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
OF THE CASE
Appellant-Defendant, Kevin Barber (Barber), appeals from the
trial court's denial of his motion to modify his
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.
AND PROCEDURAL HISTORY
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
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.
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.
Barber now appeals. Additional facts will be ...