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Date: 05-15-2021
Case Style:
Pedro Toribio Marcelino v. State of Indiana
Case Number: 20A-CR-02050
Judge: Robert R. Altice, Jr.
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented Pedro T. Marcelino with a voluntary
manslaughter charge
In February 2005, the State charged Marcelino with murder. Marcelino, an
undocumented immigrant from Mexico, was represented by a court-appointed
counsel, and an interpreter also appeared on Marcelino’s behalf. Pursuant to a
plea agreement, on April 17, 2006, Marcelino pleaded guilty to a reduced
charge of Class A felony voluntary manslaughter. Later that month, the trial
court held a sentencing hearing and imposed an executed sentence of forty
years in the DOC.
[4] After filing a number of other pro-se motions with the trial court between 2016
and 2020, Marcelino filed the instant motion for modification of sentence on
September 14, 2020. In the motion, Marcelino indicated that he had sought
permission for modification from the Johnson County Prosecutor but had yet to
receive a response. His stated goal was to be released from prison so that he
could be deported back to Mexico “now as opposed to in 2025, which is what Court of Appeals of Indiana | Memorandum Decision 20A-CR-2050 | May 14, 2021 Page 3 of 6
the end result will be anyways.” Appellant’s Appendix Vol. 2 at 9 (emphasis in
original). The same day that Marcelino filed his motion, Daylon L. Welliver,
Chief Deputy of the Johnson County Prosecutor’s Office, notified him by letter
as follows: “I have reviewed your case file and am informing you that we would
not consent to modify your sentence, based on the serious nature of your
crime.” Id. at 3. Three days later, on September 17, the trial court denied
Marcelino’s motion for modification of his sentence. Marcelino now appeals.
Discussion & Decision
[5] The law is clear in this case. Marcelino’s 2006 conviction for voluntary
manslaughter rendered him, for modification purposes, a violent criminal. See
Ind. Code § 35-38-1-17(d)(3). As such, Marcelino could seek modification of
his sentence only under I.C. § 35-38-1-17(k), which provides:
A convicted person who is a violent criminal may, not later than
three hundred sixty-five (365) days from the date of sentencing,
file one (1) petition for sentence modification under this section
without the consent of the prosecuting attorney. After 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.
(Emphasis supplied).
[6] Here, Marcelino filed his motion for modification more than fourteen years
after being sentenced, and he did so without the consent of the prosecuting
attorney. Under these circumstances, the petition was improperly filed, and the Court of Appeals of Indiana | Memorandum Decision 20A-CR-2050 | May 14, 2021 Page 4 of 6
trial court had no authority to modify the sentence. See Merkel v. State, 160
N.E.3d 1139, 1141 (Ind. Ct. App. 2020) (“[A]s 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.”); see also State v. Fulkrod, 753 N.E.2d
630, 633 (Ind. 2001) (reversing modification where time limit had expired and
prosecutor refused to give approval and, thus, trial court lacked authority to
modify sentence).
[7] Marcelino ignores the reality of the trial court’s lack of authority and presents,
without cogent reasoning, a number of constitutional arguments. Initially, he
contends that he was “unduly denied the opportunity to have a full and fair
opportunity to make proper presentment for modification under Ind. Code § 35-
38-1-17.” Appellant’s Brief at 11. It appears he is arguing that the trial court
should have held a hearing on his motion. We have held, however, that it is
not unconstitutional for a trial court to deny a motion for sentence modification
without holding a hearing. See Manley v. State, 868 N.E.2d 1175, 1178 (Ind. Ct.
App. 2007) (declining defendant’s “invitation to create a [constitutional]
requirement that a hearing must be held before a trial court can rule upon a
request for sentence modification … where a prosecutor has refused to approve
the request”), trans. denied. Indeed, a hearing would have been futile here given
the trial court’s complete lack of authority to grant the motion without the
prosecutor’s consent, “a procedural condition precedent to the court’s exercise
of authority.” Woodford v. State, 58 N.E.3d 282, 283 n.4 (Ind. Ct. App. 2016).Court of Appeals of Indiana | Memorandum Decision 20A-CR-2050 | May 14, 2021 Page 5 of 6
[8] Additionally, Marcelino asserts that his “language issues have caused a
significant violation re: access to the court(s), due process of law and the
provision for equal protection under the laws” as guaranteed under both the
Indiana and United States Constitutions. Appellant’s Brief at 17. Marcelino’s
arguments in this regard are undeveloped and unintelligible, and it is not at all
clear to us how any language barriers affected his attempt to obtain a
modification of his sentence. Further, we observe that I.C. § 35-38-1-17 “has
withstood several constitutional challenges” including claims based on the
separation of powers doctrine, due process, equal protection, and equal access
to the courts. Manley, 868 N.E.2d at 1177; see also Beanblossom v. State, 637
N.E.2d 1345, 1348 (Ind. Ct. App. 1994) (“Beanblossom has no recognized
liberty interest in a modification of his sentence under Indiana law, and the due
process clause of the fourteenth amendment does not require that the decision
to modify be free from Indiana’s condition that it be subject to the approval of
the prosecuting attorney.”), trans. denied.
[9] We reiterate, the trial court had no authority in this case to grant the motion for
sentence modification given the lack of consent from the prosecutor.1
Accordingly, the trial court did not err by summarily denying the motion
without a hearing
Outcome: Judgment affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: