                                                                          FILED
                                                                      Dec 05 2018, 8:16 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew Penman                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kevin Michael Barber,                                     December 5, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-308
        v.                                                Appeal from the Monroe Circuit
                                                          Court
State of Indiana,                                         The Honorable Marc R. Kellams,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          53C02-1208-FC-788



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-308 | December 5, 2018                           Page 1 of 8
                                  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




      1
[1]      Barber challenged his sentence and guilty plea in a variety of litigation, including a motion to correct
      erroneous sentence. We affirmed the trial court’s denial of Barber’s motion to correct erroneous sentence
      and, by separate order, dismissed his challenge to the appropriateness of his sentence. Barber v. State, No.
      53A01-1310-CR-464, Slip op. at 4 (Ind. Ct. App. June 10, 2014).

      Court of Appeals of Indiana | Opinion 18A-CR-308 | December 5, 2018                                  Page 2 of 8
[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,




      Court of Appeals of Indiana | Opinion 18A-CR-308 | December 5, 2018        Page 3 of 8
      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 provided as necessary.


                               DISCUSSION AND DECISION
[8]   As a matter of first impression, we must determine whether the sentence

      modification statute authorizes a trial court to modify a sentence after the

      defendant has completed the executed portion of the sentence and has been

      discharged to parole. We review a trial court’s denial of a request to modify

      sentence for an abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind.

      2010). However, we review questions of law such as the interpretation of the

      sentencing modification statute de novo. Id.


[9]   “When a statute has not previously been construed, our interpretation is

      controlled by the express language of the statute and the rules of statutory

      construction.” State v. Prater, 922 N.E.2d 746, 748 (Ind. Ct. App. 2010), trans.

      denied. “We review the statute as a whole and presume the legislature intended

      logical application of the language used in the statute, so as to avoid unjust or

      absurd results.” Id. When the language of a statute is clear and unambiguous,

      we give effect to its plain and ordinary meaning. Pierce v. State, 29 N.E.3d 1258,

      1265 (Ind. 2015). Our goal in construing a statute is to discern the legislature’s

      intent. Id.



      Court of Appeals of Indiana | Opinion 18A-CR-308 | December 5, 2018        Page 4 of 8
[10]   After entering its sentence, the trial court generally retains only the jurisdiction

       over a convicted person allotted to it by statute. State v. Harper, 8 N.E.3d 694,

       696 (Ind. 2014). Therefore, we must examine the sentencing modification

       statute to discern whether it provides jurisdiction for a trial court to modify the

       sentence of a parolee. Indiana Code section 35-38-1-17 (2016) 2 provides in

       relevant part as follows:


                 (e) At any time after:


                         (1) a convicted person begins serving the person’s
                         sentence; and


                         (2) the court obtains a report from the department of
                         correction concerning the convicted person’s conduct
                         while imprisoned;


                the court may reduce or suspend the sentence and impose a
                sentence that the court was authorized to impose at the time of
                sentencing.


       Neither party argues that the statute is ambiguous, and we do not find it to be

       so. Our examination of the express language of the statute leads us to conclude

       that the sentence modification statute is available only to convicted persons

       who are, at the time of the filing of their petition, currently executing a




       2
          This was the version of the statute in effect at the time Barber filed his petition on October 14, 2017, which
       is the relevant date for determining what version of the statute applies. State v. Lamaster, 84 N.E.3d 630, 634
       (Ind. Ct. App. 2017). The statute has been subsequently modified in a manner that does not affect the
       resolution of this appeal.

       Court of Appeals of Indiana | Opinion 18A-CR-308 | December 5, 2018                                   Page 5 of 8
       sentence. The best evidence for this conclusion is that the express language of

       the statute does not provide for such relief. Barber argues that the trial court

       had the authority to grant relief to a parolee because “the sentence modification

       statute makes no mention of parole.” (Appellant’s Br. p. 5). He contends that

       this is proof that the legislature did not intend to discriminate against parolees.

