RICHMOND v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] In 2006, Mark Richmond was convicted of rape, criminal deviate conduct, burglary, and confinement. The trial court sentenced Richmond to 93 years in prison. After prior appellate challenges to his sentence were unsuccessful, Richmond filed motions to modify his sentence, which the trial court denied. Richmond now appeals that decision and raises two issues for our review:

1. Whether the trial court abused its discretion by denying his motions to modify his sentence; and

2. Whether his sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] This is the fourth appeal stemming from Richmond's convictions for breaking into his sister-in-law's home in 2003 and forcing her to submit to oral sex and sexual intercourse. Richmond v. State, 863 N.E.2d 925, No. 45A03-0607-CR-293 (Ind. Ct. App. 2007) (mem.) [hereinafter Richmond I]; Richmond v. State, 939 N.E.2d 707, No. 45A03-0607-CR-293 (Ind. Ct. App. 2010) (mem.) [hereinafter Richmond II], trans. denied, 950 N.E.2d 1198 (Ind. 2011); Richmond v. State, 210 N.E.3d 293, No. 22A-CR-2433 (Ind. Ct. App.) (mem.) [hereinafter Richmond III], trans. denied, 215 N.E.3d 350 (Ind. 2023). In 2006, a jury found Richmond guilty of rape as a Class B felony, criminal deviate conduct as a Class B felony, burglary as a Class B felony, and confinement as a Class D felony; the jury also found that Richmond was a habitual offender. Richmond I, 863 N.E.2d 925, No. 45A03-0607-CR-293. The trial court sentenced Richmond to 93 years of incarceration. Id.

[4] In Richmond's first appeal, this court sua sponte identified an error in the sentencing statement and remanded the case to the trial court to fix the error. Richmond I, 863 N.E.2d 925, No. 45A03-0607-CR-293. After the trial court issued an amended sentencing statement, Richmond appealed for a second time, arguing his sentence was inappropriate under Indiana Appellate Rule 7(B). Richmond II, 939 N.E.2d 707, No. 45A03-0607-CR-293. This court disagreed and affirmed Richmond's sentence. Id. More than ten years later, in 2022, Richmond filed a motion to correct erroneous sentence, which the trial court denied. Richmond III, 210 N.E.3d 293, No. 22A-CR-2433. Richmond appealed that denial and also argued that his sentence was inappropriate under Appellate Rule 7(B). Id. This court disagreed on both claims and affirmed the trial court's ruling. Id.

[5] Now to the appeal currently before us. On April 7, 2025, Richmond filed pro se motions to modify his sentence and to be placed on home detention. On April 15, the trial court “summarily denied” Richmond's motions because Richmond is a violent offender who had not received the prosecutor's consent to seek a sentence modification, as required by Indiana Code section 35-38-1-17. Appellant's App. Vol. II at 28. Richmond, still acting pro se, now appeals.

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion by Denying Richmond's Motions to Modify His Sentence

[6] Richmond contends the trial court abused its discretion by denying the motions to modify his sentence.¹ We review for an abuse of discretion a trial court's decision to grant or deny a motion to modify a sentence. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010) (citing Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999)). An abuse of discretion occurs “only if the trial court's ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Hancz-Barron v. State, 235 N.E.3d 1237, 1246 (Ind. 2024) (quoting McCoy v. State, 193 N.E.3d 387, 390 (Ind. 2022)). To the extent the trial court's ruling was based on a question of law, our review is de novo. Russell v. State, 234 N.E.3d 829, 857 (Ind. 2024) (citing State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997)), cert. denied, 145 S. Ct. 424 (2024).

[7] A convicted person may request a modification of his sentence pursuant to Indiana Code section 35-38-1-17, provided certain requirements are met. A convicted person who is a “violent criminal” may file one motion for a sentence modification without the prosecuting attorney's consent not later than 365 days from the date of sentencing; after 365 days, “a violent criminal may not file a petition for sentence modification without the consent of the prosecuting attorney.” Ind. Code § 35-38-1-17(k). Indiana Code section 35-38-1-17(d) defines a “violent criminal” as a person convicted of any of the enumerated offenses, including burglary as a Class B felony and rape.

