A man seeking to modify his already served sentence failed to convince the Indiana Supreme Court to accept his argument, though the high court rejected his position for a different reason than the Indiana Court of Appeals.
In a case of first impression, the COA in December 2018 denied Kevin Barber’s motion to modify his sentence for convictions of 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. Barber served his executed sentence and was released on parole after three years.
While serving parole, Barber asked the Monroe Circuit Court to modify his sentence because his parole status was restricting his ability to travel to school. The trial court denied his request, and the appellate court likewise 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.”
In a Wednesday per curiam opinion, the Indiana Supreme Court concurred in affirming the trial court’s denial, but for a different reason. The high court’s reasoning was based on Indiana Code section 35-38-1-17, which 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,” the court said. “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.’”
Subsection (k), in particular, notes that a convicted person who is a violent criminal may not file a petition for sentence modification under the section after 365 days have passed from the date of sentencing without the consent of the prosecuting attorney.
Here, Barber’s “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,” the high court wrote. “Barber did not have that consent.”
The high court therefore unanimously granted transfer and affirmed the trial court in Kevin Michael Barber v. State of Indiana, 19S-CR-329.