       However, when we interpret a statute, we will not read into the statute that

       which is not the expressed intent of the legislature, and it is just as important to

       recognize what the statute does not say as to recognize what it does say.

       Thompson v. State, 5 N.E.3d 383, 388 (Ind. Ct. App. 2014). Absent an express

       grant of authority by the legislature, we will not read into the sentence

       modification statute terms which would result in such a great expansion of the

       trial court’s jurisdiction to modify sentences. See Paquette v. State, 101 N.E.3d

       234, 241 (Ind. 2018) (“We may not add new words to a statute which are not

       the expressed intent of the legislature.”) (quotation omitted).



[11]   We find additional support for our conclusion in subsection (e), which provides

       conditions predicate to the trial court’s ability to modify a sentence: the

       convicted person is to have begun serving his sentence, and the trial court is to

       have obtained a report from the department of correction. The legislature’s

       directive that the trial court obtain a report from the department of correction

       concerning the defendant’s conduct while imprisoned indicates that the statute

       is only for the benefit of those currently executing sentences. When construing

       a statute, “we are obliged to suppose that the General Assembly chose the

       language it did for a reason.” Prater, 922 N.E.2d at 750. If the legislature had
       Court of Appeals of Indiana | Opinion 18A-CR-308 | December 5, 2018           Page 6 of 8
       intended to expand the possibility of sentence modification to those who had

       already completed the executed portion of their sentences and had been

       discharged to parole, it could have directed trial courts to obtain information

       more pertinent to that inquiry, such as a report from the defendant’s parole

       officer, but it did not.


[12]   Subsection (f) further supports our conclusion, providing as follows:


               (f) If the court sets a hearing on a petition under this section, the
               court must give notice to the prosecuting attorney and the
               prosecuting attorney must give notice to the victim (as defined in
               IC 35-31.5-2-348) of the crime for which the convicted person is
               serving the sentence.


       (emphasis added). The addition of the phrase “is serving the sentence” in this

       subsection, styled in the progressive, continuous tense, implies an ongoing

       action, namely that of serving the sentence. Again, we assume that the

       legislature chose its words with intent. Prater, 922 N.E.2d at 750. 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.


[13]   In addition to examining the express language of the statute, when construing a

       statute, we also consider the practical effects of any particular statutory

       interpretation. State v. Eichorst, 957 N.E.2d 1010, 1012 (Ind. Ct. App. 2011),

       trans. denied. Here, if we were to accept Barber’s proposition that the statute

       authorizes the relief he seeks, it would result in convicted persons receiving the

       Court of Appeals of Indiana | Opinion 18A-CR-308 | December 5, 2018             Page 7 of 8
       benefit of credit-time days to shorten the executed portion of their sentences

       which they would not have been entitled to after their sentences were reduced.

       For example, in this case Barber received the benefit of four years of good-time

       credit on his original eight-year sentence. If his sentence had been reduced to

       six years, he would have only been eligible for three years of good-time credit,

       resulting in a one-year windfall of credit-time. There is no indication that the

       legislature intended such a result.


[14]   In addition, we agree with the State that Barber’s reading of the statute would

       allow trial courts to interfere with the jurisdiction of our state’s Parole Board,

       which “is not subject to the supervision or control of the Courts.” White v. Ind.

       Parole Bd., 713 N.E.2d 327, 328 (Ind. Ct. App. 1999). As a consequence, any

       right to parole release in Indiana must emanate from the parole release statutes.

       Id. Having resolved this appeal on jurisdictional grounds, we do not address

       the other issues raised by Barber on appeal, and we find no abuse of the trial

       court’s discretion in denying his motion to modify his sentence.


                                              CONCLUSION
[15]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in denying Barber’s motion to modify his already-executed sentence.


[16]   Affirmed.


[17]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-308 | December 5, 2018         Page 8 of 8
