Opinion
24A-CR-1592
11-26-2024
Jermaine Drake, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
APPELLANT PRO SE Jermaine Drake Michigan City, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Delaware Circuit Court The Honorable Kimberly S. Dowling, Judge Trial Court Cause No. 18C02-0410-MR-2
APPELLANT PRO SE
Jermaine Drake
Michigan City, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
Bailey and Foley Judges concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] In 2004, Jermaine Drake shot and killed Chris Masiongale. Drake was convicted of murder, and the trial court sentenced him to fifty-five years of incarceration. In 2024, Drake moved for a sentence modification, which motion the trial court denied. Drake contends that the trial court abused its discretion in denying his motion for a sentence modification. We affirm. Facts and Procedural History
[¶2] In October of 2004, Drake, believing Masiongale to be in possession of his stolen television, arranged to meet with Masiongale in Delaware County. Drake v. State, Cause No. 18A02-0605-CR-367 at *1 (Ind.Ct.App. May 1, 2007). At the meeting, Drake approached Masiongale, said "[g]ive me my s[***,]" fatally shot him, and grabbed the television. Id. The State charged Drake with murder, a jury found him guilty as charged, and the trial court sentenced him to fifty-five years of incarceration. Id. On May 31, 2024, Drake moved for sentence modification (seeking placement in Delaware County Community Corrections), which motion the State objected to the same day and the trial court denied on June 5, 2024.
Discussion and Decision
[¶3] Generally, we review a trial court's denial of a petition to modify a sentence for abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). In this case, however, the statutory provisions governing sentence modification are dispositive. We review matters of statutory interpretation de novo because they present pure questions of law. Id. In interpreting statutes, we "presume[] that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals." Rodriguez v. State, 129 N.E.3d 789, 793 (Ind. 2019) (internal citations omitted).
[¶4] Indiana Code section 35-38-1-17 defines a "violent criminal" as a person convicted of any of a number of offenses (including murder) and provides that, "not later than three hundred sixty-five (365) days from the date of sentencing," a violent criminal may file one motion for sentence modification without the consent of the prosecuting attorney. Ind. Code § 35-38-1-17(d)(1); -17(k). After one year, however, a violent criminal must have the prosecutor's consent before requesting a sentence modification. Ind. Code § 35-38-1-17(k).
Indiana Code section 35-38-1-17, which governs the reduction and suspension of sentences, was amended in 2015 to provide that it applies to defendants who committed their offenses or were sentenced before July 1, 2014. See Woodford v. State, 58 N.E.3d 282, 285 (Ind.Ct.App. 2016) (discussing history of Indiana Code section 35-38-1-17). Drake apparently believes that the version of this code section that was in effect in 2004 (or when he committed murder) would allow him to request a move to community corrections in 2024 without prosecutorial consent. Drake, however, does not provide us with this provision, much less explain how (in light of the above) it would apply or allow him to proceed without prosecutorial consent.
[¶5] Because Drake is a "violent criminal" and more than one year had passed since his sentencing, he was required to have the prosecutor's consent before requesting a modification. The prosecutor, however, did not consent. Drake was therefore barred from requesting a sentence modification, and the trial court properly denied his motion. See Newson v. State, 86 N.E.3d 173, 175 (Ind.Ct.App. 2017) (affirming the denial of Newson's sentence-modification request because he had been sentenced in January of 1998 but had not moved for a modification until September 2, 2016, and had not secured the prosecutor's consent).
[¶6] We affirm the judgment of the trial court.
Bailey, J., and Foley, J., concur.