Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral

estoppel, or the law of the case.

APPELLANT PRO SE

Angus Toney

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Angus Toney,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 18, 2020

Court of Appeals Case No.

19A-CR-2907

Appeal from the Wayne Circuit

Court

The Honorable David A. Kolger, 

Judge

Trial Court Cause No.

89C01-1010-FA-12

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020 Page 2 of 6

Case Summary

[1] Angus Toney (“Toney”), acting pro se, appeals his sentences for robbery, as a 

Class B felony,

1 and burglary, as a Class A felony.2

 We affirm.

Issues

[2] Toney raises the following two restated issues on appeal:

1. Whether the trial court abused its discretion when it 

denied his petition to modify his sentence.

2. Whether his sentence is inappropriate in light of the nature 

of the offense and his character.

Facts and Procedural History

[3] This Court discussed the facts of this case in Toney’s direct appeal:

On the evening of July 19, 2010, Toney and his accomplice, 

Chris Gregory (“Gregory”), entered into the home of G.R. while 

wearing bandanas over their faces. Once inside the home, Toney 

approached G.R., who was with her son C.R. Toney ordered 

C.R. to the floor and put his foot on the back of the boy’s head.

Toney put his knife to C.R.’s throat and told G.R. to “shut up” 

as he demanded her purse, money, and drugs. When she 

realized that she was still holding her mobile phone, G.R. 

attempted to dial 911. When Toney saw this, he grabbed G.R.’s 

1

Ind. Code § 35-42-5-1 (2010).

2

 I.C. § 35-43-2-1(2) (2010).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020 Page 3 of 6

hand, twisted the phone out of her hand, and threw the phone 

across the room. G.R. later testified that this caused her pain.

G.R.’s other son heard his mother screaming and came 

downstairs with a baseball bat. He struck Toney in the head with 

the bat, causing Toney to bleed. Toney left and sought treatment 

at the hospital. Drops of Toney’s blood were found at G.R.’s

house. DNA evidence obtained from this blood was later 

determined to match Toney.

On October 25, 2010, the State charged Toney with Class A 

felony burglary resulting in bodily injury and Class B felony 

robbery. Toney admitted to committing Class B felony burglary 

and Class B felony robbery, but a bench trial was held on the 

issue of whether the burglary resulted in bodily injury, which 

would elevate the burglary to a Class A felony. On July 25, 

2011, the trial court found Toney guilty of Class A felony 

burglary. The trial court sentenced Toney to forty years on the 

Class A felony burglary conviction and to a concurrent term of 

sixteen years on the Class B felony robbery conviction. Toney 

now appeals.

Toney v. State, 961 N.E.2d 57, 58 (Ind. Ct. App. 2012). We affirmed. Id. at 61.

[4] On August 19, 2019, Toney filed a motion to modify his sentence, and the trial 

court denied that motion on September 17, 2019. This appeal ensued.

Discussion and Decision

Motion to Modify Sentence

[5] Toney contends the trial court erred when it denied his August 19, 2019, 

petition to modify his sentence. We review a trial court’s decision regarding 

sentence modification for an abuse of discretion. Gardiner v. State, 928 N.E.2d 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020 Page 4 of 6

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.” Newson v. State, 86 N.E.3d 173, 174 (Ind. 

Ct. App. 2017) (citing Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014), trans. 

denied. However, we review matters of statutory interpretation de novo. 

Gardiner, 928 N.E.2d at 196.

[6] Indiana Code Section 35-38-1-17 governs the reduction and suspension of 

sentences and applies to defendants who committed their offenses or were 

sentenced before July 1, 2014. Subsection (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).

Newson, 86 N.E.3d at 174. A “violent criminal” is defined as a person 

convicted of certain enumerated offenses, including robbery, as a Class B 

felony, and burglary, as a Class A felony. I.C. § 35-38-1-17(d)(12), (13). 

[7] Because (1) Toney was convicted of robbery, as a Class B felony, and burglary, 

as a Class A felony, and is therefore a “violent criminal” as defined by the 

statute; (2) he committed, and was sentenced for, his offenses before July 1, 

2014; and (3) more than 365 days have passed since the date of his sentencing, 

he is ineligible to file a petition for sentence modification without the 

prosecuting attorney’s consent. See I.C. § 35-38-1-17(a), (d), (k). The 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020 Page 5 of 6

prosecuting attorney did not consent to Toney’s filing of a motion for sentence 

modification. Therefore, the trial court was without authority to modify 

Toney’s sentence and did not err in denying his motion. Id.; see also Newson, 86 

N.E.3d at 174; Manley v. State, 868 N.E.2d 1175, 1179 (Ind. Ct. App. 2007)

(citing State v. Fulkrod, 753 N.E.2d 630 (Ind. 2001)), trans. denied.

[8] Nor is Toney entitled to a revision of his sentence under the doctrine of 

amelioration, as he seems to argue. Toney asserts that, because the penalty for 

his crimes was decreased by 2014 amendments to the statute, he is entitled to 

the decreased penalty. Ind. Code § 35-38-1-17 (2014); P.L. 168-2014, Sec. 58, 

eff. July 1, 2014. However, generally, a defendant must be sentenced under the 

statute in effect at the time the defendant committed the crime. Harris v. State, 

897 N.E.2d 927, 928-29 (Ind. 2008). Under the doctrine of amelioration, there 

is an exception to that rule when the penalty for the crime is decreased by an 

amendment enacted after commission of the crime but prior to sentencing. Brown 

v. State, 947 N.E.2d 486, 489 n.4 (Ind. Ct. App. 2011) (citing Pritscher v. State, 

675 N.E.2d 727, 733-34 (Ind. Ct. App. 1996)), trans. denied. Here, it is clear that 

(1) Toney committed his crimes in 2010; (2) Toney was sentenced for those 

crimes in 2011; and (3) the penalty for those crimes was not reduced by

statutory amendments until 2014, well after Toney had already been sentenced. 

Thus, the doctrine of amelioration is inapplicable. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2907 | March 18, 2020 Page 6 of 6

Appellate Rule 7(B)

[9] Toney contends that his sentence is inappropriate in light of the nature of the 

offense and his character, and that we should therefore revise his sentence 

pursuant to our authority under Article 7, Sections 4 and 6 of the Indiana 

Constitution and Indiana Appellate Rule 7(B). However, when an issue is 

known and available but not raised on direct appeal, it is waived. See, e.g., 

Taylor v. State, 840 N.E.2d 324, 330-31 (Ind. 2006). This includes claims that a 

sentence was manifestly unreasonable. Id. Toney’s Rule 7(B) claim was 

available to him on his direct appeal, but he did not raise it. Toney, 961 N.E.2d 

57. Therefore, he has waived that issue. 

Conclusion

[10] The trial court did not err in refusing to modify Toney’s sentence; rather, it had 

no authority to do so given that more than 365 days had passed since the date 

of his pre-July 1, 2014 sentencing and he did not have consent from the 

prosecuting attorney to file a petition for sentence modification. I.C. § 35-38-1-

17(a), (d), (k). And Toney has waived his claim that his sentence should be 

revised because it was inappropriate, as that claim was available but not raised 

in his direct appeal. Taylor, 830 N.E.2d at 330-31. 

[11] Affirmed.

Crone, J., and Altice, J., concur.