                                                                                        FILED
                                                                                    Dec 27 2018, 8:56 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Curtis T. Hill, Jr.                                       Jason J. Pattison
      Attorney General of Indiana                               Madison, Indiana

      Ellen H. Meilaender
      Supervising Deputy Attorney General
      Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                         December 27, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                39A04-1705-CR-930
              v.                                                Appeal from the Jefferson Circuit
                                                                Court
      Pebble Stafford,                                          The Honorable Darrell M. Auxier,
      Appellee-Plaintiff                                        Judge
                                                                The Honorable W. Gregory Coy,
                                                                Special Judge
                                                                Trial Court Cause No.
                                                                39C01-1307-FB-696



      Altice, Judge.


                                                Case Summary


[1]   On June 10, 2014, Pebble Stafford pled guilty to three offenses each under a

      separate cause number, and her plea agreement provided that she would receive
      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018                     Page 1 of 17
      consecutive sentences of six years executed, thirty days in jail, and four years

      executed with direct placement in community corrections. The trial court

      accepted the plea agreement and sentenced Stafford accordingly. In 2017,

      Stafford petitioned the trial court for a sentence modification. Over the State’s

      objection, the trial court granted Stafford’s motion. The State appealed.


[2]   We issued an opinion in this case in October 2017 and determined that in light

      of the legislature’s 2014 amendment to Ind. Code § 35-38-1-17, Stafford did not

      waive her right to sentence modification by entering into a fixed plea

      agreement, and thus, the trial court was authorized to modify her sentence

      without the approval of the prosecutor. We therefore affirmed the trial court’s

      modification of Stafford’s sentence, but asked the legislature for clarification.


[3]   Likely in response to our request, the legislature amended I.C. § 35-38-1-17

      effective on July 1, 2018. Our Supreme Court granted transfer, vacated our

      original opinion in this case, and remanded to us with instructions to reconsider

      in light of this amendment. For the reasons set forth below, we now conclude

      that the trial court was not authorized to amend Stafford’s sentence as it was

      pursuant to a fixed plea agreement.


[4]   Judgment reversed and remanded with instructions.


                                        Facts & Procedural History


[5]   On July 18, 2013, the State charged Stafford with Class B felony dealing in a

      controlled substance. At that time, Stafford also faced two unrelated charges


      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018   Page 2 of 17
      under two separate cause numbers. On June 10, 2014, Stafford entered into a

      plea agreement with the State resolving all three cases. Stafford agreed to plead

      guilty to Class B felony dealing in a controlled substance, Class B misdemeanor

      possession of a substance to interfere with a screening test, and Class C felony

      battery. The plea agreement provided that Stafford would receive consecutive

      sentences of six years in the Department of Correction (DOC) with none

      suspended for the Class B felony; thirty days in the Jefferson County Jail for the

      Class B misdemeanor; and four years in the DOC with direct placement in

      community corrections for the Class C felony battery. The plea agreement

      contained no provision for sentence modification. The trial court accepted the

      plea agreement and sentenced Stafford in accordance therewith.


[6]   Effective July 1, 2014, weeks after Stafford pled guilty, the legislature amended

      I.C. § 35-38-1-17 in an effort to relax the rules regarding sentence modification.

      On January 30, 2017, Stafford filed a petition to modify her sentence. The

      State objected, citing Ind. Code § 35-35-3-3(e), which dictates that a trial court

      is bound by the terms of the plea agreement. Following a hearing, the trial

      court granted Stafford’s petition on April 12, 2017. In relevant part, the trial

      court found as follows:


              2.       The plea agreement was silent as to the right of [Stafford]
                       to seek a modification; nor did it preclude her from doing
                       so.


              3.       [Stafford] has completed a therapeutic community
                       [program] for which she was given credit toward her
                       sentence.

      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018    Page 3 of 17
        4.       After completion of the CLIFF program [Stafford] served
                 as a mentor in the program.


        5.       [Stafford] also obtained a GED, completed a course in
                 Problem Solving, and took courses in building trades.


        6.       [Stafford’s] plan upon release is to go to the Ruth Haven
                 halfway house, obtain a full time job, remain clean, and
                 continue her education at IVY Tech as a part time student.


                                                ***


        10.      This court finds that there is no purpose in requiring
                 [Stafford] to remain in the DOC until her current release
                 date of August, 2019; she has completed multiple
                 programs while at DOC and no further programs or
                 treatment are available there which will avail [Stafford] of
                 any further opportunity to improve herself or her situation
                 at DOC and has been rehabilitated to the extent the DOC
                 is able to do so.


        11.      [Stafford] can seek to become employed and educated if
                 released from imprisonment.


        12.      The Court finds that the remainder of [Stafford]’s sentence
                 should be suspended to probation with monitoring by the
                 community corrections department.


Appellant’s Appendix Vol. 2 at 118-19. The trial court ordered that Stafford be on

supervised probation for three years, but that after successful completion of one

year of probation, she could petition for unsupervised probation. The State

appeals.

Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018   Page 4 of 17
                                           Discussion & Decision


[7]   In our original decision, we considered the legislature’s 2014 amendment to

      I.C. § 35-38-1-17, in which the following language was added:


              A person may not waive the right to sentence modification under
              this section as part of a plea agreement. Any purported waiver of
              the right to sentence modification under this section in a plea
              agreement is invalid and unenforceable as against public policy.
              This subsection does not prohibit the finding of a waiver of the
              right to sentence modification for any other reason, including
              failure to comply with the provisions of this section.


