MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Jun 26 2020, 10:54 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
Demario Banks                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Demario Banks,                                           June 26, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1346
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David Kiely, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         82C01-9901-CF-19



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020                       Page 1 of 7
[1]   Demario Banks appeals from the denial of his motion for modification of

      sentence. We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Banks’s direct appeal from his conviction

      follow:


              Banks and James Morris decided to rob known drug dealer
              [Jakiya] McKnight. In the early morning hours of December 20,
              1998, they went to McKnight’s home and engaged him in a brief
              conversation. Suddenly producing a 9mm handgun, Banks told
              McKnight to lie on the floor and demanded to know where he
              kept his drugs and money. In the meantime, Morris proceeded
              to ransack the house finding a large quantity of cocaine and
              between five and eight thousand dollars in cash. While
              conducting his search, Morris heard a gun shot. Banks later told
              Morris that he had accidentally shot McKnight. The two
              removed jewelry from McKnight’s body and fled the scene with
              jewelry, money, and drugs. A later autopsy revealed McKnight
              died as a result of a gunshot wound to the chest.


      Banks v. State, 761 N.E.2d 403, 403-404 (Ind. 2002).


[3]   In 1999, a jury found Banks guilty of murder, a felony, robbery as a class A

      felony, and felony murder. On August 25, 1999, the trial court entered a

      judgment of conviction as to felony murder and sentenced Banks to sixty years.

      On direct appeal, the Indiana Supreme Court affirmed Banks’s conviction. Id.

      at 403.


[4]   On August 28, 2006, Banks filed an amended petition for post-conviction relief.

      On April 27, 2007, the court denied Banks’s petition. Banks appealed, and this
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020   Page 2 of 7
      Court affirmed. See Banks v. State, No. 82A05-0709-PC-520, slip op. at 2 (Ind.

      Ct. App. 2008).


[5]   On April 8, 2015, Banks filed a motion to modify his sentence. On April 16,

      2015, the State filed an Objection to Modification of Defendant’s Sentence.

      The chronological case summary (“CCS”) indicates the court held multiple

      “[s]hock hearing[s]” including one on May 23, 2019. Appellant’s Appendix

      Volume II at 17-18. That same day, the court denied Banks’s motion.


[6]   On June 13, 2019, Banks filed a notice of appeal. On August 7, 2019, Banks

      submitted a Verified Motion to Remand Seeking a Statement of Evidence

      and/or Alternative Relief. On August 15, 2019, this Court entered an order

      granting Banks’s motion, ordering Banks to file a statement of the evidence

      with the trial court pursuant to Appellate Rule 31(A) regarding the hearing held

      on May 23, 2019, and ordering the trial court to either certify the statement of

      evidence or file an affidavit pursuant to Appellate Rule 31(D). On October 18,

      2019, the trial court entered a “Response to Appellate Court’s Order Dated

      August 15, 2019 and Affidavit Pursuant to Rule 31D of the Indiana Rules of

      Appellate Procedure.” October 18, 2019 Order at 1. The court indicated that

      Banks filed a “Notice Seeking Certification ‘Statement of Evidence’ – or in the

      Alternative – Emergency Hearing to Create Records” on September 11, 2019,

      and made several assertions which he believed “occurred during discussions of

      his shock probation (modification) request.” Id. at 2. The court also indicated

      that it could not certify Banks’s statement of evidence as correct and that it was

      unable to recall the actual conversations of what occurred during the shock

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020   Page 3 of 7
      probation hearings referenced in the CCS or add additional information outside

      of what could be found in the CCS. On October 28, 2019, this Court entered an

      order accepting the trial court’s response.


                                                   Discussion

[7]   Before discussing Banks’s allegations of error, we observe that he is proceeding

      pro se and that such litigants are held to the same standard as trained counsel.

      Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Banks

      cites Layman v. State, 17 N.E.3d 957 (Ind. Ct. App. 2014), which was vacated

      by the Indiana Supreme Court, see Layman v. State, 42 N.E.3d 972 (Ind. 2015),

      and argues that he received a more severe sentence than a co-defendant and was

      denied due process. He argues that the trial court abused its discretion in

      denying his motion based upon the disparity between his sentence and that of

      his co-defendant who pled guilty. He argues the absence of a record

      demonstrates an abuse of discretion and a violation of due process. He also

      contends he was denied effective assistance of counsel when counsel failed to

      insist that hearings be on the record. The State argues in part that the trial court

      had no authority to modify Banks’s sentence under Ind. Code § 35-38-1-17

      absent the consent of the prosecutor. It also asserts that Banks fails to develop a

      cogent argument and that his arguments do not warrant reversal.


[8]   We review a trial court’s denial of a petition to modify a sentence only for

      abuse of discretion. Swallows v. State, 31 N.E.3d 544, 545-546 (Ind. Ct. App.

