MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Jan 22 2019, 6:24 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
John D. Parks                                            Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John D. Parks,                                           January 22, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1220
        v.                                               Appeal from the Newton Superior
                                                         Court
State of Indiana,                                        The Honorable Daniel J. Molter,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         56D01-1107-FB-8



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019                   Page 1 of 10
                                          Statement of the Case
[1]   John D. Parks appeals the trial court’s denial of his Indiana Trial Rule 60(B)

      motion for relief from judgment. Parks raises a single issue for our review,

      which we restate as whether the trial court abused its discretion when it denied

      his motion for relief from judgment.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On July 12, 2011, the State charged Parks with one count of dealing in

      methamphetamine, as a Class B felony, and one count of possession of

      methamphetamine, as a Class D felony. Thereafter, Parks entered into a plea

      agreement with the State in which Parks agreed to plead guilty to one count of

      dealing in methamphetamine, as a Class B felony, and, in exchange, the State

      dismissed the other count. The plea agreement also provided for Parks to be

      sentenced to twenty years in the Department of Correction. The trial court

      accepted Parks’ plea agreement, entered judgment of conviction, and sentenced

      him to a term of twenty years.1


[4]   On March 2, 2015, Parks requested that he be allowed to participate in a

      purposeful incarceration program. The trial court granted Parks’ request and




      1
        On the same day, the trial court sentenced Parks to a term of eight years for a conviction under a separate
      cause number. The trial court ordered Parks’ twenty-year sentence in the instant offense to run consecutive
      to his eight-year sentence in the other cause number.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019                  Page 2 of 10
      permitted Parks to enter a therapeutic community program. The court also

      indicated that it “will consider a sentencing modification if [Parks] successfully

      completes” the program. Appellant’s App. Vol. II at 19.


[5]   On February 23, 2016, Parks successfully completed the therapeutic community

      program. Accordingly, Parks filed a motion to modify his sentence. In that

      motion, Parks stated that he had completed the therapeutic community

      program and that he had completed four additional self-help programs. Those

      additional programs included: a bible study correspondence course, a Power

      Over Addiction correspondence course, a six-month recovery class, and a

      purposeful living course. The trial court held a hearing on Parks’ motion.

      During the hearing, Parks requested that the trial court modify the remainder of

      his sentence to three years on work release followed by two years on home

      detention. The trial court denied Parks’ motion.


[6]   On August 22, Parks filed a second motion to modify his sentence. In that

      motion, Parks stated that he had been accepted into a residential recovery

      program called the Wabash Valley Teen Challenge. At a hearing on Parks’

      second motion, the trial court determined that the Teen Challenge program was

      not an appropriate program for Parks.2 Accordingly, the trial court took Parks’

      second motion under advisement and allowed him the opportunity to find a

      suitable facility for his treatment. Thereafter, Parks was accepted into a




      2
          At the time of the hearing on Parks’ second motion, Parks was thirty-five years old.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019           Page 3 of 10
      residential program at Home for Hope, and Parks requested that the court hold

      another hearing on his second motion to modify his sentence.


[7]   The court held an additional hearing on Parks’ second motion on November

      13, 2017. During the hearing, Parks testified about the classes he had taken

      while incarcerated. Specifically, Parks testified that he


              went through cognitive thinking[, which] changed my behavior,
              my ways of addiction, through the PLUS program. Then when I
              filed to be purposely incarcerated—and thanks to you granting
              that motion—I was able to undergo a twelve-step program while
              incarcerated, the Therapeutic Community, TC CLIFF program
              and graduated that as well. Throughout both programs I’ve been
              leadership within the programs, and after graduating the CLIFF
              program, the PLUS program thought that I was an asset to the
              program and called me back over there to be in leadership again,
              which I just completed a DOL as a lead aide. As a lead aide in
              the PLUS program in a maximum security prison, you have to
              hold other offenders accountable for noise level, going into a cell
              that’s not their own, for being on the top range, pretty much
              doing the work of a correctional officer while we’re in there. We
              have to write other offenders up and we have reflection groups,
              lead community meetings, mentoring process and I’ve been
              doing this for the last three years. Along with that, I’ve also took
              [sic] advantage of all the correspondence courses that I could
              have access to such as Celebrate Recovery, Mothers Against
              Methamphetamines and things of that nature while I’ve been
              incarcerated. I’ve done every program in the facility and I’ve
              remained conduct and report free for around six years now. And
              there’s nothing else for me to do at the facility except to move
              forward in my recovery.


