MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                              Oct 20 2016, 9:59 am

regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Elijah Roberson                                          Gregory F. Zoeller
Michigan City, Indiana                                   Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Elijah Roberson,                                         October 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1602-CR-456
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G04-0912-FA-57



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-456 | October 20, 2016     Page 1 of 5
[1]   On August 31, 2010, Appellant-Defendant Elijah Roberson pled guilty to Class

      A felony child molesting. In exchange for Roberson’s plea, Appellee-Plaintiff

      the State of Indiana agreed to dismiss additional charges of Class B felony

      sexual misconduct with a minor, Class B felony incest, and Class C felony

      sexual misconduct with a minor. The trial court accepted Roberson’s guilty

      plea and sentenced him to a forty-year term of incarceration. Roberson’s

      sentence was affirmed on direct appeal. On February 2, 2016, Roberson filed a

      pro se motion seeking a modification of his sentence. The prosecuting attorney

      did not consent to Roberson’s motion. The trial court subsequently summarily

      denied Roberson’s motion.


[2]   On appeal, Roberson contends that the trial court abused its discretion in

      summarily denying his motion for a modification of his sentence. We affirm.



                            Facts and Procedural History
[3]   Our memorandum decision in Roberson’s direct appeal, which was handed

      down on June 24, 2011, instructs us as to the underlying facts and procedural

      history leading to the instant appeal.

              The facts supporting Roberson’s guilty plea can be found in the
              stipulated factual basis for the guilty plea. Roberson, who was
              born in 1962, is the biological uncle and adoptive father of the
              victim, S.R., who was born in 1992. Between March 6, 2003 and
              June 1, 2003, while Roberson and S.R. were living in East
              Chicago, Roberson had vaginal sexual intercourse with S.R. one
              or two times per week. Roberson told S.R. not to tell anyone
              about the sexual intercourse because Roberson would go to jail.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-456 | October 20, 2016   Page 2 of 5
              The trial court accepted Roberson’s guilty plea and sentenced
              him to a term of forty years executed.


      Roberson v. State, 45A03-1011-CR-564, *1 (Ind. Ct. App. June 24, 2011). On

      appeal, we affirmed Roberson’s sentence. Id. at *2. The Indiana Supreme

      Court subsequently denied Roberson’s transfer petition.


[4]   On February 2, 2016, Roberson filed a pro se motion seeking a modification of

      his sentence. The prosecuting attorney did not consent to Roberson’s motion.

      The trial court summarily denied Roberson’s petition on February 5, 2016.

      This appeal follows.



                                 Discussion and Decision
[5]   Roberson contends that the trial court erred in summarily denying his motion

      for a sentence modification. “We review a trial court’s decision as to a motion

      to modify only for an abuse of discretion.” Carr v. State, 33 N.E.3d 358, 358

      (Ind. Ct. App. 2015), trans. denied. “An abuse of discretion has occurred when

      the court’s decision was clearly against the logic and effect of the facts and

      circumstances before the court.” Id. at 359 (internal quotation omitted).


[6]   Roberson qualifies as a violent criminal. See Ind. Code § 35-38-1-17(d)(10).

      Indiana Code section 35-38-1-17(k) provides the following with respect to an

      individual who is classified as a violent criminal and who committed their

      offense or was sentenced prior to July 1, 2014:


      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-456 | October 20, 2016   Page 3 of 5
              This subsection applies to a convicted person who is a violent
              criminal. A convicted person who is a violent criminal may, not
              later than three hundred sixty-five (365) days from the date of
              sentencing, file one (1) petition for sentence modification under
              this section without the consent of the prosecuting attorney.
              After the elapse of the three hundred sixty-five (365) day period,
              a violent criminal may not file a petition for sentence modification
              without the consent of the prosecuting attorney.


      (Emphasis added).


[7]   The record reveals that Roberson was sentenced on October 5, 2010. He did

      not file his motion for a sentence modification until February 2, 2016, far more

      than 365 days after he was sentenced. Thus, pursuant to Indiana Code section

      35-38-1-17(k), the trial court could only grant Roberson’s request for a

      modification of his sentence if he received the consent of the prosecuting

      attorney.1 The record before the court on appeal contains no indication that

      Roberson sought, much less received, the consent of the prosecuting attorney

      before requesting a sentence modification. As such, the trial court could not

      have granted Roberson the requested relief. We therefore conclude that the

      trial court did not abuse its discretion in summarily denying Roberson’s

      petition.




      1
        We note that the 2014 amendments to Indiana Code section 35-38-1-17 removed the requirement for
      consent from the prosecuting attorney. However, we held in Johnson v. State, 36 N.E.3d 1130, 1137-38 (Ind.
      Ct. App. 2015), that the 2014 amendments did not apply retroactively to penalties incurred, crimes
      committed, or proceedings begun before the statute was amended. Further, it is also of note that Indiana
      Code section 35-38-1-17 was again amended in 2015 to re-introduce the requirement that a prosecuting
      attorney consent to a request for a sentence modification.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-456 | October 20, 2016          Page 4 of 5
[8]   The judgment of the trial court is affirmed.


      Pyle, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-456 | October 20, 2016   Page 5 of 5
