savings clause in Indiana

2020See Jaco v. State, 49 N.E.3d 171, 174 (Ind. Ct. App. 2015) (discussing Hobbs, 26 N.E.3d 983 ; Carr v. State, 33 N.E.3d 358, 358-359 (Ind. Ct. App. 2015) (citing the savings clause and Hobbs and concluding the version of Ind. Code § 35-38-1-17 which became effective July 1, 2014, did not apply where Carr’s crime was committed in 1999), trans. denied; Swallows, 31 N.E.3d Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020 Page 5 of 7 at 545-547 (noting the plain meaning of the savings clause and the reasoning in Hobbs and concluding that the version of Ind. Code § 35-38

2015See Carr v. State, 33 N.E.3d 358, 358-359 (Ind.Ct.App.2015) (citing the savings clause and Hobbs and concluding the version of Ind.Code § 35-38-1-17 which became effective July 1, 2014, did not apply where Carr’s' crime was committed in 1999),- trans. denied; Swallows, 31 N.E.3d at 545-547 (noting the plain meaning of the savings clause and the reasoning in Hobbs and concluding that the version of Ind.Code § 35-38-1-17 which became effective on July 1, 2014, did not apply to Swallows’s petition to modify a sentence that he began serving in 1989). 1 Additionally, in Johnson v. State, we conclud

2016We also observe that this Court has declined to take into account lesser penalties of the new criminal code when addressing the appropriateness of a sentence for a crime committed under prior law “because of the clear, unambiguous language of the savings clause statutes.” Marley v. State, 17 N.E.3d 335, 341 (Ind. Ct. App. 2014).

2015Because the revised statute would have no ameliorative effect on Moore’s sentence, we find this Court’s recent discussion of the savings clause in Marley v. State, 17 N.E.3d 335 (Ind.Ct.App.2014), trans. denied, inapplicable here.

2015See Carr v. State, 33 N.E.3d 358, 358-359 (Ind.Ct.App.2015) (citing the savings clause and Hobbs and concluding the version of Ind.Code § 35-38-1-17 which became effective July 1, 2014, did not apply where Carr’s' crime was committed in 1999),- trans. denied; Swallows, 31 N.E.3d at 545-547 (noting the plain meaning of the savings clause and the reasoning in Hobbs and concluding that the version of Ind.Code § 35-38-1-17 which became effective on July 1, 2014, did not apply to Swallows’s petition to modify a sentence that he began serving in 1989). 1 Additionally, in Johnson v. State, we conclud

2015The pre-2014 version of the statute which requires prosecutorial consent is therefore applicable to this petition for sentence modification filed by the Johnsons. 5 See Carr v. State, 33 N.E.3d 358, 359 (Ind.Ct.App.2015) (defendant filing petition on July 10, 2014 for modification of sentence imposed in 2000 not entitled to modification without prosecutorial consent under revised statute), trans. pending; Swallows v. State, 31 N.E.3d 544 (Ind.Ct.App.2015) (defendant filing petition on October 1, 2014 for modification of sentence imposed in 1989 not entitled to modification under revised statut

2020See Jaco v. State, 49 N.E.3d 171, 174 (Ind. Ct. App. 2015) (discussing Hobbs, 26 N.E.3d 983 ; Carr v. State, 33 N.E.3d 358, 358-359 (Ind. Ct. App. 2015) (citing the savings clause and Hobbs and concluding the version of Ind. Code § 35-38-1-17 which became effective July 1, 2014, did not apply where Carr’s crime was committed in 1999), trans. denied; Swallows, 31 N.E.3d Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020 Page 5 of 7 at 545-547 (noting the plain meaning of the savings clause and the reasoning in Hobbs and concluding that the version of Ind. Code § 35-38

2015The pre-2014 version of the statute which requires prosecutorial consent is therefore applicable to this petition for sentence modification filed by the Johnsons. 5 See Carr v. State, 33 N.E.3d 358, 359 (Ind.Ct.App.2015) (defendant filing petition on July 10, 2014 for modification of sentence imposed in 2000 not entitled to modification without prosecutorial consent under revised statute), trans. pending; Swallows v. State, 31 N.E.3d 544 (Ind.Ct.App.2015) (defendant filing petition on October 1, 2014 for modification of sentence imposed in 1989 not entitled to modification under revised statut

2015But see Moore v. State, 30 N.E.3d 1241, 1250 (Ind. Ct. App. 2015).2 Tidmore contends that the savings clause does not apply to Section 35-38-1-17 because the amended statute is a procedural remedy, and not a substantive remedy.

