Kevin Michael Barber v. State of Indiana

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