Beanblossom v. State, 10A01-9401-CR-33

• Citation: 637 N.E.2d 1345
• Case Date: July 26, 1994
• Court: Court of Appeals of Indiana

Page 1345

637 N.E.2d 1345 Von A. BEANBLOSSOM, Jr., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 10A01-9401-CR-33. Court of Appeals of Indiana,
First District. July 26, 1994.
Transfer Denied Sept. 14, 1994.

Page 1346

Von A. Beanblossom, Jr., pro se.

Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Von A. Beanblossom, Jr., appeals the modification of his concurrent, forty-year, enhanced sentences for attempted murder and armed robbery, both class A felonies. We restate his allegations of error as follows:

I. A. Does Ind.Code 35-38-1-17(b), which gives the prosecuting attorney veto power over a judge, violate Article 3 § 22 and Article 7 § 1 of the Constitution of the State of Indiana?

B. Does I.C. 35-38-1-17(b) violate the due process clause of amendment XIV by denying the Defendant a fair decision maker in post-conviction proceedings?

C. Does I.C. 35-38-1-17(b) violate the Defendant's rights of equal protections of the laws and equal access to the courts?

II. Did the post-conviction court abuse its discretion by granting the State's motion to correct error and by sentencing the Defendant solely upon the prosecutor's decision?

We affirm.

The Supreme Court of Indiana affirmed Beanblossom's convictions and sentences on direct appeal in Beanblossom v. State (1988), Ind., 530 N.E.2d 741. Beanblossom then filed a pro se motion for the modification of his sentence, which the court below granted after a hearing. In its order, the court found, in pertinent part:

3. Since Defendant's incarceration with the Indiana Department of Corrections [sic] he has:

[a] Earned a High School Diploma maintaining a 3.54 GPA;

[b] Received an Outstanding Achievement Award for excellence in mathematics from the Indiana Council of Teachers of Mathematics;

[c] Earned credits from the Indiana University School of Continuing Studies;

[d] Earned a Vocational Drafting Certificate;

[e] Acquired employable computer skills;

[f] Received an offer of admission from Purdue University School of Electrical Engineering Technology[.]

4. The Defendant has generally received exemplary Offender Evaluation And Performance Reports during his incarceration and two members of the staff at the Indiana Youth Center appeared at the modification hearing to testify in his behalf, both acknowledging the rarity of such an appearance.

5. The Defendant is currently working in the data processing department at the Indiana Youth Center receiving on the job training in computer programming.

6. The Defendant has demonstrated a pattern of behavior consistent with evidence of rehabilitation.

7. The Defendant was sixteen (16) years of age at the time of the commission of the offense, has expressed remorse, and given the Defendant's efforts while incarcerated, it appears unlikely that the Defendant

Page 1347

would commit further offenses upon his eventual release from incarceration.

8. Applying the provisions of I.C. 35-50-2-2 to the underlying convictions of the Defendant, the Defendant must serve a minimum incarceration of ten (10) actual years in prison for his convictions of Class A Felonies.

9. Justice would be best served by a modification of the sentences imposed upon the Defendant.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the sentences imposed upon the Defendant, Von A. Beanblossom, Jr., should be and they are hereby modified as follows:

[a] For the offense of Attempted Murder, a Class A Felony, modification to a forty (40) year sentence with twenty (20) years suspended, the Defendant to be placed on probation for a period of ten (10) years upon his release from incarceration.

[b] For the offense of Armed Robbery, a Class A Felony, modification to a forty (40) year sentence with twenty (20) years suspended, the Defendant to be placed on probation for a period of ten (10) years upon his release from incarceration, this sentence to be served concurrently with the sentence imposed for Attempted Murder.

The Defendant is directed to report to the Court's Probation Officer within seventy-two (72) hours of his release from incarceration.

SO ORDERED ...

The State then filed a MOTION TO CORRECT ERRORS and claimed that the court was without jurisdiction to modify Beanblossom's sentence because the prosecuting attorney had not given approval for modification, as contemplated by I.C. 35-38-1-17(b), which provides, in pertinent part:

If more than three hundred sixty-five (365) days have elapsed since the defendant 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.

In light of the State's motion to correct error, the trial court rescinded its previous order and, with the approval of the State, entered an Amended Order which granted Beanblossom a sentence modification of a forty-year sentence, with ten years suspended on each count and ten years of probation, sentences to be served concurrently.

I

Beanblossom attempts to present these initial issues for the first time before this...