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
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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