State v. Harper, 79S02–1405–CR–334.

Docket NºNo. 79S02–1405–CR–334.
Citation8 N.E.3d 694
Case DateMay 14, 2014
CourtSupreme Court of Indiana

8 N.E.3d 694

STATE of Indiana, Appellant (Plaintiff),
Tammy Sue HARPER, Appellee (Defendant).

No. 79S02–1405–CR–334.

Supreme Court of Indiana.

May 14, 2014.

[8 N.E.3d 695]

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Timothy P. Broden, Lafayette, IN, Attorney for Appellee.

On Transfer from the Indiana Court of Appeals, No. 79A02–1303–CR–272

DICKSON, Chief Justice.

The State of Indiana appeals an order of the Tippecanoe Circuit Court modifying the sentence of defendant Tammy Sue Harper, claiming that the trial court lacked authority to modify the defendant's sentence because more than 365 days had passed since the defendant was sentenced and the prosecutor did not approve of the modification. The Court of Appeals agreed and reversed the modification. State v. Harper, No. 79A02–1303–CR–272, 1 N.E.3d 219 (Ind.Ct.App. Dec. 30, 2013) (table). We now grant transfer and hold that the prosecutor's conduct, under the unique factors of this case, established the prerequisite assent.

This case arises out of a motion for sentence modification. The trial court sentenced the defendant on September 19, 2011. The defendant filed the motion for modification at issue on December 5, 2012, and the trial court held a hearing on that motion on January 25, 2013. At the hearing, the trial court, in apparent recognition of Indiana Code section 35–38–1–17(b) (2008), acknowledged that it lacked authority to modify the sentence but indicated its desire to do so unless the prosecutor's office objected to the modification and planned to appeal:

In reviewing this it was my thought that I think Ms. Harper is at a point in her life where [she] is no longer a threat to society and it seemed to me appropriate that we take her off that tax payer rolls and get her back in the community. I was thinking Home with Hope or Seeds of Hope or something like that. My concern is that I think I may have no legal basis to do that and so I kind of wanted to have a discussion about this. I from time to time tell [the deputy prosecutor] that I am going to do something and then I don't think that I have the legal power to do it which puts the Prosecutor's Office in the position to either having to appeal my order which nobody wants to do well [the deputy prosecutor] may want to do it just for the fun of it but—but I don't want to keep putting [the deputy prosecutor] in a position that he feels—I put him a (inaudible) position where he is forced to do something. I would like to put Ms. Harper in Home with Hope to see if she

[8 N.E.3d 696]

makes it. If you tell me that your office is going to appeal that then I will save everybody the time and the energy and save the tax payers the money and I won't do it. And you probably want to think about that and talk about it with somebody else.

Tr. at 2–3. (emphases added). The deputy prosecutor who appeared at the hearing responded in the affirmative.

After an exchange with the chief probation officer regarding the defendant's chances of improvement at Home with Hope, the trial court resolved to give the defendant a chance and directed the prosecutor's office to let it know of any objection within the near future:

I am inclined to give it a try. Sometime in the next week or so if you have an opportunity to get back with me I will modify her sentence and over your screaming objection.... 1 The Court directs that the Tippecanoe County Prosecutor's Office provide more input to the Court with—in the near future [whenever] that may be.

Id. at 5 (emphases added). The prosecutor's office did not provide the trial court with any further input on the matter. On March 1, 2013, the defendant filed a letter with the trial court noting that more than 30 days had elapsed since the entry of January 25 and inquiring as to the status of the trial court's directive. On March 5, the trial court granted the defendant's motion for modification and ordered that the defendant be released from the Department of Correction on April 1 to serve the remainder of her sentence on probation. This prompted the State to file its appeal on March 25. The next day, the State requested that the trial court stay the modification pending resolution of the instant appeal, but the trial court denied the motion.

The State argues that the trial court lacked authority to modify the defendant's sentence as a matter of law. “Where the issue presented on appeal is a pure question of law, we review the matter de novo.” State v. Moss–Dwyer, 686 N.E.2d 109, 110 (Ind.1997). A trial judge generally has no authority over a defendant after sentencing; however, the legislature may give the court authority, under certain circumstances, to...

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    ...Whether a Bill of Rights provision applies to the States is a purely legal question. We review such questions de novo. State v. Harper, 8 N.E.3d 694, 696 (Ind. 2014). Unlike legal questions, a trial court's factual determinations are reviewed for clear error. Fischer v. Heymann, 12 N.E.3d 8......
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    ...Applicable Version of the Statute [10] A trial court generally has no authority over a defendant after sentencing. State v. Harper, 8 N.E.3d 694, 696 (Ind.2014). A notable exception is Indiana Code section 35–38–1–17, which gives trial courts authority under certain circumstances to modify ......
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