State v. Fulkrod, 48A02-0003-CR-176.
Decision Date | 29 September 2000 |
Docket Number | No. 48A02-0003-CR-176.,48A02-0003-CR-176. |
Citation | 735 N.E.2d 851 |
Parties | STATE of Indiana, Appellant-Respondent, v. Richard E. FULKROD, Appellee-Petitioner. |
Court | Indiana Appellate Court |
Karen M. Freeman-Wilson, Attorney General of Indiana, Andrew L. Hedges, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellant.
Patrick R. Ragains, Smith & Ragains, Anderson, Indiana, Attorney for Appellee.
The State appeals the trial court's modification of Richard Fulkrod's forty-year sentence to the Indiana Department of Correction for voluntary manslaughter. We reverse.
The State raises the following restated issue for our review: whether the trial court properly modified Fulkrod's sentence without the prosecutor's approval after more than 365 days had elapsed from the date Fulkrod began to serve his sentence to the date Fulkrod filed his Petition for Sentence Modification with the trial court.
On February 1, 1992, Fulkrod shot his wife Sharon Fulkrod four times. She later died from her injuries. Fulkrod ultimately pleaded guilty to voluntary manslaughter, a Class A felony. On September 21, 1994, the trial court sentenced Fulkrod to forty years at the Indiana Department of Correction. On May 26, 1999, Fulkrod filed with the trial court a Petition for Modification of Sentence. Following a hearing on the petition, the trial court entered an order modifying Fulkrod's sentence to twenty-five years, all but fifteen years suspended. On December 20, 1999, the State filed a motion to correct errors, a motion which the trial court later denied. This appeal ensued.
The State contends that the trial court erred in modifying Fulkrod's sentence without the prosecutor's approval after more than 365 days had elapsed from the date Fulkrod began to serve his sentence to the date that Fulkrod filed his Petition for Sentence Modification. We agree.
Sentencing is conducted within the "discretion of the trial court and will be reversed only upon a showing of abuse of that discretion." Sims v. State, 585 N.E.2d 271, 272 (Ind.1992). The trial court also has discretion to determine "whether a presumptive sentence will be increased or decreased because of aggravating or mitigating circumstances." Id. Generally, a trial judge has no authority over a defendant after he or she pronounces sentence. Dier v. State, 524 N.E.2d 789, 790 (Ind.1988). 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. Schweitzer v. State, 700 N.E.2d 488, 492 (Ind.Ct.App. 1998), trans. denied.
On July 21, 1994, Fulkrod entered into a written plea agreement for voluntary manslaughter, a Class A felony, which provided in pertinent part that:
R. 45. On September 21, 1994, the trial court sentenced Fulkrod to forty years at the Indiana Department of Correction, with 963 days credit for time served. R. 89. At the sentencing hearing, the trial court stated:
what I want to do is go ahead and give you the maximum sentence but I want to reserve the right to modify it after I get a report from the Department of Corrections. It may turn out that a modification is justified.... The Court requests a psychological report from the Indiana Department of Corrections and if [defense counsel]feel[s] the need just let me know and I will set it down for further hearing and I will consider a sentence modification based on what they say.
On May 26, 1999, Fulkrod filed a Petition for Modification of Sentence with the trial court. Following a hearing on the petition, the trial court granted Fulkrod's petition and entered an order reducing Fulkrod's sentence. The order provides in pertinent part that:
The State argues that the "granting of Fulkrod's petition was erroneous because the trial court lacked the statutory authority [under Indiana Code section 35-38-1-17] to modify his sentence." Brief of Appellant at 7. Fulkrod argues that the trial court's "modified sentence falls within the parameters of what the State bargained for originally," and that according to Pannarale v. State, 638 N.E.2d 1247 (Ind.1994), "the trial court retained the authority to modify Fulkrod's sentence to twenty-five years with ten suspended." Brief of Appellee.
We believe that Pannarale is inapplicable in the present case. In Pannarale, the defendant agreed to plead guilty in exchange for the prosecutor's promise to recommend a sentence not exceeding ten years. 638 N.E.2d at 1248. The defendant was ultimately sentenced to ten years. Id. Thereafter, the defendant petitioned the trial court for a modification of his sentence under Indiana Code section 35-38-1-23. Id. The trial court denied the defendant's petition, a decision which was later affirmed by this court. Id. The Indiana Supreme Court held that "[b]ecause the trial judge here could have sentenced [the defendant] to fewer years of incarceration when he initially passed sentence..., he may subsequently reduce the ten year sentence actually imposed." Id. at 1249.
After examining Indiana Code section 35-38-1-23 and Indiana Code section 35-38-1-17, it appears that the two statutory provisions conflict. However, the legislature repealed Indiana Code section 35-38-1-23 in 1999. Therefore, we agree with the State that the controlling authority in the present case is Indiana Code section 35-38-1-17, which provides in pertinent part that:
(2) a hearing at which the defendant is present and of which the prosecuting attorney has been notified; and
(3) obtaining a report from the department of correction concerning the defendant's conduct which imprisoned;
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