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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. ATTORNEYS FOR APPELLANT: GREGORY F. ZOELLER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

FILED
Feb 20 2009, 9:41 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLEE: JULIE ANN SLAUGHTER Marion County Public Defender Agency Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
STATE OF INDIANA, Appellant-Plaintiff, vs. JOSEPH COLEMAN, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 49A02-0808-CR-772

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Reuben Hill, Judge Cause No. 49F18-0104-DF-94176

February 20, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE The State appeals the trial court's March 3, 2008 order modifying to a class A misdemeanor Joseph Coleman's January 23, 2002 conviction of resisting law enforcement, as a class D felony to a class A misdemeanor. We reverse. ISSUE Whether the trial court had authority to issue its order of modification. FACTS On April 27, 2001, the State charged Coleman with Count I, battery with injury on a police officer, a class D felony; Count II, resisting law enforcement by force with bodily injury, a class D felony; and Count III, resisting law enforcement as a class A misdemeanor. On January 23, 2002, Coleman tendered to the trial court his plea

agreement with the State whereby he agreed to plead guilty to Count II, resisting law enforcement as a class D felony, and the State agreed to dismiss the other two counts. The plea agreement specified that with respect to sentencing, the State would recommend as follows: Open to argument for misdemeanor sentencing 365 d. cap of 180 d. executed (open to placement) Suspended portion of sentence on probation 40 hours of CSW Letter of apology to Officer Michael Nichols, MCSD (N****) F/C to Court's discretion. (App. 19). After establishing the factual basis, the trial court accepted the guilty plea and entered judgment of conviction, as a class D felony, on January 23, 2002. The trial court

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imposed a sentence of 365 days, with 30 days executed and 335 days suspended to probation; however, there was no discussion or argument as to alternative misdemeanor sentencing. Approximately two months later, on March 18, 2002, the probation department filed notice alleging that Coleman had failed to report for his intake interview, and a warrant was issued for his arrest. On August 28, 2002, the probation department filed a petition requesting that "substance abuse evaluation/treatment" be added as "a special condition of probation," based on Coleman's positive drug tests and with his agreement. (App. 25). The trial court so ordered. On March 10, 2003, the probation department filed notice alleging that Coleman failed to report for substance abuse

evaluation/treatment, had not reported to probation since November 13, 2002, and failed to pay probation fees. Another warrant was issued for his arrest. On August 29, 2003, a probation violation hearing was held. The trial court revoked Coleman's probation and ordered him to serve 240 days1 at the Department of Correction. On June 27, 2007, Coleman filed a "Motion to Modify Class D Felony Conviction to Alternate Misdemeanor Sentence." (App. 27). His motion noted that on March 5, 2007, Coleman was arrested and charged with the crimes of Driving While License Suspended with a Prior, as a Class A Misdemeanor and Carrying a Handgun Without a License, as a Class A Misdemeanor, which was elevated to a Class C felony as a result of his prior Class D felony conviction in this cause.

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Both from the bench and in its written order, the trial court specified that 60 days of his sentence was for Coleman's having lied to the trial court at the probation revocation hearing. (App. 53, 94).

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(App. 28-29). Coleman moved that his January 23, 2002, conviction be "modified to a Misdemeanor sentence," so that his current charge of carrying a handgun without a license would not "be elevated from" a class A misdemeanor to a class C felony. (App. 30, 29). After an out-of-court hearing, in which the State opposed modification, the trial court granted Coleman's motion on March 3, 2008. The State filed a motion to correct error on April 2, 2008, arguing that the trial court erred because it lacked authority to modify the conviction to a class A misdemeanor. Coleman filed a response. The trial court held a hearing on the State's motion on May 2, 2008, and took the matter under advisement. On May 30, 2008, the State filed a request for a ruling. No ruling was forthcoming, and the motion was deemed denied on June 2, 2008. See Ind. Trial Rule 53.3(A). The State then filed this appeal. DECISION Sentencing decisions rest within the sound discretion of the trial court and are reviewed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g on other grounds, 875 N.E.2d 218 (Ind. 2007). "With very little exception, the trial court has no authority over a defendant after it has pronounced sentence." Dier v. State, 524 N.E.2d 789, 790 (Ind. 1988) ("no authority for a trial court to reopen a sentencing almost five years after its imposition and . . . change" it). "Any continuing jurisdiction after final judgment has been pronounced must either derive from the judgment itself or be granted to the court by statute or rule." State v. Fulkrod, 735 N.E.2d 851, 852 (Ind. Ct. App. 2000) (citing Schweitzer v. State, 700 N.E.2d 488, 492 (Ind. Ct. App. 1998), trans. denied), aff'd. 753 N.E.2d 630, 633 (Ind. 2001) ("trial court 4

lacked authority to modify Fulkrod's sentence"); see also Beanblossom v. State, 637 N.E.2d 1345, 1347 (Ind. Ct. App. 1994) (citing Marts v. State, 478 N.E.2d 63 (Ind. 1985)), trans. denied. Fulkrod was sentenced on September 21, 1994, for voluntary manslaughter, and on May 26, 1999, Fulkrod filed a petition for modification of sentence. After a hearing, the trial court entered an order modifying sentence. The State appealed, arguing that the trial court erred because it no longer had jurisdiction over Fulkrod's case. We found the "controlling authority" to be Indiana Code section 35-38-1-17, and held that because "more than 365 days had expired from the date Fulkrod began to serve his sentence to the date he filed" his petition for modification, "and the prosecutor refused to grant his approval to the sentence modification,"2 the trial court "lacked jurisdiction to modify Fulkrod's sentence." Id. at 854. Here, Coleman was sentenced on January 23, 2002, after having been convicted of a class D felony. On June 27, 2007, more than five years after sentencing and almost four years after revocation of his probation and sentencing to DOC, Coleman moved to modify his class D felony conviction to a class A misdemeanor. The trial court entered its order of modification, over the State's objection, on March 3, 2008, which was six years after Coleman began serving his sentence and four-and-a-half years after his
Fulkrod noted that I.C.

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