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Monday, February 02, 2009

Ind. Decisions - More on Redmond v. State

Last week the ILB commented on the decision in the case of Dale Redmond v. State of Indiana, noting:

The Court writes:
We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the term “imposed” to be critical.
Here is PL 2-2005 (HEA 1398), SECTION 123, setting out the amendment. SEC. 123 begins on p. 98.

What is confusing to me is that this is a Code Correction Bill. A correction bill is introduced at the beginning of each session to correct technical errors made in the last session - typos, reconciling where two laws amended the same section, etc. Scroll though the act and you will see that.

Code correction bills never make substantive change. Yet there is no clue as to where the "technical" changes made to IC 35-38-1-17 came from. What error are they intended to remedy?

I looked at the history line to the current version of IC 35-38-1-17 and noted that prior to the 2005 amendment, the section had been amended in 2001, but that that amendment did not affect subsection (a). The next most recent amendment was from 1991. So what was the genesis of the "technical correction" made as part of the 2005 bill? What error was intended to be corrected?

The change was part of the "annual technical corrections bill to correct errors in the Indiana Code," a product of the legislative interim Code Revision Commission of 2004. The minutes of the 9/8/2004 meeting, where this bill is discussed, are available online. Here are a few excerpts from the minutes that shed light on the "technical correction" concept:

Craig Mortell, Deputy Director of the Office of Code Revision (OCR), addressed the Commission about the 2005 Technical Corrections (TC) bill. Mr. Mortell distributed: (1) PD 3006, the first draft of the 2005 TC bill; (2) a SECTION-by-SECTION outline of PD 3006; (3) a supplementary draft containing SECTIONS proposed for addition to the contents of PD 3006; and (4) a SECTION-by-SECTION outline of the supplementary draft. [ILB Note - "PD" means preliminary draft.]

Mr. Mortell expressed his gratitude to many persons who provided information on technical problems suitable for resolution in the 2005 TC bill, and especially recognized the contribution of the attorneys of the LSA's Office of Bill Drafting and Research, who reviewed all of the 2004 Acts and informed OCR of the technical problems they found in their review. Mr. Mortell then discussed several types of technical corrections contained in PD 3006, including the following:
-- Conflicts (instances in which two 2004 Acts amended a single Code section in inconsistent but not incompatible ways).
-- Incorrect internal references.
-- Miscellaneous wording and numbering problems (redundancies, missing words, misplaced articles, incorrectly numbered subdivisions, etc.).
-- Prior millennium references (12 instances in which Code sections indicate that the current date is to be filled in on a form and mark the space where the current year is to be filled in with "19__"). * * *

Mr. Mortell said that OCR is careful not to include a correction for a perceived problem in the TC draft unless: (1) it is clear that there is a problem; (2) there is only one way in which the problem can be corrected; and (3) correcting the problem will not result in a substantive change in the law. Out of concern to maintain these standards, he said, OCR wishes to highlight certain "close calls" -- technical corrections presently included in PD 3006 or the supplementary draft that require careful analysis under these standards. He said that OCR wants to draw the Commission's attention to these "close call" corrections and other proposed corrections requiring additional explanation, to make sure that the Commission is comfortable with their inclusion in the 2005 TC bill. Mr. Mortell and Mr. Stieff discussed the following:

I won't quote these all, you may find them on pp. 3-4 of the minutes. But here is one example of what was considered a "close call":
(1) IC 6-1.1-22.5-10: PD 3006 resolves the conflict between the version of IC 6-1.1-22.5-10 as added by P.L.1-2004 and the version of IC 6-1.1-22.5-10 as added by P.L.23-2004. The only difference between the two is that the P.L.1-2004 version includes the word or word fragment "not" in the following context: "the county treasurer shall give not notice of tax rates ...". Because the inclusion of "not" in this context appears to have been unintentional, PD 3006 strikes "not".
The amendment to IC 35-38-1-17 is not mentioned at all in the minutes.

