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Wednesday, May 14, 2014

Ind. Decisions - Supreme Court decides one, re sentence modification

In State of Indiana v. Tammy Sue Harper, a 5-page, 5-0 opinion, Chief Justice Dickson writes:

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. * * *

The State compares this case to Fulkrod, where the trial court reserved the right to modify in the original sentencing order and nearly five years later modified the sentence without the prosecutor's approval. 753 N.E.2d at 631. We reversed the sentence modification order, ex-plaining that the trial court had sought "to reserve a power that it did not possess beyond the 365-day limit." Id. at 633. Here, in contrast, the trial court did not seek to reserve a power that it did not possess. Rather, the court acknowledged the need for consent of the prosecutor, expressed its desire to go forward with the sentence modification, and asked the prosecutor's office to inform it of any objection "in the next week or so"—and the deputy prosecutor agreed.

For these reasons, we conclude that in the context of the facts of this case, the prosecu-tor's conduct and communications adequately conveyed the "approval of the prosecuting attor-ney" required in Indiana Code section 35-38-1-17(b), and that the trial court did not err in pro-ceeding to grant the defendant's motion for sentence modification. Affirmed.

Posted by Marcia Oddi on May 14, 2014 01:13 PM
Posted to Ind. Sup.Ct. Decisions