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Barber v. State

Court of Appeals of Indiana

December 5, 2018

Kevin Michael Barber, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Monroe Circuit Court Trial Court Cause No. 53C02-1208-FC-788 The Honorable Marc R. Kellams, Judge

          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

          Riley, Judge.

         STATEMENT OF THE CASE

         [¶1] Appellant-Defendant, Kevin Barber (Barber), appeals from the trial court's denial of his motion to modify his sentence.

         [¶2] We affirm.

         ISSUE

         [¶3] Barber presents one issue on appeal, which we restate as: Whether the trial court abused its discretion when it denied his motion to modify his sentence.

         FACTS AND PROCEDURAL HISTORY

         [¶4] On August 24, 2012, the State filed an Information, charging Barber with child molesting, a Class C felony; performing sexual conduct in the presence of a minor, a Class D felony; and dissemination of matter harmful to minors, a Class D felony. On December 12, 2012, Barber pleaded guilty pursuant to a plea agreement which provided for an eight-year sentence on the child molesting offense and two-year sentences for each of the Class D felonies. Both Class D felony sentences were entirely suspended to probation and were to be served concurrently to one another but consecutively to the eight-year sentence for the child molesting offense. The trial court accepted Barber's guilty plea and sentenced him according to the terms of his plea agreement.[1]

         [¶5] On November 22, 2015, with presentencing and good-time credit, Barber completed the executed portion of his sentence. He then began serving his parole for the child molesting offense and his probation for the Class D felonies. On October 4, 2017, Barber moved the trial court to modify his sentence. On November 8, 2017, the trial court held the first of two hearings on Barber's motion. Barber explained at the hearing that he sought to have his sentence for Class C child molesting reduced or suspended so that he could be discharged from parole, which he found to be overly restrictive on his ability to travel to attend school. The Deputy Prosecutor discussed various possibilities regarding restructuring Barber's sentence, but he stated that, "I would at this point not want to, to reduce his sentence in any way." (Appellant's App. Vol. II, p. 207). The trial court expressed doubt that it could grant Barber the relief he sought even if it were inclined to do so, as Barber had already completed the executed portion of his sentence. Barber, who was about to be discharged from his probation for the Class D felonies, agreed to extend the period of his probation to allow the trial court additional time to research the issue.

         [¶6] On December 1, 2017, Barber filed a brief in support of his motion for sentence modification. Barber claimed that he had two years, four months, and twenty-seven days remaining on his parole for the child molesting offense. Barber argued that the terms of his sentence had placed an "unnecessary burden" on his re-entry into society. (Appellant's App. Vol. II, p. 219). On December 6, 2017, the trial court held a second hearing on Barber's motion at which the parties presented additional argument but no evidence. On January 16, 2018, the trial court summarily denied Barber's motion to modify his sentence.

         [¶7] Barber now appeals. Additional facts will be ...


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