Willard G. Merkel v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 14, 2020
• Docket: 20A-CR-1475
• Status: Published

Opinion

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas Little Curtis T. Hill, Jr. Frankfort, Indiana Attorney General of Indiana FILED Josiah J. Swinney Dec 14 2020, 8:25 am Deputy Attorney General CLERK Indianapolis, Indiana Indiana Supreme Court Court of Appeals and Tax Court

IN THE COURT OF APPEALS OF INDIANA

Willard G. Merkel, December 14, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1475 v. Appeal from the Carroll Circuit Court State of Indiana, The Honorable Benjamin A. Appellee-Plaintiff. Diener, Judge Trial Court Cause No. 08C01-1805-F4-9

Riley, Judge.

Court of Appeals of Indiana | Opinion 20A-CR-1475 | December 14, 2020 Page 1 of 5 STATEMENT OF THE CASE [1] Appellant-Defendant, Willard G. Merkel (Merkel), appeals the trial court’s

denial of his petition to modify his sentence.

[2] We affirm.

ISSUE [3] Merkel presents this court with one issue on appeal, which we restate as:

Whether the trial court properly denied Merkel’s request for a modification of

his sentence stemming from his conviction for unlawful possession of a firearm

by a serious violent felon.

FACTS AND PROCEDURAL HISTORY [4] On May 21, 2018, the State filed an Information, charging Merkel with

unlawful possession of a firearm by a serious violent felon as a Level 4 felony

and a notice of intent to seek an habitual offender enhancement. On March 29,

2019, Merkel agreed to plead guilty to unlawful possession of a firearm by a

serious violent felon in exchange for the State’s agreement to dismiss the

habitual offender enhancement. Pursuant to the agreement, sentencing would

be left to the trial court’s discretion. On June 29, 2019, during the sentencing

hearing, the trial court imposed a twelve-year sentence to be executed at the

department of correction, and it noted Merkel’s history of criminal behavior as

he was serving a sentence “for the same offense at the time this offense

occurred.” (Appellant’s App. Vol. II, p. 22). An entry on the Chronological

Court of Appeals of Indiana | Opinion 20A-CR-1475 | December 14, 2020 Page 2 of 5 Case Summary (CCS) on July 2, 2019, indicated that the trial court had issued

its signed sentencing order on June 26, 2019.

[5] On June 26, 2020, 366 days after sentencing, Merkel filed his Verified

Emergency Petition for Release from Custody based on the COVID-19

Pandemic and Motion to Modify Sentence. Without being requested to by the

trial court or Merkel, the State filed its objection three days later. On July 22,

2020, the trial court denied Merkel’s petition without conducting a hearing.

[6] Merkel now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION [7] Merkel contends that the trial court abused its discretion in denying his petition

for a modification of his sentence. A trial court’s decision regarding a petition

for a modification of a sentence is reviewed for an abuse of discretion. Gardiner

v. State, 928 N.E.2d 194, 196 (Ind. 2010). An abuse of discretion occurs where

the decision is clearly against the logic and effect of the facts and circumstances.

Id. Trial courts have broad discretion to modify a sentence. Schmitt v. State, 108

N.E.3d 423, 428 (Ind. Ct. App. 2018).

[8] It should be noted that Merkel could not request a sentence modification under

Indiana Code section 35-38-1-17(k) because the trial court’s statutory authority

to consider a modification without the consent of the prosecutor ended “no[]

later than three hundred sixty-five (365) days from the date of sentencing” for

Merkel’s offense that qualified him as a “violent criminal.” Ind. Code § 35-38-

1-17(d)(14) (2018). 366 days passed between the imposition of the trial court’s Court of Appeals of Indiana | Opinion 20A-CR-1475 | December 14, 2020 Page 3 of 5 sentence and Merkel’s request for a sentence modification which he filed

without the consent of the prosecutor. Accordingly, as Merkel could not

request a modification of his sentence without the consent of the State, the trial

court was without authority to consider his petition.

[9] Even if the trial court had authority to consider Merkel’s petition, we conclude

that it did not abuse its discretion by denying Merkel’s request for sentence

modification. Merkel committed an offense which qualified him as a violent

criminal for the purposes of the modification statute. See I.C. § 35-38-1-

17(d)(14). On the day he filed his petition for modification, he had served 366

days of a twelve-year sentence. Although Merkel did not submit any facts

related to the offense or a transcript, the CCS reflects that Merkel was “serving

a sentence for the same offense at the time this offense occurred.” (Appellant’s

App. p. 22). The danger to the community evidenced by a serious violent felon

possessing a firearm and the relatively brief period of incarceration support the

trial court’s refusal to modify his sentence.

[10] Merkel also argues that the trial court abused its discretion because by being an

older diabetic he is at a higher risk of contracting COVID-19. However, his

placement in a higher-risk category will remain even if he were released into the

community. Furthermore, his reliance on our supreme court’s In re the Matter of

Administrative Rule 17 Emergency Relief in the Indiana Trial Courts Related to the

2019 Novel Coronavirus (COVID-19), 141 N.E.3d 1243 (Mem) (Ind. Apr. 3, 2020)

is misplaced. Although the supreme court granted authority to trial courts “to

review county-jail and direct placement community correction sentences of

Court of Appeals of Indiana | Opinion 20A-CR-1475 | December 14, 2020 Page 4 of 5 non-violent inmates,” this decision did not override substantive Indiana law on

sentence modifications and cannot be interpreted as a requirement to release

inmates, as Merkel appears to propose. Id. at 1244. Moreover, the decision is

not applicable to Merkel because he was not placed in a county jail, he is not a

juvenile, and he was convicted of a violent offense.

[11] Prior to making its decision, the trial court was not required to conduct a

hearing on Merkel’s petition. The statute does not require a trial court to hold a

hearing in all cases; it only requires the trial court to conduct a hearing if the

court has made a preliminary decision that it is going to modify the sentence.

Robinett v. State, 798 N.E.2d 537, 539 (Ind. Ct. App. 2003), trans. denied.

Because the trial court did not indicate it had made a preliminary determination

to reduce or modify Merkel’s sentence, it was not required to conduct a hearing.

As such, the trial court’s conclusion that modification was not warranted was

well-within its discretion and shall not be disturbed on appeal.

CONCLUSION [12] Based on the foregoing, we conclude that the trial court did not abuse its

discretion by denying Merkel’s petition for sentence modification.

[13] Affirmed.

[14] Najam, J. and Crone, J. concur

Court of Appeals of Indiana | Opinion 20A-CR-1475 | December 14, 2020 Page 5 of 5