Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 1 of 8

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

Gary Amick

Branchville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gary Amick,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

March 29, 2019

Court of Appeals Case No.

18A-CR-2371

Appeal from the Scott Circuit 

Court

The Honorable Roger L. Duvall, 

Judge

Trial Court Cause No.

72C01-1512-F5-63

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 2 of 8

Case Summary

[1] Pro-se Appellant Gary Amick (“Amick”), who is incarcerated in the Indiana 

Department of Correction (“the DOC”), appeals the denial of his “Verified 

Petition for Examination for Treatment.”

1

 Amick presents the sole issue of 

whether the trial court erred in deferring to the DOC upon Amick’s claim that 

he was eligible for a post-conviction substance abuse examination. We affirm.

Facts and Procedural History

[2] On August 1, 2016, Amick pled guilty to a Level 5 felony possession of a 

handgun without a license under cause number 72C01-1512-F5-63 and a Class 

C felony dealing in a scheduled IV controlled substance under cause number 

72C01-1405-FA-7. Pursuant to Amick’s plea agreement with the State, twelve 

other counts against Amick were dismissed, a petition to revoke a suspended 

sentence in another case was dismissed, and Amick received two consecutive 

sentences of four years. The plea agreement provided that the fixed terms were 

to be fully executed in the DOC.

[3] At the sentencing hearing on September 12, 2016, Amick’s counsel requested a 

recommendation to the DOC that Amick be allowed to participate in a 

purposeful incarceration program. The prosecutor responded that the State was 

not specifically agreeing to a sentence modification that would be contingent 

 

1

See App. Vol. II, pg. 23.
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upon completion of the purposeful incarceration program, but continued, “I 

guess if we could maybe put it at the end of his sentence.” (Tr. Vol. II, pg. 15.) 

The trial court advised Amick that, after Amick served eighteen months, the 

trial court would request a progress report from the DOC, and “if things look 

good from participation up there, then I can make the modification, put on the 

order saying you can participate in purposeful incarceration.” Id. at 16.

[4] On October 14, 2016, Amick filed a motion requesting that the trial court

recommend purposeful incarceration. On May 23, 2017, the trial court 

received and reviewed a progress report from the DOC. At that time, Amick 

had begun participation in a therapeutic community program and the trial court

made an entry into the Chronological Case Summary (“CCS”) indicating “it is 

in Defendant’s best interest to complete that program before consideration of a 

modification of sentence.” (App. Vol. II, pg. 11.)

[5] On January 15, 2018, Amick filed a notice of completion of his therapeutic 

community program, a “motion for order of evaluation,” a motion for court 

ordered evaluation, and a motion for modification of sentence. Id. at 13 – 14. 

On January 23, 2018, the trial court issued an order granting the motion for a 

court-ordered evaluation.2 On February 16, 2018, after the State filed its 

 

2 The CCS does not specify the legal authority upon which the order is based or the scope of the courtordered evaluation. It is not evident from the record that the evaluation was in fact conducted. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 4 of 8

response, the trial court denied Amick’s petition for sentence modification. 

Amick appealed. A panel of this Court affirmed the denial, concluding:

The plea agreement that Amick and the State agreed to, and the 

trial court accepted, provided for a fixed sentence of eight years. 

No other sentence was authorized by the plea agreement. 

Therefore, the trial court could not modify Amick’s sentence 

because the eight-year sentence was the only one it was 

authorized to impose.

Amick v. State, No. 18A-CR-1027, slip op. at 2 (Ind. Ct. App. Nov. 8, 2018). 

Amick petitioned for transfer to the Indiana Supreme Court, and that petition is 

pending.3

[6] Before the appellate opinion was handed down, Amick filed a series of motions 

in the trial court. On August 20, 2018, he filed a “Verified Petition for 

Placement in the Post-Conviction Forensic Diversion Program – Stay of 

Execution of Sentence.” (App. Vol. II, pg. 20.) The motion was summarily 

denied, as was Amick’s motion to reconsider. On September 11, 2018, Amick 

filed his “Motion for Evaluation and Placement into Addiction Treatment.” Id.

at 21. On September 17, 2018, Amick filed his “Verified Petition for 

Examination for Treatment.” Id. The trial court denied the motion, making 

the following CCS entry:

 

3 On February 25, 2019, the Indiana Supreme Court granted Amick’s motion to allow the filing of a belated 

petition to transfer.
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Defendant having filed his Petition for Examination for 

Treatment, Court now denies Defendant’s Petition and finds that 

Treatment and program issues should be the decision of the 

Department of Corrections at this time.

Id. Amick now appeals. 

Discussion and Decision

[7] As a threshold matter, we address the State’s request that Amick’s appeal be 

dismissed on res judicata grounds. “An issue which previously has been raised 

and determined adverse to the appellant’s position is res judicata.” Arthur v. 