2015KIRSCH, J., and MAÍHIAS, J„ concur. .But see Moore v. State, 30 N.E.3d 1241, 1245-1250 (Ind.Ct.App.2015) (concluding in part that the 2014 amendment constituted a procedural change, that the savings clause did not prevent a person convicted prior to July 1, ■ 20 i 4 from bringing his petition under the statute as revised by the .2014 amendment, and that the trial court had the authqrity to entertain Moore’s petition without the consent of the prosecutor), trans. not sought. .

2015Indeed, subsection (b) of the savings clause clearly states: “The general assembly does not intend the doctrine of amelioration (see Vicory v. State [ 272 Ind. 683 ], 400 N.E.2d 1380 (Ind.1980)) to apply to any SECTION of P.L.158-2013 or HEA 1006-2014.” I.C. § 1-1-5.5-21 (Supp. 2014). [34] An ameliorative amendment is one in which the maximum penalty for a crime is reduced.

2015Indeed, subsection (b) of the savings clause clearly states: “The general assembly does not intend the doctrine of amelioration (see Vicory v. State [ 272 Ind. 683 ], 400 N.E.2d 1380 (Ind.1980)) to apply to any SECTION of P.L.158-2013 or HEA 1006-2014.” I.C. § 1-1-5.5-21 (Supp. 2014). [34] An ameliorative amendment is one in which the maximum penalty for a crime is reduced.

2026In Nylen v. Park Doral Apartments, under a savings clause, tenants remained liable for rent as it accrued monthly and late fees were appropriately assessed through the natural expiration of a lease term. 535 N.E.2d 178 (Ind. Ct. App. 1989). [47] Here, however, the trial court assessed a monthly late fee for future Rent and then accelerated the due date of that Rent which included prospectively assessed late fees.

2013See Nylen, 535 N.E.2d at 182 (holding that the savings clause in a rental agreement was valid and enforceable and that “[i]t is entirely consistent with existing Indiana case law to uphold a lease provision which states that the lessee’s liability for rent for the balance of the lease term will continue, notwithstanding an order of eviction,” and concluding that the award of future rents based upon the rental agreement was not contrary to law); Grueninger, 413 N.E.2d at 1043 (upholding a lease provision which authorized the landlord to re-enter and re-let the leased premises without terminatin

2020See Jaco v. State, 49 N.E.3d 171, 174 (Ind. Ct. App. 2015) (discussing Hobbs, 26 N.E.3d 983 ; Carr v. State, 33 N.E.3d 358, 358-359 (Ind. Ct. App. 2015) (citing the savings clause and Hobbs and concluding the version of Ind. Code § 35-38-1-17 which became effective July 1, 2014, did not apply where Carr’s crime was committed in 1999), trans. denied; Swallows, 31 N.E.3d Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020 Page 5 of 7 at 545-547 (noting the plain meaning of the savings clause and the reasoning in Hobbs and concluding that the version of Ind. Code § 35-38

2015See Carr v. State, 33 N.E.3d 358, 358-359 (Ind.Ct.App.2015) (citing the savings clause and Hobbs and concluding the version of Ind.Code § 35-38-1-17 which became effective July 1, 2014, did not apply where Carr’s' crime was committed in 1999),- trans. denied; Swallows, 31 N.E.3d at 545-547 (noting the plain meaning of the savings clause and the reasoning in Hobbs and concluding that the version of Ind.Code § 35-38-1-17 which became effective on July 1, 2014, did not apply to Swallows’s petition to modify a sentence that he began serving in 1989). 1 Additionally, in Johnson v. State, we conclud

2015However, the court determined that even if Rondon had prevailed under the first prong, his argument would fail under the second prong because “[a]mendments to a law that are coupled with a savings clause do not create two similarly situated groups of people.” Rondon, 711 N.E.2d at 513 . “ ‘Criminal statutes apply exclusively *1067 to one class of people, those who violate the law, and they relate to the specific point in time that a violation occurs.’ ” Id. (quoting Rivera v. State, 179 Ind.App. 295 , 385 N.E.2d 455, 457 (1979)).

2015However, the court determined that even if Rondon had prevailed under the first prong, his argument would fail under the second prong because “[a]mendments to a law that are coupled with a savings clause do not create two similarly situated groups of people.” Rondon, 711 N.E.2d at 513 . “ ‘Criminal statutes apply exclusively *1067 to one class of people, those who violate the law, and they relate to the specific point in time that a violation occurs.’ ” Id. (quoting Rivera v. State, 179 Ind.App. 295 , 385 N.E.2d 455, 457 (1979)).

