MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                              Jan 18 2018, 10:18 am
the defense of res judicata, collateral                                         CLERK
estoppel, or the law of the case.                                           Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Marlon M. Banks                                          Curtis T. Hill, Jr.
Albion, Indiana                                          Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marlon M. Banks,                                         January 18, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A05-1612-CR-2872
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Respondent.                                     Bowers, Judge
                                                         Trial Court Cause No.
                                                         20D02-0504-FC-68



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1612-CR-2872 | January 18, 2018             Page 1 of 5
                                          Case Summary
[1]   In 2006, Appellant-Petitioner Marlon M. Banks was convicted of twelve counts

      of Class C felony forgery. He was subsequently sentenced to an aggregate term

      of forty-four years, with thirty years executed in the Department of Correction

      and fourteen years suspended to probation. We affirmed Banks’s sentence on

      direct appeal in 2007, and, in 2015, affirmed the denial of Banks’s petition for

      post-conviction relief (“PCR”).


[2]   Since July of 2014, Banks has filed five sentence-modification petitions. The

      last of these petitions was filed on November 7, 2016. Banks appeals from the

      denial of this last petition, arguing that the trial court abused its discretion in

      denying the petition. Because we disagree, we affirm.



                            Facts and Procedural History
[3]   Our decisions in Banks’s prior direct appeal, which was handed down on May

      17, 2007, and appeal from the denial of his PCR petition, which was handed

      down on April 28, 2015, instruct us to the underlying facts and procedural

      history leading to this appeal.


              Between March 12, 2002, and October 23, 2003, Banks used his
              computer to print fake payroll checks using various actual and
              phony company names. Banks made the fake checks out to
              different individuals whom he had recruited and who received a
              monetary payment and sometimes drugs in return for cashing the
              fake checks. The individuals had no knowledge of each other,
              and on only a few occasions were the checks cashed at the same
              institution.
      Court of Appeals of Indiana | Memorandum Decision 20A05-1612-CR-2872 | January 18, 2018   Page 2 of 5
              On April 1, 2005, [Appellee-Respondent the State of Indiana
              (“the State”)] charged Banks with twelve counts of class C felony
              forgery.… On March 2, 2006, a jury found Banks guilty as
              charged. On April 17, 2006, a sentencing hearing was held.…
              The trial court found no mitigating factors and one aggravating
              factor, Banks’[s] criminal history.


      Banks v. State, 20A03-0609-CR-442 *1 (Ind. Ct. App. May 17, 2007) (bracketed

      material added). The trial court sentenced Banks to “an aggregate sentence of

      forty-four years; thirty years executed with fourteen years suspended to

      probation.” Id. at *2. We subsequently affirmed Banks’s sentence on direct

      appeal. Id. at * 3.


[4]           On December 15, 2010, Banks filed a pro-se [PCR petition.] The
              post-conviction court conducted hearings on July 28, 2011,
              August 29, 2012, and September 11, 2012. On January 30, 2014,
              the post-conviction court entered its findings of fact, conclusions,
              and order denying Banks [PCR]. Banks filed a motion to correct
              error, which was denied.


      Banks v. State, 20A04-1403-PC-102 * 1 (Ind. Ct. App. April 28, 2015) (bracketed

      material added). On April 28, 2015, we affirmed the denial of Banks’s PCR

      petition. Id. at *6.


[5]   Banks filed subsequent sentence-modification petitions on July 11, 2014, May

      4, 2015, November 30, 2015, April 25, 2016, and November 7, 2016. The trial

      court denied each of these petitions. This appeal follows the trial court’s denial

      of the November 7, 2016 petition.



      Court of Appeals of Indiana | Memorandum Decision 20A05-1612-CR-2872 | January 18, 2018   Page 3 of 5
                                 Discussion and Decision
[6]   Banks contends the trial court erred in denying his November 7, 2016 sentence-

      modification petition. We will reverse a trial court’s decision regarding whether

      to grant a request to modify of one’s sentence “only upon a showing of abuse of

      discretion.” Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999). “An

      abuse of discretion occurs if the court’s decision is clearly against the logic and

      effect of the facts and circumstances before the court.” Id.


[7]   The relevant portion of Indiana Code section 35-38-1-17 provides as follows:


              (j) This subsection applies only to a convicted person who is not
              a violent criminal. A convicted person who is not a violent
              criminal may file a petition for sentence modification under this
              section:
                     (1) not more than one (1) time in any three hundred
                     sixty-five (365) day period; and
                     (2) a maximum of two (2) times during any
                     consecutive period of incarceration;
              without the consent of the prosecuting attorney.


      Furthermore, this statute expressly applies “to a person who: (1) commits an

      offense; or (2) is sentence; before July 1, 2014.” Ind. Code § 35-38-1-17(a).


[8]   It is undisputed that for the purposes of this case, Banks is not a violent

      criminal. The record in this case reveals that since July of 2015, Banks has filed

      five sentence-modification petitions. The first two petitions were filed within

      one 365-day period. The second, third, and fourth petitions were also filed

      within one 365-day period, as were the third, fourth, and fifth petitions. In


      Court of Appeals of Indiana | Memorandum Decision 20A05-1612-CR-2872 | January 18, 2018   Page 4 of 5
       addition, all five have been filed within one consecutive period of incarceration.

       The record further reveals that the prosecuting attorney did not consent to any

       of Banks’s petitions.


[9]    Given the Indiana General Assembly’s clear intent as to retroactive application

       of Indiana Code section 35-38-1-17, we see no reason why the limits for

       permissible requests to modify one’s sentence set forth therein would not apply

       to Banks. The November 7, 2016 petition clearly exceeded the statutorily

       proscribed limits. For this reason, we conclude that the trial court did not abuse

       its discretion in denying Banks’s November 7, 2016 petition. Vazquez v. State,

       37 N.E.3d 962, 964 (Ind. Ct. App. 2015) (providing that the trial court properly

       dismissed Vazquez’s petition for a modification of his sentence because

       Vazquez exceeded the authorized number of filings). This conclusion is further

       supported by the fact that Banks did not obtain the required consent for filing

       the numerous petitions from the prosecuting attorney.


[10]   The judgment of the trial court is affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1612-CR-2872 | January 18, 2018   Page 5 of 5
