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COA denies sentence modification to parolee

December 5, 2018

A Monroe County man gave the Indiana Court of Appeals a case of first impression when he sought to have his sentence for his child molesting conviction modified after he had already served his time and had been discharged to parole.

As part of a plea agreement, Kevin Barber was sentenced to eight years for his conviction of child molesting, a Class C felony, and two years each for conviction of Class D felony counts of performing sexual conduct in the presence of a minor and dissemination of matter harmful to minors. Both Class D felony sentences were suspended to probation to be served consecutively to the eight-year sentence.

Less than three years after pleading guilty, Barber completed the executed portion of his sentence because of pre-sentencing and good-time credit. He began serving his parole for the child molesting offense and his probation for the Class D felonies.

Barber then asked the Monroe Circuit Court to modify his sentence, telling the judge his parole was restricting his ability to travel to attend school.

After the trial court denied his motion, Barber appealed. He argued the lower court had the authority to grant relief because the sentence modification statute, Indiana Code section 35-38-1-17, does not mention parole. Barber asserted the omission is proof the Legislature did not intend to discriminate against parolees.

The Court of Appeals did not agree in Kevin Michael Barber v. State of Indiana, 18A-CR-308.

Not finding specific language in the statute, the appellate panel declined to “read into the sentence modification statute terms which would result in such a great expansion of the trial court’s jurisdiction to modify sentences.”

Moreover, the Court of Appeals pointed to subsections (e) and (f) of the statute as further supporting its conclusion. Subsection (e) directs the trial court to obtain a report from the Department of Correction about the defendant’s conduct while imprisoned, indicating the statue is only for those serving an executed sentence. Subsection (f) refers to the convicted person as currently serving a sentence.

“Again, we assume that the legislature chose its words with intent,” Judge Patricia Riley wrote for the court. “Had our General Assembly intended to expand the sentence modification statute to those who had already executed their sentences, it could have used the phrase ‘is serving or has served the sentence,’ but it did not.”

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