1994Most courts, however, including the Southern District of Indiana, “have found passive restraint claims not expressly preempted, because the preemption clause does not explicitly mention common law, and because the savings clause, when considered in connection with the preemption clause, makes ambiguous Congress’s intent with respect to the preemption of state common law claims.” See Heath, 756 F.Supp. at 1147 (Citations omitted.).

1994Most courts, however, including the Southern District of Indiana, "have found passive restraint claims not expressly preempted, because the preemption clause does not explicitly mention common law, and because the savings clause, when considered in connection with the preemption clause, makes ambiguous Congress's intent with respect to the preemption of state common law claims." See Heath, 756 F. Supp. at 1147 (Citations omitted.).

2020See also Vazquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015) (discussing the statutory change and holding that the legislature has since amended the statute to expressly provide for retroactivity).

2015Therefore, the savings clause did apply to the 2014 amendment to Section 35- 38-1-17. [8] However, the legislature subsequently amended the statute, while Tidmore’s appeal was pending, to allow for retroactive application, subject to certain conditions.3 Vasquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015).

2016See also Schaadt v. State, 30 N.E.3d 1 (Ind. Ct. App. 2015), Ellis v. State, 29 N.E.3d 792, 801 (Ind. Ct. App. 2015).

2015See Schaadt v. State, 30 N.E.3d 1, 3 (Ind.Ct.App.2015) (holding that the savings clause did not violate the equal privileges and immunities clause of the Indiana Constitution where the defendant would have faced lesser sentencing ranges had he committed his offense after July 1, 2014).

2015See Willis, 567 N.E.2d at 1172 . [52] Subsection (b) of the savings clause also does not bar application of the revised statute to petitions filed after July 1, 2014.

2015See Willis, 567 N.E.2d at 1172 . [52] Subsection (b) of the savings clause also does not bar application of the revised statute to petitions filed after July 1, 2014.

2015However, the court determined that even if Rondon had prevailed under the first prong, his argument would fail under the second prong because “[a]mendments to a law that are coupled with a savings clause do not create two similarly situated groups of people.” Rondon, 711 N.E.2d at 513 . “ ‘Criminal statutes apply exclusively *1067 to one class of people, those who violate the law, and they relate to the specific point in time that a violation occurs.’ ” Id. (quoting Rivera v. State, 179 Ind.App. 295 , 385 N.E.2d 455, 457 (1979)).

2015However, the court determined that even if Rondon had prevailed under the first prong, his argument would fail under the second prong because “[a]mendments to a law that are coupled with a savings clause do not create two similarly situated groups of people.” Rondon, 711 N.E.2d at 513 . “ ‘Criminal statutes apply exclusively *1067 to one class of people, those who violate the law, and they relate to the specific point in time that a violation occurs.’ ” Id. (quoting Rivera v. State, 179 Ind.App. 295 , 385 N.E.2d 455, 457 (1979)).

2025Secondly, the savings clause also recognizes a trial court’s “inherent power” to “set aside its judgment if procured by fraud on the court.” Stonger, 776 N.E.2d at 357 .

2015T.R. 60(B); Stonger, 776 N.E.2d at 356 . [9] The second method is an independent action for fraud pursuant to the savings clause of Trial Rule 60(B), which provides, “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding . . . .” This provision reserves the power trial courts had prior to the adoption of Trial Rule 60 to relieve a party of a judgment by means of an independent action according to traditional principles of equity.

2009The savings clause "preserves those actions that seek to establish a greater safety than the minimum safety achieved by a federal regulation intended to provide a floor." Id. at 870 .

2009As discussed above, the Supreme Court held in Geter that the Safety Act's preemption provision did not expressly preempt common law tort actions notwithstanding a manufacturer's compliance with federal standards, but also held that the savings clause did not foreclose operation of ordinary preemption principles on those actions. 529 U.S. at 868-69 , 120 S.Ct. 1913 .

2015Palmer v. State, 679 N.E.2d 887 , 892 n.4 (Ind. 1997) (“The test to determine whether the legislature has enacted an ameliorative statute, where they have not expressly so stated, is whether the maximum penalty under the new statute is lower than the maximum penalty under the old.”).

2015Palmer v. State, 679 N.E.2d 887 , 892 n. 4 (Ind.1997) (“The test to determine whether the legislature has enacted an ameliorative statute, where they have not expressly so stated, is whether the maximum penalty under the new statute is lower than the maximum penalty under the old.”).

2007State v. Alcorn, 638 N.E.2d 1242 (Ind.1994).

1997Therefore, if the general rule applied, the trial court would have been correct to impose consecutive sentences totaling 180 years.- However, an exception to the general rule exists when the legislature enacts an ameliorative amendment without including a specific savings clause. 6 Id.

