Violent offender’s appeal seeking COVID-19 release ‘misplaced’

Despite a convicted man’s claim of compromised health that raised his risk of contracting the novel coronavirus behind bars, the Indiana Court of Appeals determined Monday he wasn’t the sort of offender the Indiana Supreme Court had in mind when it urged courts earlier this year to consider release of detainees who posed little risk.

In Willard G. Merkel v. State of Indiana, 20A-CR-1475, an appellate panel affirmed the Carroll Circuit Court’s denial of Willard Merkel’s motion to modify his 12-year sentence. Merkel had received that term after he pleaded guilty to Level 4 felony possession of a firearm by a serious violent felon. In exchange, the state dropped the habitual offender enhancement that had been filed against him, leaving sentencing to the judge’s discretion.

A bit more than a year into his sentence, Merkel asked for a modification in the form of a verified emergency petition for release from custody based on the COVID-19 pandemic, and a motion to modify sentence. In rejecting Merkel’s arguments on appeal, the COA noted that the trial court lacked authority to consider his petition without the prosecutor’s consent and that Merkel had previously served a sentence for conviction of the same offense.

“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,” Judge Patricia Riley wrote for the panel.

“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,” Riley wrote. “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 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.

“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,” Riley continued.

Further, because the court had not entertained modifying Merkel’s sentence, it was not required to hold 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,” the appellate panel concluded.