      Tr. Vol. 2 at 25-26.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019   Page 4 of 10
[8]   The State objected to Parks’ modification request because Parks still had eight

      years remaining on his sentence pursuant to the terms of his plea agreement.

      The State also contended that, while Parks should be “stepped down” from the

      maximum-security facility, it was “premature” to release Parks directly to a

      residential program from his current placement. Id. at 28. At the conclusion of

      the hearing, the trial court agreed with the State and found that Parks had too

      much time remaining on his sentence for a modification to be appropriate and

      that Parks was not yet “ready” for the residential program. Id. at 30.

      Accordingly, the trial court denied Parks’ second motion to modify his

      sentence. However, in its order denying Parks’ motion, the court

      recommended that Parks “be transferred to a minimal secured facility and

      authorize[d] the placement of [Parks] in a work release program through the

      Department of Correction.” Appellant’s App. Vol. II at 59.


[9]   On March 5, 2018, Parks, pro se, filed a motion for relief from judgment

      pursuant to Indiana Trial Rule 60(B). In his motion, Parks contended that the

      trial court made a mistake when it recommended that he be moved to a less

      secure facility but did not also modify his sentence. Specifically, Parks asserted

      that, despite the trial court’s recommendation, he was not eligible to be moved

      to a minimum-security facility or to be placed in a work-release program

      without a sentence modification because he had too much time left on his

      sentence. He also asserted that his attorney had failed to present to the trial

      court the legislative intent behind the statute on sentence modification and a




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019   Page 5 of 10
       complete list of his accomplishments and that it was excusable neglect to rely

       on his attorney.


[10]   The State responded to Parks’ motion and asserted that his motion was an

       improper substitute for a direct appeal; that the trial court had already been

       presented with the information on Parks’ accomplishments that Parks contends

       his attorney did not present; and that Parks had not made a showing of mistake,

       surprise, or excusable neglect. On April 13, the trial court denied Parks’ motion

       without a hearing. This appeal ensued.


                                        Discussion and Decision
[11]   On appeal, Parks, pro se, asserts that the trial court abused its discretion when it

       denied his motion for relief from judgment under Indiana Trial Rule 60(B)(1). 3

       Trial Rule 60(B) provides, in relevant part, that “[o]n motion and upon such

       terms as are just the court may relieve a party . . . from a judgment . . . for the

       following reasons: (1) mistake, surprise, or excusable neglect . . . .” A movant

       for relief from judgment under Trial Rule 60(B)(1) “must allege a meritorious

       claim or defense.”


[12]   As we have explained:




       3
         Parks indicated in his motion for relief from judgment that he was filing that motion pursuant to Indiana
       Trial Rule (60)(B)(1) and (8). However, he made no argument in his motion regarding subsection (8), nor
       does he make any argument under that subsection in his brief on appeal. Accordingly, we will treat Parks’
       motion as one filed pursuant only to Indiana Trial Rule 60(B)(1).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019                 Page 6 of 10
               A Trial Rule 60(B)(1) motion does not attack the substantive,
               legal merits of a judgment, but rather addresses the procedural,
               equitable grounds justifying the relief from . . . a judgment.
               Moreover, a Trial Rule 60(B)(1) motion is addressed to the trial
               court’s equitable discretion, with the burden on the movant to
               affirmatively demonstrate that relief is necessary and just.


       Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1254 (Ind. Ct. App. 1999)

       (citations omitted), trans. denied. In light of the equitable nature of a request

       under Trial Rule 60(B)(1), our standard of review is deferential:


               Our standard of review is limited to determining whether the trial
               court abused its discretion. An abuse of discretion may occur if
               the trial court’s decision is clearly against the logic and effect of
               the facts and circumstances before the court, or if the court has
               misinterpreted the law. . . . The trial court’s discretion is
               necessarily broad in this area because any determination of
               excusable neglect, surprise, or mistake must turn upon the unique
               factual background of each case. Moreover, no fixed rules or
               standards have been established because the circumstances of no
               two cases are alike. . . . Furthermore, reviewing the decision of
               the trial court, we will not reweigh the evidence or substitute our
               judgment for that of the trial court.


       Id. at 1253 (citations omitted).