State, 663 N.E.2d 529, 531 (Ind. 1996). The State asserts that, regardless of 

how Amick described the motion addressed by the order now on appeal, his 

ultimate intent is to secure a sentence modification. Amick’s petition to the 

trial court included the following prayer for relief:

Defendant, pro-se, hereby respectfully requests this Court to find 

him eligible for treatment, grant his request for treatment, certify 

to the Division of Mental Health that he may request treatment, 

order his examination by the Division pursuant to I.C. 12-23-7-3, 

and for all other relief just and proper in the premises.

(App. Vol. II, pg. 25.) The trial court’s order solely addressed the request for an 

examination, finding that decision to be within the purview of the DOC. To 

the extent that Amick argues on appeal that he is entitled to a change of 

placement, we do not address the matter, as his claim that he should have 

received sentence modification is pending in another court. We consider only 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 6 of 8

whether Amick was entitled to have the trial court order his examination by the 

Division of Mental Health and Addiction (“the Division”). See Ind. Code § 12-

21-1-1.

[8] In his pro-se motion, Amick requested that the trial court order his examination 

“pursuant to Indiana Code 12-23-6.1-1, 12-23-8.1-(1) (2) (3), & 12-23-10.1-(1) 

(2) & (3).” (App. Vol. II, pg. 23.) On appeal, Amick does not address Indiana 

Code Section 12-23-10.1, which permits “an individual who believes the 

[defendant] is a drug abuser” to request treatment. He presents cursory

arguments as to the other statutory provisions.

[9] Indiana Code Section 12-23-6.1-1, captioned “Request for treatment in lieu of 

prosecution or imprisonment,” permits a convicted felon who is a drug abuser 

to request treatment under the supervision of the Division, unless certain 

conditions exist (such as the offense is a forcible felony, or the person was

admitted to a specified treatment program on two or more occasions within the 

preceding two years). On appeal, Amick develops no argument beyond

asserting that he has an addiction issue and is not subject to one of the 

exclusionary conditions. 

[10] Amick also claims that he “meets the criteria set forth under Indiana Code 12-

23-8.1-3.” Appellant’s Brief at 8. According to Amick, he “clearly has an 

addiction issue that needs to be addressed” and “[u]nder Title 12, the legislative 

body has provided the Courts an avenue to allow treatment even after a 

conviction has been deemed.” Id.
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[11] Indiana Code Section 12-23-8.1-3, part of a chapter captioned “Treatment and 

Probation Following Criminal Convictions,” provides:

If an individual requests to undergo treatment or is certified for 

treatment, the court may order an examination by the division to 

determine whether the individual is a drug user or an alcoholic 

and is likely to be rehabilitated through treatment.

Indiana Code Section 12-23-8.1-4 provides:

The court may deny the request if after conducting a presentence 

investigation the court finds that the individual would not qualify 

under criteria of the court to be released on probation.

[12] A trial court generally has no authority over a defendant after sentencing. State 

v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). After issuing a sentencing order, 

which is a final judgment, a trial court retains only such continuing jurisdiction 

as permitted by the judgment or granted to the court by statute or rule. State v. 

Porter, 729 N.E.2d 591, 592 (Ind. Ct. App. 2000). Instead, after a sentence is 

pronounced, jurisdiction over the defendant goes to the DOC. Dier v. State, 524 

N.E.2d 789, 790 (Ind. 1988).

[13] To the extent that Amick claims Indiana Code Sections 12-23-6.1-1 and 12-23-

8.1-3 confer continuing jurisdiction upon the trial court, we observe that 

“statutory interpretation is a question of law and determinations in that regard 

are subject to de novo appellate review.” Higgins v. State, 855 N.E.2d 338, 341 

(Ind. Ct. App. 2006). Our primary goal is to ascertain the legislature’s intent 

and we look first to the statutory language itself and give effect to the plain and 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2371 | March 29, 2019 Page 8 of 8

ordinary meaning of the terms. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 

2016). “[W]e will not read into the statute that which is not the expressed 

intent of the legislature. As such, it is just as important to recognize what the 

statute does not say as it is to recognize what it does say.” N.D.F. v. State, 775 

N.E.2d 1085, 1088 (Ind. 2002) (citation omitted).

[14] In context, the statutes identified by Amick provide options to the trial court 

after a defendant has been convicted but before a sentence is imposed. The 

language employed does not include a mandatory term such as “shall.” Nor is 

there language suggesting applicability post-sentence. Although the Legislature 

can permit retention of continuing jurisdiction in a specific area, see Indiana 

Code Section 35-38-1-17 (the sentence modification statute), there is no 

language suggesting that it chose to do so with respect to post-sentencing 

physical or mental examinations. The trial court did not err in concluding that 

the decision whether to so examine Amick is within the province of the DOC.

[15] Affirmed.

Riley, J., and Pyle, J., concur.