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Thursday, December 10, 2009

Ind. Decisions - Redmond v. State, revisited this week by the Indiana Code Revision Commission

Some readers may remember the Jan. 28, 2009 Court of Appeals decision in the case of Dale Redmond v. State of Indiana. From Judge Vasikik's opinion (emphasis by ILB):

A decade after he was sentenced to consecutive sentences under the same cause number (and soon after he began serving his second sentence), Dale Redmond filed a motion to modify his second sentence pursuant to Indiana Code § 35-38-1-17(a). The trial court denied the motion, and Redmond appeals. Concluding that Indiana Code § 35-38-1-17(a) requires a defendant to file a motion to modify within 365 days after he begins serving the entire sentence imposed him (and not individual sentences under the same cause number) and the triggering date is the date the trial court imposes the sentence, we affirm the trial court. * * *

We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the term “imposed” to be critical. The term “impose” was contained in the 1983 version of the statute, not contained in the 1995 version at the time Liggin was decided (and found to be dispositive in that case), and then added back in 2005. When construing a statute, we presume the legislature was aware of any court decisions upon the subject matter of the legislation being construed. See Holmes v. Jones, 719 N.E.2d 843, 848 (Ind. Ct. App. 1999). As such, when reading the current version of Indiana Code § 35-38-1-17(a), we conclude that the introductory clause, within 365 days after a convicted person begins serving the sentence imposed on him, means within 365 days after a convicted person begins serving the entire sentence imposed on him (and not individual sentences under the same cause number), the court may reduce or suspend his sentence. The triggering date is the date the trial court imposes the sentence.

The ILB wrote at the time:
What is confusing to me is that this [the 2005 amendment] is [in] a Code Correction Bill. A technical 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?

To restate that, code correction bills never intentionally make substantive changes. But the 2005 amendment added back the phrase "sentence imposed on the person" that had been removed in 1995. Based on that language, Redmond's argument that he could move to modify his second sentence within 365 days of commencement of that second consecutive sentence was denied by the Court:
Concluding that Indiana Code § 35-38-1-17(a) requires a defendant to file a motion to modify within 365 days after he begins serving the entire sentence imposed him (and not individual sentences under the same cause number) and the triggering date is the date the trial court imposes the sentence, we affirm the trial court.
The fact that the 2005 amendment was part of a Code technical correction bill was not raised by Redmond, but presumably it would not have made a difference, as Indiana's courts have historically refused to look beyond the enrolled bill to determine legislative intent.(I don't know whether it was raised in the petition for transfer, but transfer was denied.)

The ILB attempted at the time, as detailed in this Feb. 2, 2009 ILB entry, to find out what had been behind the change that resulted in the phase "imposed on the person" being reinserted into IC 35-38-1-17. Why did the 2005 technical corrections bill look back 10 years to add back wording deleted by a substantive amendment in 1995?

Here is subsection (a) from the 2005 technical corrections bill. PL 2-2005 (HEA 1398), SECTION 123, which begins on p. 98, sets out the amendment. Via the type-codes, you can see the language of the provision both before and after the 2005 change:

    SECTION 123. 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) the defendant 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.

Now the news: IC 35-38-1-17 was revisited by the Indiana Code Revision Commission this week.

The Commission held its second, and final meeting of the interim on Dec. 7, to approve the recommendations of the legislative services agency (LSA) staff for this year's Code technical correction bills.

I was in the extremely-sparse audience* and was surprised to hear the LSA staff recommend a last minute addition to one of the technical correction bills for the upcoming 2010 session -- to change IC 35-38-1-17(a)(1) back to the way it had been before it was "corrected" by the earlier technical correction bill in 2005.

This is from the LSA handout:

RE: [4] Including the SECTION in PD 3670 amending IC 35-38-1-17(a).

The 2005 TC bill [P.L.2-2005] amended IC 35-38-1-17 to make a technical correction. Before the 2005 amendment, IC 35-38-1-17(a) read in pertinent part as follows:

Sec. 17. (a) Within three hundred sixty-five (365) days after:
(1) the defendant begins serving his sentence;
To eliminate the word "his", a word importing gender, the 2005 TC bill amended IC 35-38-1-17(a)(1) as follows:
Sec. 17. (a) Within three hundred sixty-five (365) days after:
(1) the defendant a convicted person begins serving his the sentence imposed on the person;
The Court of Appeals, in Redmond v. State, 900 N.E.2d 40 (2009), in deciding the substantive issue presented in the case, found substantive effect in the change made in IC 35-38-1-17(a)(1) by the 2005 TC bill. Because the change made in the 2005 TC bill was intended to have no substantive effect, PD 3670 would undo that change, amending IC 35-38-1-17(a)(1) as follows:
SECTION 1. IC 35-38-1-17, AS AMENDED BY P.L.2-2005, SECTION 123, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 17. (a) Within three hundred sixty-five (365) days after:
(1) a convicted person begins serving the person's sentence; imposed on the person;
(Interestingly, this handout does not explain the addition in 2005 of the phrase "imposed by the party".)

The LSA staffer concluded his presentation by stating that "because the change made in the 2005 TC bill was intended to have no substantive effect," this amendment to be added to the 2010 technical correction bill would simply reverse the change made in the 2005 code correction bill.

Cheif Judge John Baker, who was in attendance representing the Court, immediately addressed the chair with the observation: When we are going backward, we still have to address the question of what is the legislative intent as to when a person may seek to amend his or her sentence without seeking the prosecutor's approval when consecutive sentences have been imposed. To the extent we (the Court) thought it was unclear, he noted, it will be again after this amendment.

Discussion ensued, including a suggestion to ask the Criminal Code Commission, or to bring this issue before the legislative judiciary committees, to make the decision of what language should be used to convey the General Assembly's intent. The members agreed that this issue should not be addressed by the Commission in a technical corrections bill.

In short, while the 2005 "technical amendment" in fact worked a substantive change, the suggestion this week to "correct it" in the 2010 technical corrections bill would have effectuated a second substantive change.
___________
* I was at Monday's Code Revision Commission meeting to learn what progress has been made in addressing issues I have raised in the past two years about assuring that all the active Indiana statute law is included in the Indiana Code. What I found out was very disappointing; I will be writing about it later this month.

Posted by Marcia Oddi on December 10, 2009 09:35 AM
Posted to Ind. App.Ct. Decisions