[13]   Here, Parks contends that the trial court abused its discretion when it denied his

       Trial Rule 60(B) motion because the Department of Correction “was incapable

       of effectuating” the intent of the trial court that Parks be moved to a minimum-

       security facility without a modification to his sentence. Appellant’s Br. at 7. In

       essence, Parks contends that the trial court made a mistake when it


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019   Page 7 of 10
       recommended that he be moved to a less secure facility but did not also modify

       his sentence to allow that move to occur.4 In response, the State asserts that

       Parks has not met his burden to demonstrate that the trial court made a

       mistake. We must agree with the State.


[14]   Here, Parks filed two motions to modify his sentence. In his first motion, Parks

       informed the trial court that he had completed the therapeutic community

       program as well as four other rehabilitative programs. He also asserted that,

       during his time in confinement, he has “remained clear of any major conduct

       reports[.]” Appellant’s App. Vol. II at 39. Further, during the hearing on his

       first motion to modify, Parks informed the trial court that he “has enrolled in

       and completed each program” available to him through the system. Tr. Vol. II

       at 3. Additionally, Parks stated that he had been assigned to leadership and

       management roles in his programs. At the end of that hearing, the court

       acknowledged that Parks “has done everything afforded to him under the rules

       and regulations of the Department of Correction.” Id. at 6. But, even in light

       of that acknowledgment, the court denied Parks’ first motion to modify his

       sentence.


[15]   Parks then filed his second motion to modify his sentence. In that motion,

       Parks informed the trial court that he had been accepted into a residential

       recovery program. The trial court held two hearings on Parks’ second motion.



       4
         In his Trial Rule 60(B) motion, Parks asserted both mistake and excusable neglect. However, on appeal,
       Parks only asserts that the trial court made a mistake.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019               Page 8 of 10
       During the first hearing, Parks stated that he has “done all the programs” that

       his facility has to offer. Id. at 12. Then, during the second hearing, Parks

       reiterated all of the programs in which he has participated. And he repeated

       that he has “done every program in the facility” and that he has “remained

       conduct and report free for around six years now.” Id. at 26. Even the State

       commended Parks on his accomplishments during the second hearing. But,

       again, the trial court declined to modify Parks’ sentence and, accordingly,

       denied his second motion.


[16]   The record indicates that Parks presented the trial court with all of the

       information regarding his accomplishments. And the record demonstrates that

       the trial court both considered and acknowledged those accomplishments.

       Thus, it is clear that the trial court considered the relevant evidence before it

       decided not to amend Parks’ sentence.


[17]   Still, Parks asserts that the trial court made a mistake when it denied his motion

       to modify because the Department of Correction could not implement the trial

       court’s recommendation to place him in a less secure facility without a

       preceding sentence modification. However, the trial court’s recommendation

       that Parks be moved out of a maximum-security facility was simply a

       nonbinding recommendation to the Department of Correction. Indeed, even

       the trial court stated that it could recommend that Parks be moved to a

       minimum-security facility but that the Department of Correction “do[es] not

       have to do that.” Id. at 29. Accordingly, it is clear that the trial court



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019   Page 9 of 10
       understood that it was possible that the Department of Correction would not

       move Parks to a less secure facility.


[18]   As discussed above, the trial court considered all of Parks’ achievements and

       accomplishments but still declined to modify his sentence. Thus, we cannot say

       that the trial court made a mistake when it denied Parks’ motion to modify his

       sentence. Because Parks has not met his burden of demonstrating that the trial

       court made a mistake when it denied his motion to modify his sentence, we

       cannot say that the trial court abused its discretion when it denied Parks’ Trial

       Rule 60(B)(1) motion for relief from judgment.5 We therefore affirm the trial

       court.


[19]   Affirmed.


       Pyle, J., and Altice, J., concur.




       5
         In their briefs on appeal, the parties dispute whether the consent of the prosecuting attorney was required to
       modify Parks’ sentence in light of an amendment to Indiana Code Section 35-38-1-17 that occurred in 2018.
       But we need not determine whether the prosecuting attorney’s consent was required to resolve this appeal.
       Even if the trial court did not need the consent of the prosecuting attorney to modify his sentence, as Parks
       contends, the trial court still did not make a mistake when it denied his Trial Rule 60(B) motion for the
       reasons discussed above.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1220 | January 22, 2019                  Page 10 of 10