Friday I wrote the LSA:

I have a question about PL 2-2005 (HEA 1398), SECTION 123 that amended IC 35-38-1-17.

Can you tell me what was the genesis of the correction?

I've checked the minutes from 2004, and although they refer to the technical corrections bill, PD 3006, and to several outlines of the bill, none of this appears to be available online.

LSA promptly responded over the weekend with this note, sending me "the relevant excerpt from the 2005 TC bill outline that explains the change to IC 35-38-1-17 that you were inquiring about.":
IC 35-38-1-17
Inconsistent terminology. IC 35-38-1-17 refers to an individual who is the subject of a criminal prosecution both as "defendant" and as "convicted person". HB 1398 makes the references consistent by changing "defendant" to "convicted person". An individual referred to in IC 35-38-1-17 has been convicted and sentenced and has begun serving a sentence, so "convicted person" seems more appropriate than "defendant". No other section in IC 35-38-1 refers to an individual who has already been sentenced as a "defendant".
Effective: Upon passage.
Consulted: Stephen Johnson, Exec. Director, Pros. Attnys Council
But the introduced version of the bill, HB 1398-2005, goes beyond this description to add the new phrase "imposed on the person." Here is subsection (a) from the introduced version:
    SECTION 127. IC 35-38-1-17 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 17. (a) Within three hundred sixty-five (365) days after:
        (1) thedefendant a convicted person begins serving his the sentence imposed on the person;
        (2) a hearing is held:
             (A) at which the defendant convicted person is present; and
             (B) of which the prosecuting attorney has been notified; and
        (3) obtaining the court obtains a report from the department of correction concerning the defendant's convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must incorporate its reasons in the record.
I have written to LSA asking for any additional background information.

Finally, here are some quotes from the 1996 Court of Appeals decision in Liggin v. State, an opinion which, like the Redmond decision last week, turned on the word "imposed":

Liggin's interpretation of the relevant triggering event is at odds with the plain meaning of IC § 35--38--1--17(a), which does not mention the imposition of sentence but instead states that the court may modify a sentence "after ... the defendant begins serving his sentence." Nevertheless, Liggin cites in support of his position Sanders v. State, 638 N.E.2d 840 (Ind.Ct.App.1994). In Sanders, this court affirmed the trial court's determination that it could not modify the defendant's sentence more than 365 days after it had been imposed unless the prosecutor consented to the modification. Liggin notes that in Sanders, this court stated, "Pursuant to I.C. 35--38--1--17(a), a trial judge may order 'shock probation' within 365 days after a sentence is imposed." Id. at 841. We observe that the above statement was not central to the holding in that case and thus constituted dicta. In any event, and regardless of how it is characterized, it was an inaccurate summarization of the present statute's contents and thus an incorrect statement of the law.

When construing a statute we must give the statute its apparent and obvious meaning. Williams v. State, 600 N.E.2d 962 (Ind.Ct.App.1992). The predecessor to IC § 35--38--1--17 stated that the court could reduce or suspend a defendant's sentence "within one hundred eighty (180) days after it imposes a sentence". See Ind.Code Ann. § 35--4.1--4--18 (repealed 1983). However, in 1983 the statute was amended to provide that the modification could occur "within 180 days after ... the defendant begins serving his sentence", thus unambiguously changing the triggering event from the imposition of the sentence to the commencement of serving the sentence. The present statute is the same as the 1983 amended version in all relevant respects except that in 1991 the Indiana General Assembly changed the time period from 180 days to 365 days. Thus, the current version of the statute specifies that a trial court may modify a sentence within 365 days after the defendant begins serving his sentence. In the instant case, Liggin had not yet begun serving the sentence at the time the trial court purported to modify it. Therefore, the conditions of IC § 35--38--1--17(a) were not present, the trial court was without authority to modify the sentence, and erred originally in doing so. The trial court properly granted the State's Motion to Correct Erroneous Sentence. Judgment affirmed.

Posted by Marcia Oddi on February 2, 2009 08:42 AM
Posted to Ind. App.Ct. Decisions