2015See Payne v. State, 688 N.E.2d 164, 165 (Ind. 1997) (concluding that amendment to Ind. Code § 35-50-1-2 , effective July 1, 1994, applied to defendant sentenced in 1 “A savings clause expressly states an intention that crimes committed before the effective date of the ameliorative amendment should be prosecuted under prior law.” Payne v. State, 688 N.E.2d 164 , 165 n.6 (Ind. 1997).

2015See Payne v. State, 688 N.E.2d 164, 165 (Ind. 1997) (concluding that amendment to Ind. Code § 35-50-1-2 , effective July 1, 1994, applied to defendant sentenced in 1 “A savings clause expressly states an intention that crimes committed before the effective date of the ameliorative amendment should be prosecuted under prior law.” Payne v. State, 688 N.E.2d 164 , 165 n.6 (Ind. 1997).

2017Court of Appeals of Indiana | Memorandum Decision 64A03-1702-DR-219 | June 27, 2017 Page 6 of 15 [6] Upon review, we noted that Porter County Civil Rule 3300.20 requires that “all motions shall be set for a hearing”3 and stated that [a]lthough use of the savings clause is limited, it is within the court’s discretion to construe a motion to set aside as either an independent action for fraud or as a pleading to grant relief for fraud on the court. [Jahangirizadeh v. Pazouki, 27 N.E.3d 1178, 1182 (Ind. Ct. App. 2015)].

2016Id. at 1182 .

2013See Nylen, 535 N.E.2d at 182 (holding that the savings clause in a rental agreement was valid and enforceable and that “[i]t is entirely consistent with existing Indiana case law to uphold a lease provision which states that the lessee’s liability for rent for the balance of the lease term will continue, notwithstanding an order of eviction,” and concluding that the award of future rents based upon the rental agreement was not contrary to law); Grueninger, 413 N.E.2d at 1043 (upholding a lease provision which authorized the landlord to re-enter and re-let the leased premises without terminatin

2013See Nylen, 535 N.E.2d at 182 (holding that the savings clause in a rental agreement was valid and enforceable and that “[i]t is entirely consistent with existing Indiana case law to uphold a lease provision which states that the lessee’s liability for rent for the balance of the lease term will continue, notwithstanding an order of eviction,” and concluding that the award of future rents based upon the rental agreement was not contrary to law); Grueninger, 413 N.E.2d at 1043 (upholding a lease provision which authorized the landlord to re-enter and re-let the leased premises without terminatin

2023It “is generally used in a repealing act to preserve rights and claims that would otherwise be lost.” Id. 9 at the Indiana Board or [any county property tax assessment board of appeals] as of March 21, 2022”; and 3) Lexington Square’s appeals should be remanded to the Indiana Board to determine the correct assessment “based on the general rule that [Lexington Square as the t]axpayer bears the burden of proof[.]” 6 (See Pet’r Br. at 13 (emphasis omitted), 20, 22.) In support of her position, the Assessor simply listed several Indiana cases stating that “‘in the absence of a legislative enactmen

2020See Jaco v. State, 49 N.E.3d 171, 174 (Ind. Ct. App. 2015) (discussing Hobbs, 26 N.E.3d 983 ; Carr v. State, 33 N.E.3d 358, 358-359 (Ind. Ct. App. 2015) (citing the savings clause and Hobbs and concluding the version of Ind. Code § 35-38-1-17 which became effective July 1, 2014, did not apply where Carr’s crime was committed in 1999), trans. denied; Swallows, 31 N.E.3d Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020 Page 5 of 7 at 545-547 (noting the plain meaning of the savings clause and the reasoning in Hobbs and concluding that the version of Ind. Code § 35-38

2020See Jaco v. State, 49 N.E.3d 171, 174 (Ind. Ct. App. 2015) (discussing Hobbs, 26 N.E.3d 983 ; Carr v. State, 33 N.E.3d 358, 358-359 (Ind. Ct. App. 2015) (citing the savings clause and Hobbs and concluding the version of Ind. Code § 35-38-1-17 which became effective July 1, 2014, did not apply where Carr’s crime was committed in 1999), trans. denied; Swallows, 31 N.E.3d Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020 Page 5 of 7 at 545-547 (noting the plain meaning of the savings clause and the reasoning in Hobbs and concluding that the version of Ind. Code § 35-38

2016See also Schaadt v. State, 30 N.E.3d 1 (Ind. Ct. App. 2015), Ellis v. State, 29 N.E.3d 792, 801 (Ind. Ct. App. 2015).