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.

ATTORNEY FOR APPELLANT

Joel C. Wieneke

Wieneke Law Office, LLC

Plainfield, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Christopher Lozier,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 30, 2015

Court of Appeals Case No.

15A01-1503-CR-105

Appeal from the Dearborn Circuit 

Court.

The Honorable Eugene A. Stewart, 

Senior Judge.

Cause No. 15C01-9303-CF-9

Friedlander, Senior Judge

[1] Christopher Lozier appeals from the trial court’s denial of his petition for 

sentence modification, contending that the trial court abused its discretion. We 

affirm and remand.

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[2] Lozier and two friends planned a robbery in order to obtain some extra cash. 

After several planning sessions, Lozier and Daniel Widener, who were eighteen 

years old and seventeen years old respectively, waited outside a bank for a night 

manager of the local Ponderosa to make the store’s evening deposit. After 

Vanessa Wells, Ponderosa’s night manager, arrived at the bank to make her 

deposit, shots were fired from a revolver supplied by the third friend, Shawn 

Davis, who was eighteen years old. Wells ultimately died from those initial 

and subsequent gunshot wounds. Lozier and Widener took the money and hid 

Wells’ body on the floorboard of the back seat of her car, drove the car near a 

landfill, hid the car in some trees, and disposed of other incriminating evidence 

in pools of water at the landfill. The handgun was tossed into the Ohio River.

[3] Widener and Lozier each pleaded guilty to felony murder and conspiracy to 

commit robbery. Sentencing was left to the discretion of the trial court. Lozier 

was sentenced to sixty years for his felony-murder conviction and to ten years 

for his conviction of conspiracy to commit robbery on January 7, 1994. The 

sentences were ordered to be served consecutively. 

[4] Widener successfully perfected a direct appeal which resulted in a reduction of 

his sentence. See Widener v. State, 659 N.E.2d 529 (Ind. 1995). Widener’s 

sentence was reduced to fifty years for the felony-murder conviction to be 

served concurrently with his ten year sentence on the conviction for conspiracy 

to commit robbery. Id.

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[5] Lozier was unable to pursue a direct appeal challenging his sentence. He 

attempted to file belated motions for appeal, pro se, but was unsuccessful in 

those attempts. Lozier’s family hired an attorney who filed a motion for 

belated appeal, but the trial court denied that motion. No appeal was taken 

from that denial. 

[6] On February 14, 2014, Lozier filed a petition for modification of sentence. The 

State objected to that petition on February 25, 2014. The trial court initially 

denied the motion on May 30, 2014, stating in its order that the motion was 

denied because of the terms of Lozier’s plea agreement. The trial court held a 

hearing on the petition on July 18, 2014 and November 13, 2014 after 

apparently discovering that Lozier’s sentence was left open to the trial court’s 

discretion. Lozier’s petition for sentence modification was denied on February 

23, 2015, the trial court’s order included the following language:

[Lozier] seeks a modification of his sentence by challenging the 

enhancement portion of his sentence for Murder. [Lozier] is not 

entitled to a reduction in sentence, whether it be as postconviction relief or as a request for sentence modification. 

[Lozier’s] request for modification of sentence is accordingly 

denied.

Appellant’s Appendix p. 103. Lozier now appeals.

[7] Lozier’s brief contains a detailed account of the significant efforts Lozier has 

made at reformation while serving his sentence. Although we appreciate 

Lozier’s efforts, given the procedural posture of Lozier’s appeal, we are 

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constrained by case law interpreting statutory language to deny him all of the 

relief he seeks. 

[8] The version of Indiana Code section 35-38-1-17(b) (West, Westlaw current with 

all 2015 First Regular Session of the 119th General Assembly legislation) in 

effect at the time Lozier filed his petition provides that “[i]f 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 suspend the sentence, subject to the approval 

of the prosecuting attorney.” Lozier’s February 14, 2014 petition was filed long 

after three hundred sixty-five days had elapsed since he began serving his 

sentence on January 7, 1994. Lozier did not have the approval of the 

prosecuting attorney as required by statute in that circumstance. 

[9] In Manley v. State, 868 N.E.2d 1175, 1179 (Ind. Ct. App. 2007), we quoted the 

Supreme Court’s opinion in State v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001), 

which held that pursuant to the statute “where 365 days have passed since the 

sentence was imposed, and the prosecutor has not approved of the requested 

sentence modification, ‘the trial court lack[s] authority to modify [the original] 

sentence.’” The trial court did not err by denying Lozier’s motion because it 

was without authority to grant it. 

[10] Lozier also notes the language of the trial court’s order denying relief in which 

the trial court states that Lozier is not entitled to a reduction of his sentence if 

brought as a petition for post-conviction relief. The State takes no position 

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regarding Lozier’s request that we remand this matter to the trial court to issue 

an order denying the petition for sentence reduction without making reference 

to Lozier’s entitlement to relief via post-conviction proceedings. Appellee’s Br. 

pp. 5-6 n.3. Because this language in the order appears to be extraneous, but 

could possibly be construed as potentially foreclosing Lozier’s opportunity for 

post-conviction relief, we remand the matter to the trial court to enter an order 

removing any reference to post-conviction relief proceedings.

[11] Judgment affirmed and remanded. 

Najam, J., and Altice, J., concur.

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