 2014). Through Indiana Code section 35-38-1-17, the 

legislature has created an exception to that general rule and granted trial courts 

authority in certain circumstances to modify sentences. State v. Porter, 729 

N.E.2d 591, 593 n.1 (Ind. Ct. App. 2000). In Crocker, our supreme court 

addressed the limited authority granted to the trial courts under this statute 
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when it considered an amendment that enlarged the trial court’s authority from 

power to suspend the remainder of a sentence to the power to suspend or reduce

a sentence. The defendants had been sentenced prior to the amendment, but 

following the amendment, the trial court reduced each of their sentences. The 

State appealed, and the court held the amendment did not apply to the 

defendants because they had been sentenced prior to its enactment and there 

was no retroactivity provision in the amended statute. 270 Ind. 377, 378. 385 

N.E.2d 1143, 1144 (1979). Therefore, the only authority the trial court had 

with respect to their sentences was that granted by the statute in effect at the 

time they were sentenced—the power to suspend a sentence. Id. As the Willis

court noted, the amendment in Crocker was a substantive change “because the 

new statute gave the sentencing court new powers, that is the power to reduce as well 

as to suspend the remainder of the sentence.” 567 N.E.2d 1170, 1172 (Ind. Ct. 

App. 1991) (emphasis added). 

[40] In contrast, the amendment to the sentence modification statute considered in 

Willis was to enlarge the time in which the defendant could petition for 

modification. The court noted this amendment “did not make any changes in the 

sentencing court’s power over the sentence, but merely permitted . . . the sentencing 

court to consider sentence modification of the same kind more than 180 days 

after sentencing.” Id. (emphasis added). Thus, the court held the amendment 

was procedural, not substantive, and the defendant was eligible to petition for 

modification under the new timeline. Id. Notably, the Willis court did not hold 
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the sentence modification statute itself was procedural, just that the amendment 

under consideration made a procedural change. 

[41] More recently, Morris v. State, 936 N.E.2d 354 (Ind. Ct. App. 2010), discussed 

both Crocker and Willis in deciding whether an amendment to the modification 

statute allowing the trial court, after 365 days, to move a defendant from the 

Department of Correction to community corrections without prosecutorial 

consent should be applied retroactively to a defendant sentenced before it was 

enacted. Noting that the amendment considered in Willis “simply [gave] a 

convicted person additional time to file a petition,” the court held that the 

amendment it was considering was more akin to that in Crocker because “it 

[gave] the trial court authority it did not previously have . . . .” Id. at 357. 

Therefore, the amendment was not retroactive and did not give the trial court 

authority to modify the defendant’s sentence which was imposed prior to its 

enactment. 

[42] I believe the 2014 amendment is substantive like the amendments considered in 

Crocker and Morris. It grants a trial court authority it did not previously have—

the authority to unilaterally modify a sentence at any time. And I do not 

believe that this result conflicts with Beanblossom v. State, 637 N.E.2d 1345 (Ind. 

Ct. App. 1994), trans. denied.

7

 That case made it clear that the trial court has no 

inherent authority to modify a sentence: prior to the enactment of the sentence 

 

7

I note that although Beanblossom discussed whether the requirement of prosecutorial consent violated the 

separation of powers, the issue had not been preserved for appeal. Id. at 1347.
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modification statute, “a trial judge had no authority over a defendant after the 

judge had pronounced sentence, and the court had no authority to change the 

sentence of the defendant after the defendant had started to serve his time.” Id.

at 1347-48. As quoted by the majority, the case also stated that “the statute does 

not take judicial power away from the trial court and give it to the prosecuting 

attorney.” Slip op. at ¶ 25 (quoting Beanblossom, 637 N.E.2d at 1348). 

However, that is because the trial court only had the judicial power granted to it 

by the statute in the first place, that is, the power to decide whether to modify a 

sentence after 365 days if the prosecutor had consented to the modification. 

Following this most recent amendment, the trial court has the power to decide 

whether to modify a sentence unilaterally, a substantive change in the statute. 

[43] As the majority notes, the “overarching principle in statutory construction is to 

first decide whether the legislature has spoken clearly and unambiguously on 

the point in question.” Slip op. at ¶ 11. As the majority notes, no provision in 

Indiana Code section 35-38-1-17 limits its application to persons convicted after 

its effective date; however, there is also no provision for it be applied to persons 

convicted before its effective date. The general rule is that “[s]tatutes are to be 

given prospective effect only,” State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005), 

and because this is not a remedial or procedural statute and the legislature has 

not included a specific retroactivity provision, the general rule applies. 

[44] Moreover, even for procedural amendments, “retroactive application is the 

exception, and such laws are normally to be applied prospectively absent strong 

and compelling reasons.” Hurst v. State, 890 N.E.2d 88, 94 (Ind. Ct. App. 
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2008), trans. denied. It is important to note that section 35-38-1-17 was not 

amended in isolation. The revised statute was amended as part of a broad 

overhaul of the entire criminal code, an overhaul which included a savings 

clause, Ind. Code § 1-1-5.5-21, through which the legislature has clearly and 

unambiguously made it clear that it did not intend for the new criminal code to 

have any effect on proceedings for offenses committed before July 1, 2014. 

Marley v. State, 17 N.E.2d 335, 340 (Ind. Ct. App. 2014). There are no strong 

and compelling reasons to retroactively apply this one statute among the dozens 

that were simultaneously amended in the face of the legislature’s clear direction 

expressed through the savings clause regardless of the date Moore filed his 

petition. Moore’s crimes were committed and his penalty was incurred before 

the effective date of the new statute. Thus the savings clause rules out applying 

the revised statute to his petition for modification. 

[45] I would hold that Moore’s petition for modification was subject to the terms of 

the modification statute in effect at the time he was sentenced. According to 

those terms, prosecutorial consent was required, it was not given, and the trial 

court properly declined to entertain Moore’s petition. 

[46] Though we would do so for different reasons, I concur with the majority’s result 

affirming the trial court’s denial of Moore’s petition for sentence modification.