Barber v. State

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The Supreme Court affirmed the judgment of the trial court denying Defendant's motion to modify his sentence, holding that Defendant needed the prosecutor's consent to modification before the court could modify his sentence, and because Defendant did not have that consent, his motion was properly denied.

Defendant pled guilty to a Class C felony and two Class D felonies and was sentenced to eight years for the Class C felony and two years for each of the Class D felonies. After he was released on parole Defendant filed a motion to modify his sentence on the Class C felony, arguing that the terms of his sentenced placed an unnecessary burden on him as he strived to contribute positively to the community. The trial court denied the motion. The Supreme Court affirmed, holding that because Defendant was a "violent criminal," his motion to modify was governed by subsection (k), and because Defendant filed his motion more than one year after he was sentenced, he needed, but did not have, the prosecutor's consent to modification before the court could modify his sentence.

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FILED May 29 2019, 2:09 pm CLERK Indiana Supreme Court Court of Appeals and Tax Court IN THE Indiana Supreme Court Supreme Court Case No. 19S-CR-329 Kevin Michael Barber, Appellant-Defendant, –v– State of Indiana, Appellee-Plaintiff. Argued: April 11, 2019 | Decided: May 29, 2019 Appeal from the Monroe Circuit Court, No. 53C02-1208-FC-788 The Honorable Marc R. Kellams, Judge On Petition to Transfer from the Court of Appeals, No. 18A-CR-308 Per Curiam Opinion All Justices concur. Per Curiam. The Court of Appeals affirmed the trial court’s denial of Kevin Michael Barber’s motion to modify his sentence. We also affirm the trial court, but for a different reason. Barber was charged with Class C felony child molesting, Class D felony performing sexual conduct in the presence of a minor, and Class D felony dissemination of matter harmful to minors. In December 2012, Barber pled guilty pursuant to a plea agreement providing for an eight-year sentence for the Class C felony and a two-year sentence for each of the Class D felonies. The sentences on the Class D felonies were entirely suspended to probation and were to be served concurrently to each other but consecutively to the Class C felony sentence. The trial court accepted the plea agreement and sentenced Barber according to its terms. In November 2015, Barber was released on parole. In October 2017, he filed a motion to modify his sentence on the Class C felony, citing Indiana Code section 35-38-1-17 and arguing “the terms of his current sentence have placed an unnecessary burden on [him] as he re-enters everyday society and strives to contribute positively to the community.” (Appellant’s App. Vol. II, pp. 191, 219.) The State opposed the motion. The trial court denied the motion to modify Barber’s sentence. On Barber’s appeal, the Court of Appeals affirmed the trial court. See Barber v. State, 115 N.E.3d 508 (Ind. Ct. App. 2018). Indiana Code section 35-38-1-17 governs the trial court’s authority to reduce or suspend a sentence after the defendant has begun serving the sentence. The Court of Appeals affirmed the trial court’s denial of Barber’s motion to modify on grounds the statute does not authorize the court to modify a sentence after the person has been released on parole. However, we conclude the question of modification in this case is governed by the subsections of Indiana Code 35-38-1-17 addressing a “violent criminal.” (c) Except as provided in subsections (k) and (m), this section does not apply to a violent criminal. Indiana Supreme Court | Case No. 19S-CR-329 | May 29, 2019 Page 2 of 4 (d) As used in this section, “violent criminal” means a person convicted of any of the following offenses: *** (10) Child molesting (IC 35-42-4-3). *** (k) This subsection applies to a convicted person who is a violent criminal. A convicted person who is a violent criminal may, not later than three hundred sixty-five (365) days from the date of sentencing, file one (1) petition for sentence modification under this section without the consent of the prosecuting attorney. 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. Barber was convicted of child molesting and is therefore a “violent criminal.” His motion to modify is governed by subsection (k), and because Barber filed his motion more than 365 days after he was sentenced, he needed the prosecutor’s consent to modification before the court could modify his sentence. Barber did not have that consent. We grant transfer, thereby vacating the Court of Appeals opinion, see Ind. Appellate Rule 58(A), and affirm the trial court. All Justices concur. Indiana Supreme Court | Case No. 19S-CR-329 | May 29, 2019 Page 3 of 4 ATTORNEY FOR APPELLANT Andrew Penman Indianapolis, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana Indiana Supreme Court | Case No. 19S-CR-329 | May 29, 2019 Page 4 of 4

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