      2015) (citing Hobbs v. State, 26 N.E.3d 983, 985 (Ind. Ct. App. 2015) (citing

      Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010))), trans. denied. If the ruling
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020   Page 4 of 7
      rests on a question of law, however, we review the matter de novo. Id. (citing

      State v. Holloway, 980 N.E.2d 331, 334 (Ind. Ct. App. 2012)). Matters of

      statutory interpretation present pure questions of law. Id. (citing State v.

      Brunner, 947 N.E.2d 411, 416 (Ind. 2011) (citing Gardiner, 928 N.E.2d at 196),

      reh’g denied).


[9]   Ind. Code § 35-38-1-17 addresses the reduction or suspension of a sentence. At

      the time of Banks’s offense and conviction, Ind. Code § 35-38-1-17(b) provided:

      “If more than three hundred sixty-five (365) days have elapsed since the

      defendant began serving the sentence and after a hearing at which the convicted

      person is present, the court may reduce or suspend the sentence, subject to the

      approval of the prosecuting attorney.” (Emphasis added). At the time Banks filed

      his motion to modify his sentence on April 8, 2015, Ind. Code § 35-38-1-17(c)

      provided:


              If more than three hundred sixty-five (365) days have elapsed
              since the convicted person began serving the sentence, the court
              may reduce or suspend the sentence and impose a sentence that
              the court was authorized to impose at the time of sentencing. The
              court must incorporate its reasons in the record.


      Ind. Code Ann. § 35-38-1-17. However, this version of the statute does not

      apply to Banks. See Jaco v. State, 49 N.E.3d 171, 174 (Ind. Ct. App. 2015)

      (discussing Hobbs, 26 N.E.3d 983; Carr v. State, 33 N.E.3d 358, 358-359 (Ind.

      Ct. App. 2015) (citing the savings clause and Hobbs and concluding the version

      of Ind. Code § 35-38-1-17 which became effective July 1, 2014, did not apply

      where Carr’s crime was committed in 1999), trans. denied; Swallows, 31 N.E.3d
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020   Page 5 of 7
       at 545-547 (noting the plain meaning of the savings clause and the reasoning in

       Hobbs and concluding that the version of Ind. Code § 35-38-1-17 which became

       effective on July 1, 2014, did not apply to Swallows’s petition to modify a

       sentence that he began serving in 1989); and Johnson v. State, 36 N.E.3d 1130,

       1134-1138 (Ind. Ct. App. 2015) (concluding that the 2014 amendment to Ind.

       Code § 35-38-1-17(b) was not remedial, that the 2014 amendment constituted a

       substantive and not a procedural change, that thus the 2014 version of the

       statute did not apply to the Johnsons, and affirming the denial of the Johnsons’

       petitions for sentence modifications in that case), trans. denied, and concluding

       that the version of Ind. Code § 35-38-1-17 which became effective July 1, 2014,

       did not apply to Jaco’s February 17, 2015 motion for modification of sentence).


[10]   Public Law No. 164-2015 amended Ind. Code § 35-38-1-17 “to explicitly

       provide the sentencing relief available therein applied retroactively to ‘a person

       who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.’” Schmitt

       v. State, 108 N.E.3d 423, 425 (Ind. Ct. App. 2018) (quoting Ind. Code § 35-38-1-

       17(a) (2015)). See also Vazquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015)

       (discussing the statutory change and holding that the legislature has since

       amended the statute to expressly provide for retroactivity). The current version

       of the statute, which was in effect at the time of the court’s May 23, 2019,

       denial of Banks’s motion, also provides that, except as provided in subsections




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020   Page 6 of 7
       (k) and (m), 1 Ind. Code § 35-38-1-17 does not apply to a “violent criminal,” and

       a violent criminal is defined to include a person convicted of murder, which

       includes felony murder. Ind. Code § 35-38-1-17(c), -17(d)(1). Ind. Code § 35-

       38-1-17(k) provides that, “[a]fter the elapse of the three hundred sixty-five (365)

       day period, a violent criminal may not file a petition for sentence modification

       without the consent of the prosecuting attorney.”


[11]   Banks concedes that the State objected to his motion to modify his sentence and

       does not cite Ind. Code § 35-38-1-17 or respond to the State’s argument that the

       trial court had no authority to modify his sentence absent the consent of the

       prosecutor. Under the circumstances, we cannot say that Banks demonstrated

       that the trial court abused its discretion in denying his motion or that the lack of

       a transcript or his claim of ineffective assistance warrants reversal.


[12]   For the foregoing reasons, we affirm the trial court’s denial of Banks’s motion

       for modification of sentence.


[13]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       1
        Subsection (m) applies to a person who commits an offense after June 30, 2014, and before May
       15, 2015, and is inapplicable here.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1346 | June 26, 2020        Page 7 of 7
