Court of Appeals of Indiana | Memorandum Decision 42A01-1410-CR-435| April 27, 2015 Page 1 of 5

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

Anthony Gonterman

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony Gonterman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 27, 2015

Court of Appeals Case No.

42A01-1410-CR-435

Appeal from the Knox Circuit Court

The Honorable Sherry B. Gregg 

Gilmore, Judge

Cause No. 42C01-9508-CF-43

Najam, Judge.
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Statement of the Case

[1] Anthony Gonterman appeals the trial court’s denial of his motion for 

appointment of special prosecutor and motion for modification of sentence. 

Gonterman presents two issues for our review:

1. Whether the trial court abused its discretion when it 

denied his motion for appointment of a special prosecutor.

2. Whether the trial court abused its discretion when it 

denied his motion for modification of sentence.

We affirm.

Facts and Procedural History

[2] On August 18, 1995, the State charged Gonterman with kidnapping, as a Class 

A felony; escape, as a Class B felony; and robbery, as a Class B felony. And on 

March 22, 1996, Gonterman pleaded guilty as charged. On April 11, 1996, the 

trial court entered judgment of conviction and sentenced Gonterman to an 

aggregate term of fifty-five years. Gonterman did not appeal his sentence.

[3] On April 7, 1997, Gonterman filed a “verified motion for reduction or 

suspension of sentence,” which the trial court denied. Appellant’s App. at 2. 

On October 23, 2006, Gonterman filed a motion for modification of sentence, 

and, after the State objected, the trial court denied that motion. On February 

26, 2007, Gonterman filed another motion for modification of sentence and a 

petition for the appointment of a special prosecutor. The State filed an 

objection to the petition for the appointment of a special prosecutor. Following 
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a hearing, the trial court denied Gonterman’s petition for appointment of a 

special prosecutor, and the court subsequently denied Gonterman’s motion for 

modification of sentence. Gonterman appealed the trial court’s denial of those 

motions, but his appeal ultimately was dismissed with prejudice.

[4] On July 8, 2014, Gonterman filed another motion for modification of sentence 

and a motion for appointment of special prosecutor, and the trial court denied 

those motions. This appeal ensued.

Discussion and Decision 

Issue One: Motion for Appointment of Special Prosecutor

[5] Gonterman first contends that the trial court abused its discretion when it 

denied his motion to appoint a special prosecutor. But we do not address that 

issue on the merits because, as the State points out, it is barred by res judicata.

The doctrine of res judicata prevents the repetitious litigation of 

disputes that are essentially the same. French v. French, 821 

N.E.2d 891, 896 (Ind. Ct. App. 2005). The principle of res 

judicata is divided into two branches: claim preclusion and issue 

preclusion, also referred to as collateral estoppel. Id.

* * *

Claim preclusion applies where a final judgment on the merits 

has been rendered and acts as a complete bar to a subsequent 

action on the same issue or claim between those parties and their 

privies. Id. When claim preclusion applies, all matters that were 

or might have been litigated are deemed conclusively decided by 

the judgment in the prior action. Dawson v. Estate of Ott, 796 

N.E.2d 1190, 1195 (Ind. Ct. App. 2003). The following four 
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requirements must be satisfied for a claim to be precluded under 

the doctrine of res judicata: (1) the former judgment must have 

been rendered by a court of competent jurisdiction; (2) the former 

judgment must have been rendered on the merits; (3) the matter 

now in issue was, or could have been, determined in the prior 

action; and (4) the controversy adjudicated in the former action 

must have been between the parties to the present suit or their 

privies. Small v. Centocor, Inc., 731 N.E.2d 22, 26 (Ind. Ct. App. 

2000), trans. denied.

Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. 

denied.

[6] Here, in 2007, Gonterman filed a petition for a special prosecutor, which the 

trial court denied. Gonterman appealed, and that appeal was dismissed with 

prejudice. It is well settled that a dismissal with prejudice is a dismissal on the 

merits, and, as such, it is conclusive of the rights of the parties. Lakeshore Bank 

& Trust Co. v. United Farm Bureau Mut. Ins. Co., 474 N.E.2d 1024, 1027 (Ind. Ct. 

App. 1985). Claim preclusion bars Gonterman’s challenge to the trial court’s 

denial of his petition for appointment of special prosecutor in this appeal. Herr, 

834 N.E.2d at 703.

Issue Two: Motion for Modification of Sentence

[7] Gonterman next contends that the trial court abused its discretion when it 

denied his motion for modification of sentence. Generally, a trial judge has no 

authority over a defendant after he pronounces sentence. Sanders v. State, 638 

N.E.2d 840, 841 (Ind. Ct. App. 1994). A limited exception is found in Indiana 

Code Section 35-38-1-17(b), which, at the time Gonterman committed the 
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instant offenses, provided that, after 365 days have elapsed since the date of 

sentencing, a trial judge may reduce or suspend the sentence subject to the 

approval of the prosecuting attorney.1 Id. Where the prosecuting attorney 

acquiesces in the motion for sentence modification under subsection (b), the 

decision to grant or deny the motion is within the trial court’s discretion. Id. 

[8] Here, more than one year had elapsed between the date of sentencing and 

Gonterman’s motion for modification of sentence, and the prosecutor did not 

acquiesce in the motion.2 Thus, the trial court did not have discretion to 

consider Gonterman’s motion. See id. Accordingly, Gonterman cannot show 

that the trial court abused its discretion when it denied his motion.

Affirmed.

Baker, J., and Friedlander, J. concur.

 

1

 Effective July 1, 2014, Indiana Code Section 35-38-1-17 was amended in relevant part to remove the 

requirement that the prosecutor approve of any sentence modification. It is undisputed that the former 

version of the statute applies here.

2

 In State v. Harper, 8 N.E.3d 694, 697 (Ind. 2014), our supreme court explained that, in the context of the 

former version of Indiana Code Section 35-38-1-17(b), a prosecutor’s acquiescence requires something more 

than mere inaction in the face of a defendant’s motion to modify his sentence. In Harper, the trial court held 

a hearing on the defendant’s motion to modify his sentence, and the court expressed its desire to modify the 

sentence should the prosecutor approve. The prosecutor requested time to consider the motion, and the trial 

court told the prosecutor to let the court know its position within one week. The prosecutor did not express 

any position to the trial court within the time allotted, and the court granted the motion. On appeal, our 

supreme court held that “the prosecutor’s conduct and communications adequately conveyed the ‘approval 

of the prosecuting attorney’ required in Indiana Code section 35-38-1-17(b), and that the trial court did not 

err in proceeding to grant the defendant’s motion for sentence modification.” Id.