May, J.
Jeremy Schmitt, pro se, appeals the denial of his petition to modify sentence.
We reverse and remand.
On April 28, 2004, the State charged Schmitt with murder and Class A felony conspiracy to commit murder. On March 28, 2005, pursuant to a plea agreement, the trial court accepted Schmitt’s guilty plea and sentenced him to fifty years for Class A felony conspiracy. Schmitt appealed the sentence, and we affirmed in a memorandum decision. Schmitt v. State, No. 83A01-0507-CR321 (Ind. Ct. App. May 31, 2006) (mem. dec.), trans. denied.
On May 11, 2009, Schmitt filed a petition for modification of his sentence. The State objected. The trial court denied his petition on May 29, 2009. On November 30, 2012, Schmitt filed a petition for post-conviction relief that was denied. Schmitt appealed the denial, and we affirmed. Schmitt v. State, No. 83A05-1409-PC-425, 2015 WL 4875793 (Ind. Ct. App. Aug. 14, 2015) (mem. dec.), trans. denied.
On April 29, 2014, Schmitt filed another petition for modification of his sentence. The trial court ordered an evaluation be prepared by the Department of Correction (“DOC”). The State objected to the modification. On August 21, 2014, the trial court denied the petition.
On May 15, 2017, Schmitt filed another petition for modification of his sentence wherein he lists the many programs, educational and employment, that he has completed while incarcerated. The State objected to the modification. Prior to a ruling, on September 18, 2017, Schmitt filed a motion to reconsider. The trial court denied the petition, stating:
Defendant herein filed his Petition for Modification of Sentence to which the State responded and thereafter Defendant filed a Motion to Reconsider such sentence modification. Defendant according to his Petitions has made positive strides during his incarceration which are to be complimented. However the Court finds that such Petition should be and hereby is denied.
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At issue in this case is Indiana Code section 35-38-1-17, which defines when a trial court has authority to modify a sentence. Prior to July 1, 2014, the statute provided a defendant who had served more than 365 days of his sentence could move to have his sentence modified by the trial court, “subject to the approval of the prosecuting attorney.” Ind. Code § 35-38-l-17(b) (2013) (emphasis added). Thus, if the prosecutor did not approve, the trial court had no authority to modify a sentence.
Effective July 1, 2014, our legislature eliminated the need for the prosecuting attorney’s approval. See I.C. § 35-38-l-17(c) (2014) (providing, after defendant has served 365 days, court has authority to reduce or suspend sentence to a sentence available at the time of sentencing and “court must incorporate its reasons in the record”). However, another statute that also took effect in 2014 made the new version of Indiana Code section 35-38-1-17 inapplicable to “(1) penalties incurred; (2) crimes committed; or (3) proceedings begun; before [July 1, 2014]. Those penalties, crimes, and proceedings continue and shall be imposed and enforced under prior law as if [the new sentencing laws] had not been enacted.” I.C. § 1-1-5.5-21(a) (2014). Accordingly, if Schmitt, who was sentenced in 2005, had petitioned for sentence modification after July 1, 2014, the court could not have modified his sentence without the prosecutor’s approval. …
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Schmitt argues the trial court erred by not ordering the DOC to produce a new progress report and by not holding a hearing. Schmitt asserts these failures show “the trial court never intended to consider Schmitt’s rehabilitative efforts.”
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The trial court here did not indicate it had made a preliminary determination to reduce or suspend Schmitt’s sentence. The trial court did order the prosecutor’s office to respond to Schmitt’s petition but did not indicate in any way that it was considering granting the petition. … However, without a preliminary determination to grant Schmitt’s petition, the trial court was not required to hold a hearing or request another progress report from the DOC. See Robinett, 798 N.E.2d at 539 (trial court is not required to hold a hearing if it has not made a preliminary decision to reduce or suspend a sentence).
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We address whether the trial court abused its discretion when it denied Schmitt’s petition because it is unclear why the trial court denied the petition. Schmitt argues that because the trial court did not explain its reasons for denial, that denial could have been “premised upon the State’s objection or a belief in that the original sentence was appropriate.” The State argues that because Schmitt’s sentence was affirmed by our Court and because Schmitt has served only fifteen years of a fifty-year sentence, the trial court did not abuse its discretion when it denied Schmitt’s petition.
On May 31, 2017, the trial court ordered the prosecutor to “advise the Court on or before June 30, 2017, as to their position regarding any sentence modification.” The trial court’s order denying the modification notes the prosecutor objected. These two facts suggest the trial court may have been under the impression it was required to have prosecutorial consent to modify Schmitt’s sentence. In light of that possible confusion, we reverse and remand for the trial court to decide the petition on its merits. See Woodford, 58 N.E.3d at 287 (when it is unclear whether the trial court was operating under a misapprehension of its authority, we decline to review the order for an abuse of discretion but rather remand for the trial court to consider on the merits). If the court makes a preliminary determination that it would grant Schmitt’s petition, then the court should request documentation from the DOC and hold a hearing on Schmitt’s petition in accordance with the statutory requirements. …
Because the two-petition limit includes only such petitions as have been filed since the statute was amended in 2015, Schmitt’s petition is effectively the first petition he has filed, and prosecutorial consent was not required. Although a trial court is not required to explain its reasons for denial, because the trial court mentioned the State’s response in its order, we reverse that denial and remand for the trial court to review Schmitt’s petition on its merits.
Reversed and remanded.
Riley, J., and Mathias, J., concur.