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.
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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.
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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.
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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
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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.
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Marlon M. Banks v. State of Indiana (mem. dec.)
Combined Opinion