Daniel E Willard v. State of Indiana

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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case. Nov 15 2023, 9:16 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Samuel Dayton Deputy Attorney General Indianapolis, Indiana David P. Dekold Certified Legal Intern Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Daniel Willard, November 15, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1024 v. State of Indiana, Appellee-Plaintiff Appeal from the Ripley Superior Court The Honorable Jeffrey Sharp, Judge Trial Court Cause No. 69D01-1806-F6-134 Memorandum Decision by Judge May Chief Judge Altice and Judge Foley concur. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1024 | November 15, 2023 Page 1 of 5 May, Judge. [1] Daniel Willard appeals the trial court’s denial of his motion for alternative placement. Willard argues the trial court abused its discretion when it did not grant his motion for alternate placement. We affirm. Facts and Procedural History [2] On June 1, 2018, the State charged Willard with Level 6 felony possession of marijuana, 1 Level 6 felony maintaining a common nuisance, 2 Class A misdemeanor resisting law enforcement, 3 and Class C misdemeanor possession of paraphernalia 4 based on an incident with police on May 15, 2018. On January 15, 2019, Willard pled guilty to Level 6 felony possession of marijuana, Level 6 felony maintaining a common nuisance, and Class A misdemeanor resisting law enforcement in exchange for the State dismissing the charge of Class C misdemeanor possession of paraphernalia. As part of that plea agreement, Willard agreed to the following concurrent sentences: 910 days for Level 6 felony possession of marijuana, 910 days for maintaining a common nuisance, and 365 days for Class A misdemeanor resisting law enforcement. Also on January 15, 2019, the trial court sentenced Willard pursuant to the 1 Ind. Code § 35-48-4-11(c). 2 Ind. Code § 35-45-1-5(c). 3 Ind. Code § 35-44.1-3-1(a). 4 Ind. Code § 35-48-4-8.3(b). Court of Appeals of Indiana | Memorandum Decision 23A-CR-1024 | November 15, 2023 Page 2 of 5 terms of his plea agreement and suspended the aggregate sentence to probation except for time served. [3] On April 5, 2019, the State charged Willard with Level 2 felony dealing in methamphetamine, 5 Level 4 felony possession of methamphetamine, 6 Level 6 felony maintaining a common nuisance, and Class A misdemeanor possession of marijuana. 7 Based thereon, the probation department filed a notice of violation of probation. On June 8, 2021, Willard admitted the violation, and the trial court ordered him to serve incarcerated 600 days of his previously suspended sentence. [4] Willard filed four requests, pro se, to modify his sentence. He filed these motions on January 11, 2022, January 18, 2022, July 29, 2022, and October 7, 2022. The trial court denied all four requests. On October 18, 2022, the trial court entered an order, regarding Willard’s October 7, 2022, motion, that indicated “defendant is will [sic] within his rights to hire counsel. Should he do so and that counsel file [sic] for a modification, the court would set it for hearing on the merits.” (App. Vol. II at 94) (formatting in original omitted). The record indicates no hearing was ever held. 5 Ind. Code § 35-48-4-1.1(e). 6 Ind. Code § 35-48-4-6.1(c) 7 Ind. Code § 35-48-4-11(b). Court of Appeals of Indiana | Memorandum Decision 23A-CR-1024 | November 15, 2023 Page 3 of 5 [5] On April 4, 2023, Willard, pro se, filed a motion for alternative placement, asking the trial court to allow him to serve the rest of his sentence on work release, community corrections, or home detention. On the same day, the trial court denied Willard’s motion for alternative placement. Discussion and Decision [6] Willard argues the trial court erred when it denied the motion for alternative placement that he filed pursuant to Indiana Code chapter 35-38-2.6. Indiana Code section 35-38-2.6-3 states, in relevant part, “[t]he court may, at the time of sentencing, suspend the sentence and order a person to be placed in a community corrections program as an alternative to commitment to the department of correction[.]” (emphasis added). Willard filed his motion for consideration of alternative placement approximately four years after he was sentenced. Thus, the trial court here could not have granted Willard’s motion for alternative placement under Indiana Code chapter 35-38-2.6 because his request was not made “at the time of sentencing[.]” See Keys v. State, 746 N.E.2d 405, 407 (Ind. Ct. App. 2001) (Ind. Code § 35-38-2.6-3 “merely authorizes the trial court to suspend a sentence and place defendant in a community corrections program at the time of sentencing . . . it does not allow the trial court to modify placement after sentencing.”). [7] However, if a defendant asks the trial court to modify his placement allowing him to serve his sentence in a community correction program, that is a request for a modification of sentence. Keys, 746 N.E.2d at 407. Pursuant to Indiana Court of Appeals of Indiana | Memorandum Decision 23A-CR-1024 | November 15, 2023 Page 4 of 5 Code section 35-38-1-17(j), Willard could file a motion for modification of sentence “(1) not more than one (1) time in any three hundred sixty-five day period; and (2) a maximus of two (2) times during an consecutive period of incarceration; without the consent of the prosecuting attorney.” Here, Willard filed three motions for modification of sentence in a 365 day period – July 29, 2022, October 7, 2022, and April 4, 2023. Therefore, the order he appeals, which denied his motion for alternative placement, is his third request for a modification of sentence in a 365-day period. As such it is ineligible for consideration by the trial court. See Vasquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015) (offender’s third motion for modification of sentence exceeded the authorized number of filings under Indiana Code section 35-38-1-17(j) and thus the trial court properly dismissed it). [8] Based on the inapplicability of Indiana Code chapter 35-38-2.6 and the unavailability of relief from a third request within a year for sentence modification pursuant to Indiana Code section 35-38-1-17(j), we conclude the trial court did not abuse its discretion when it denied Willard’s motion. Conclusion [9] The trial court did not abuse its discretion when it denied Willard’s motion to for alternative placement. Accordingly, we affirm. [10] Affirmed. Altice, C.J., and Foley, J., concur. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1024 | November 15, 2023 Page 5 of 5

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