Revised sentence modification statute not applicable in defendant’s case

April 30, 2015

A trial court did not err in denying a man’s petition to modify his sentence after finding that the current version of the sentencing modification statute is not applicable to his sentence, which he began serving in 1989. The Indiana Court of Appeals panel relied on a January decision by its colleagues to affirm the denial of Mitchell Swallows’ petition.

In Mitchell Swallows v. State of Indiana, 03A05-1412-CR-549, Swallows filed a petition to modify his 100-year sentence handed down in 1989 for two counts of attempted murder, four counts of criminal confinement, one count of attempted criminal deviate conduct and one count of rape. On July 1, 2014, I.C. 35-38-1-17 removed language that the prosecuting attorney had to consent to the sentence modification before a trial court could grant the petition.

The trial judge denied Swallow’s petition, filed after the revised statute took effect, because it relied on the statute in effect at the time Swallows was sentenced, which required the prosecutor’s consent. Swallows argued he is entitled to the benefit of the revised sentence modification statute, but the COA rejected his claim, citing Hobbs v. State, 26 N.E. 3d 983, 985 (Ind. Ct. App. 2015).

“Noting the plain meaning of the savings clause, and following the intent of the Legislature and our court’s reasoning in Hobbs, we conclude that the current version of Indiana Code section 35-38-1-17, which became effective July 1, 2014, does not apply to Swallows’s petition to modify a sentence that he began serving in 1989,” Judge James Kirsch wrote.

This issue recently divided another panel on the COA, with majority finding that a man could file his petition under the 2014 statute because it’s the filing date that is applicable, not the date of the crime or the sentence.



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