Opinion
22A-CR-162
07-21-2022
Appellant Pro Se Cleatus Furlong. Attorneys for Appellee Theodore E. Rokita, Evan Matthew Comer.
Pursuant to Ind. Appellate Rule 65(D), 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.
Appeal from the Porter Superior Court The Honorable Michael A. Fish, Judge Trial Court Cause No. 64D01-0106-CF-4503.
Appellant Pro Se Cleatus Furlong.
Attorneys for Appellee Theodore E. Rokita, Evan Matthew Comer.
MEMORANDUM DECISION
May, Judge.
[¶1] Cleatus Furlong appeals following the denial of his motion for reconsideration, which challenged the denial of his petition for modification of his sentence. We affirm.
Facts and Procedural History
[¶2] In June 2001, the State charged Furlong with murder, conspiracy to commit murder, and theft after he shot his sleeping roommate twice in the head and engaged in "methodical looting of the victim's house after the death." (App. Vol. II at 21.) The trial court held a four-day jury trial in November 2002, and the jury found Furlong guilty on each count. The trial court then sentenced Furlong to a term of 118 years. On March 4, 2004, following a successful direct appeal by Furlong, the trial court vacated his conviction of conspiracy to commit murder and resentenced Furlong to a term of sixty-eight years.
Ind. Code § 35-42-1-1 (1997).
Ind. Code § 35-41-5-2 (1977) & Ind. Code 35-42-1-1 (1997).
Ind. Code § 35-43-4-2 (1985).
[¶3] On September 21, 2021, Furlong filed a petition to modify his sentence.
Furlong argued his sentence should be modified downward given his youthful age at the time of his offense, his generally good conduct while incarcerated, and his participation in educational and vocational programs while in prison. The State filed an objection to Furlong's motion on October 4, 2021. In its objection, the State argued Furlong failed to meet a statutory prerequisite for filing a petition for sentence modification because he did not first receive the consent of the prosecutor to file the petition. The trial court then issued an order denying Furlong's petition to modify his sentence on October 5, 2021. Furlong filed a motion for reconsideration on October 27, 2021. In the motion for reconsideration, Furlong accused the State of misleading the trial court, ignoring a conflict of interest, and being rude to his sister when she sought to speak with the Porter County Prosecutor. The trial court held a hearing on Furlong's motion for reconsideration on December 20, 2021, and the trial court subsequently denied the motion.
Discussion and Decision
[¶4] Initially, we note Furlong proceeds pro se. Litigants who elect to proceed pro se assume the risk they may not know how to accomplish all that a trained attorney may be able to accomplish. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind.Ct.App. 2009), trans. denied, cert. dismissed, 558 U.S. 1074 (2009). Nonetheless, "[i]t is well settled that pro se litigants are held to the same legal standards as licensed attorneys." Lowrance v. State, 64 N.E.3d 935, 938 (Ind.Ct.App. 2016), reh'g denied, trans. denied. Consequently, "pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so." Id. We will not become an advocate for one of the parties or address an argument too poorly developed or expressed for us to understand. Basic v. Amouri, 58 N.E.3d 980, 984 (Ind.Ct.App. 2016).
[¶5] A trial court retains inherent power to reconsider its prior rulings while a matter is pending, and we generally review a trial court's ruling on a motion for reconsideration for an abuse of discretion. Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967, 970 (Ind. 2014). An abuse of discretion occurs when the trial court's ruling is against the facts and circumstances before it or when the trial court misinterprets the law. Id. However, where, as here, the question presented on appeal is a pure question of law, we apply a de novo standard of review. State v. Holloway, 980 N.E.2d 331, 334 (Ind.Ct.App. 2012).
[¶6] Furlong argues the trial court erred in denying his petition for sentence modification and subsequent motion to reconsider the denial. In response to Furlong's argument, the State contends the trial court lacked the authority to consider Furlong's petition for sentence modification because Furlong failed to comply with the applicable statutory requirements, and therefore, the trial court properly denied both Furlong's petition for sentence modification and his motion for reconsideration. Indiana Code section 35-38-1-17(d)(1) provides that a person convicted of murder is a violent criminal under the statute governing petitions for modification of sentence. Subsection (k) of the statute states:
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.
Furlong filed his petition for sentence modification more than one year after he was sentenced without first obtaining the consent of the prosecuting attorney. Therefore, the trial court lacked the statutory authority to consider Furlong's petition. As the trial court did not have authority to consider Furlong's petition, it did not err in denying his subsequent motion to reconsider its denial of the petition. See Merkel v. State, 160 N.E.3d 1139, 1141 (Ind.Ct.App. 2020) (holding trial court lacked statutory authority to consider motion for sentence modification filed by violent criminal without consent of the prosecutor).
Moreover, the State actively objection to the petition in its response.
Furlong also argues Gary Germann, the current Porter County Prosecutor, should have recused himself and his office from participating in Furlong's petition for a sentence modification because Germann briefly represented Furlong while working as a public defender. On October 28, 2002, Germann entered his appearance as co-counsel for Furlong in the underlying murder case and then, a mere three days later, moved to withdraw his appearance. The trial court granted the motion to withdraw appearance on November 7, 2002. Under the facts of this particular case, we do not believe appointment of a special prosecutor was necessary given the brevity of Germann's representation of Furlong, the lengthy period between the representation and Furlong's petition for a sentence modification, and the lack of any indication Germann actually gained confidential information related to Furlong that could be used to benefit the State in the context of Furlong's petition for a sentence modification. See Johnson v. State, 675 N.E.2d 678, 682 (Ind. 1986) (listing as among the key inquires in determining if a conflict of interest exists requiring recusal "whether the prosecutor has received confidential information in the prior representation, and, more importantly, whether the information may have subsequently assisted the prosecution").
Conclusion
[¶7] The trial court lacked statutory authority to consider Furlong's petition for a sentence modification because Furlong is a violent criminal who filed his petition more than a year after being sentenced without the consent of the prosecutor. Because the trial court correctly concluded it lacked the authority to consider Furlong's petition, it also did not err in denying his motion for reconsideration. Therefore, we affirm the trial court.
[¶8] Affirmed.
Riley, J., and Tavitas, J., concur.