COA: Parole not part of sentence modification statute, trial court lacked authority to modify to probation

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An Indiana man’s request to modify his sentence to probation instead of parole has been denied by the Court of Appeals of Indiana, as it concluded the trial court didn’t have authority to make the change.

In August 2018, Joseph L. Wilson pleaded guilty to Level 5 felony incest in exchange for the state dropping a charge of Class A misdemeanor invasion of privacy. He was sentenced to four years executed.

Wilson completed his sentence in December 2020 and was placed on parole.

The following September, Wilson moved to modify his sentence, arguing “it would be in the best interest of [Wilson] if his sentence were modified and he were released from parole and would service [sic] the remainder of his sentence on supervised probation.” But Jay Circuit Court Judge Brian Hutchison expressed doubt as to whether he had authority to modify Wilson’s, repeatedly saying, “I don’t know.”

Wilson filed a post-hearing memorandum in support of sentence modification. But in October 2021, the trial court denied his motion, writing, “Insomuch as this Court did not suspend any portion of the sentence imposed (which would have allowed for probation), and that the Court knows of no lawful mechanism whereby probation can be imposed after service of a fully executed sentence, the Court finds that the relief sought is not available to [Wilson].”

On appeal, Wilson argued Indiana Code § 35-38-1-17(e) allows the sentencing court to modify a sentence “any time after the Defendant begins serving their sentence.” Also, he said the statute “contains no specific language confining its application to the executed portion of the Defendant’s sentence, nor does it preclude application to defendants on parole at the time of the petition.”

The Court of Appeals wasn’t convinced, finding the statute doesn’t mention the word “parole.”

“Here the legislature chose to exclude the word ‘parole’ from the plain language of Indiana Code section 35-38-1-17,” Judge Melissa May wrote. “Based thereon, we conclude the legislature intended for the trial court’s authority to modify a sentence to extend only until the sentence had been served and not while the person was on parole.”

Citing Majors v. Broglin, 531 N.E.2d 189 (Ind. 1988), the appellate court further opined that a person who is on parole “is not discharged [from parole] until the Indiana Parole Board acts to discharge him.”

The case is Joseph L. Wilson v. State of Indiana, 21A-CR-2308.

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