Christopher J. West v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 16 2016, 6:51 am

this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bryan L. Cook Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher J. West, February 16, 2016 Appellant-Defendant, Court of Appeals Case No. 21A01-1510-CR-1673 v. Appeal from the Fayette Circuit Court State of Indiana, The Honorable Beth Butsch, Judge Appellee-Plaintiff. Trial Court Cause No. 21C01-0904-FA-45

Altice, Judge.

Case Summary

^[1] Christopher J. West appeals from the trial court’s denial of his motion to

modify sentence.

Court of Appeals of Indiana | Memorandum Decision 21A01-1510-CR-1673 | February 16, 2016 Page 1 of 4 ^[2] We affirm.

Facts & Procedural History

^[3] Following a jury trial, on February 18, 2010, West was convicted of two counts

of Class B felony dealing in a narcotic drug and one count of Class D felony

possession of cocaine. The trial court sentenced him to an aggregate executed

term of thirty-three years in prison. On direct appeal, this court revised West’s

sentence to an aggregate executed term of eighteen years in prison. West v.

State, No. 21A04-1004-CR-303 (Ind. Ct. App. Jan. 26, 2011).

^[4] Thereafter, West filed unsuccessful motions to modify in 2012, 2013, and 2014.

On March 27, 2015, he filed a motion for progress report, which was granted by

the trial court. The Department of Correction provided the report to the trial

court and the parties in May 2015. At that time, West’s anticipated date of

release was April 1, 2018. West filed the instant motion to modify his sentence

on June 19, 2015, which the trial court summarily denied without a hearing on

September 22, 2015.

Discussion & Decision

^[5] West argues that the trial court abused its discretion by “refusing to further

consider [his] sentence when his [DOC] Progress Report demonstrates

overwhelming, objective evidence of reformation, and his remaining prison

sentence is nearing completion.” Appellant’s Brief at 1. Additionally, West

Court of Appeals of Indiana | Memorandum Decision 21A01-1510-CR-1673 | February 16, 2016 Page 2 of 4  asserts that the trial court “arguably acted without authority” in denying his

motion more than ninety days after it was filed. Id. at 5.

^[6] We begin by addressing West’s belated challenge to the trial court’s authority to

rule on the motion. Citing Ind. Trial Rules 53.1 and 53.2, West argues that the

trial court lost jurisdiction to rule on the motion ninety days after it was filed

and that we should remand with instructions for further consideration by a

special judge.

^[7] These rules are “intended to expedite proceedings by withdrawing cases from

trial judges who have delayed their ruling beyond the specified period of time.”

Williams v. State, 716 N.E.2d 987, 900 (Ind. 1999). If a party chooses not to file

a lazy judge motion and, if denied, seek a writ of mandate from our Supreme

Court to compel disqualification of the judge, the party is estopped from

complaining on appeal that the original trial judge maintained jurisdiction over

the case. Id. Because West did not follow the procedural mandates and waited

until an unfavorable judgment was entered against him, he may not now be

heard to complain. See id.

^[8] With respect to petitions for sentence modification, Ind. Code § 35-38-1-17

provides explicit limitations. For a convicted person who, like West, is not a

violent criminal, I.C. § 35-38-1-17(j) provides that such petitions may be filed

without the consent of the prosecuting attorney:

(1) not more than one (1) time in any three hundred sixty-five (365) day period; and

Court of Appeals of Indiana | Memorandum Decision 21A01-1510-CR-1673 | February 16, 2016 Page 3 of 4  (2) a maximum of two (2) times during any consecutive period of incarceration.

West acknowledges that this is the fourth time he has sought modification of his

sentence in this case. Further, the record does not indicate that the prosecuting

attorney consented to this recent filing. Under these circumstances, the trial

court did not err in summarily denying West’s motion to modify sentence. See

I.C. § 35-38-1-17(j)(2).

Judgment affirmed.

Robb, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 21A01-1510-CR-1673 | February 16, 2016 Page 4 of 4