[8] Here, Richmond does not dispute that he was convicted of rape and of burglary as a Class B felony, that this makes him a violent criminal under Indiana Code section 35-38-1-17(d), and that he filed his 2025 motions to modify his sentence more than 365 days after March 21, 2006, the date he was sentenced in this case. Instead, Richmond argues that (a) the version of Indiana Code section 35-38-1-17 in effect in 2001 governs his sentence modification requests, and (b) the State “acquiesced” to his modification motions, Appellant's Br. at 18. We address each argument in turn.

a. Governing Version of Indiana Code Section 35-38-1-17

[9] Indiana Code section 35-38-1-17, as amended in 2024, expressly states that it applies to a person who commits an offense or is sentenced before July 1, 2014; that is, prior versions of the statute do not govern a convicted person's sentence modification request regardless of when the person committed his offense or was sentenced.² I.C. § 35-38-1-17(a). Although statutes generally do not apply retroactively, statutes that contain explicit retroactivity provisions will so apply. J.B. v. State, 252 N.E.3d 910, 915 (Ind. 2025) (citing N.G. v. State, 148 N.E.3d 971, 973 (Ind. 2020)). Nevertheless, Richmond insists that the 2001 version of Indiana Code section 35-38-1-17 should govern his modification motions. In support, Richmond contends that we must apply “the law in effect at the time of conviction and sentencing.” Appellant's Br. at 16 (citing Johnson v. State, 36 N.E.3d 1130 (Ind. Ct. App. 2015), trans. denied).³ While that is generally a true statement of law, see Russell, 234 N.E.3d at 853 (citing Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007)), the Indiana General Assembly has directed us to apply the current version of Indiana Code section 35-38-1-17 irrespective of when a person was convicted and sentenced. I.C. § 35-38-1-17(a); see J.B., 252 N.E.3d at 915 (citing N.G., 148 N.E.3d at 973). Accordingly, we apply the current version of Indiana Code section 35-38-1-17, which has been in effect since before Richmond filed his modification motions.

b. Prosecutorial Consent

[10] Richmond argues that the State implicitly consented to his requested sentence modifications by failing to respond to his motions and a letter he sent to the prosecutor's office. Indiana Code section 35-38-1-17(k) does not permit a violent criminal to file a motion to modify without the consent of the prosecutor. That subsection clearly states, “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.” I.C. § 35-38-1-17(k) (emphases added). Here, the State never consented to the filing of Richmond's motions, so it was improper to file the motion in the first place. Upon an appropriate request, the trial court could have dismissed the requests for modification because they were filed without prosecutorial consent. Because the State's consent was required but never obtained, the trial court did not err by denying Richmond's modification motions.

2. Richmond's Appellate Rule 7(B) Claim Is Barred by Res Judicata

[11] Richmond also contends that his sentence is inappropriate under Appellate Rule 7(B). This claim is barred under the doctrine of res judicata. “Generally speaking, res judicata operates ‘to prevent repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies.’ ” In re Eq.W., 124 N.E.3d 1201, 1208 (Ind. 2019) (quoting Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013)).

[12] This court has already determined that Richmond's sentence was not inappropriate under Appellate Rule 7(B). Richmond II, 939 N.E.2d 707, No. 45A03-0607-CR-293. That is, there has been a final adjudication on the merits of Richmond's Appellate Rule 7(B) claim, so the doctrine of res judicata applies. Therefore, we will not review Richmond's Appellate Rule 7(B) claim.

Conclusion

[13] In sum, the trial court did not abuse its discretion by denying Richmond's motions to modify his sentence, and we cannot review Richmond's Appellate Rule 7(B) claim. We therefore affirm the trial court on all issues raised.

[14] Affirmed.

FOOTNOTES

1.   Richmond's motion to be placed on home detention is considered a motion to modify his sentence. See Keys v. State, 746 N.E.2d 405 (Ind. Ct. App. 2001) (citing State v. Porter, 729 N.E.2d 591, 593 n.1 (Ind. Ct. App. 2000)) (“If after sentencing, a defendant requests to modify his placement and be allowed to serve his sentence in a community corrections program, this is a request for a modification of sentence under Ind. Code § 35-38-1-17.”)

2.   As Richmond acknowledges in his brief, Indiana Code section 35-38-1-17 has contained this retroactivity provision since May 5, 2015. Compare Ind. Code § 35-38-1-17 (effective May 5, 2015, to June 30, 2016), with I.C. § 35-38-1-17 (effective July 1, 2014, to May 4, 2015). See also I.C. § 35-38-1-17(a) (effective July 1, 2016, to June 30, 2018); I.C. § 35-38-1-17(a) (effective July 1, 2018, to June 30, 2023); I.C. § 35-38-1-17(a) (effective July 1, 2023, to June 30, 2024).

3.   In Johnson v. State, this court had to decide whether the July 1, 2014, version of Indiana Code section 35-38-1-17 applied retroactively because that version did not include the retroactivity provision. 36 N.E.3d 1130, 1133–38 (Ind. Ct. App. 2015), trans. denied. Shortly before this court handed down Johnson, the Indiana General Assembly added the retroactivity provision. 2015 Ind. Acts 1644–46, Pub. L. No. 164-2015 § 2 (effective May 5, 2015); Johnson, 36 N.E.3d at 1145 (Bailey, J., concurring).

Felix, Judge.

Brown, J., and Scheele, J., concur.