      I.C. § 35-38-1-17(l).1 We determined that with the addition of this language, the

      legislature “plainly stated that a person may not waive the right to sentence

      modification as part of a plea agreement—any plea agreement [including fixed

      plea agreements].” State v. Stafford, 86 N.E.2d 190, 193 (Ind. Ct. App. 2017),

      trans. granted. Thus, although Stafford entered into a fixed plea agreement, she

      did not thereby waive her right to seek modification of her sentence. We

      therefore held that notwithstanding Stafford’s fixed plea agreement, the trial

      court was authorized to modify her sentence without the prosecutor’s approval.

      Id.


[8]   In a later dissent regarding the same issue in Rodriguez v. State, 91 N.E.3d 1033,

      1038 (Ind. Ct. App. 2018), trans. granted, Senior Judge Rucker focused on the




      1
        When originally added, this language was found in subsection (i). Through a subsequent amendment, the
      language was moved to subsection (l).

      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018                  Page 5 of 17
      last sentence of the 2014 amendment: “This subsection does not prohibit the

      finding of a waiver of the right to sentence modification for any other

      reason . . . .” I.C. § 35-38-1-17(l). In light of this language, Senior Judge

      Rucker reached a contrary interpretation of the statute:


              [T]he trial court lacked the authority to modify [a sentence] not
              because of a “waive[r] to the right of sentence modification … as
              part of a plea agreement.” [See I.C. § 35-38-1-17(l).] Instead, the
              trial court lacked such authority for a wholly different reason – or
              in the language of the statute “for any other reason”—namely:
              because of the bargain . . . struck with the State of Indiana.


      91 N.E.3d at 1040. In other words, the “other reason” the trial court lacked

      authority to modify the sentence was because, pursuant to I.C. § 35-35-3-3(e),

      the trial court remained bound by the terms of the plea agreement.


[9]   “[I]f a statute admits of more than one interpretation, then it is ambiguous; and

      we thus resort to rules of statutory interpretation so as to give effect to the

      legislature’s intent.” Suggs v. State, 51 N.E.3d 1190, 1194 (Ind. 2016). Upon

      further reflection, we conclude that the 2014 amendment rendered I.C. § 35-38-

      1-17 ambiguous, in that the statute was reasonably susceptible to (1) the

      interpretation Senior Judge Rucker articulated in his Rodriguez dissent, i.e., that

      waiver of modification is permissible when the defendant has negotiated a fixed

      plea agreement; and (2) the interpretation we articulated in our original

      decision—an interpretation also reached by the majority in Rodriguez—i.e., that

      a defendant cannot waive the right to modification under these circumstances.



      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018   Page 6 of 17
[10]   Notably, in our original decision, we called upon the legislature to clarify its

       intent. In direct response to our call for clarification, the legislature, at its first

       opportunity in the next legislative session, amended I.C. § 35-38-1-17. The

       legislature added language to both subsection (e) and subsection (l), which is

       emphasized in italics below:


               (e) At any time after:


                        (1) a convicted person begins serving the person’s
                        sentence; and


                        (2) the court obtains a report from the department of
                        correction concerning the convicted person’s conduct
                        while imprisoned;


               the court may reduce or suspend the sentence and impose a
               sentence that the court was authorized to impose at the time of
               sentencing. However, if the convicted person was sentenced under the
               terms of a plea agreement, the court may not, without the consent of the
               prosecuting attorney, reduce or suspend the sentence and impose a
               sentence not authorized by the plea agreement. The court must
               incorporate its reasons in the record.


                                                       ***


               (l) A person may not waive the right to sentence modification
               under this section as part of a plea agreement. Any purported
               waiver of the right to sentence modification under this section in
               a plea agreement is invalid and unenforceable as against public
               policy. This subsection does not prohibit the finding of a waiver
               of the right to:


       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018        Page 7 of 17
                        (1) have a court modify a sentence and impose a sentence not
                        authorized by the plea agreement, as described under subsection
                        (e); or


                        (2) sentence modification for any other reason, including
                        failure to comply with the provisions of this section.


       I.C. § 35-38-1-17(e), (l) (emphasis supplied).


[11]   Through its amendment, the legislature made a definitive statement that trial

       courts are not authorized to modify sentences that were imposed by virtue of a

       plea agreement unless the agreement itself contemplated such a modification

       and/or the prosecuting attorney agrees to the modification. In other words, it is

       now clear that the sentencing parameters of a plea agreement continue to bind a

       trial court during subsequent modification proceedings. See I.C. § 35-35-3-3(e).


[12]   Just as inaction by the legislature can be viewed as acquiescence in a judicial

       interpretation of a statute, “the opposite is also true, i.e., that action by the

       legislature to amend a law can help clarify the legislature’s original intent in

       adopting the law.” In re J.S., 48 N.E.3d 356, 366 (Ind. Ct. App. 2015). When

       the legislature disagrees with judicial rulings, it can act swiftly to assert that a

       court’s interpretation of its statute is incorrect. Durham ex rel. Estate of Wade v.

       U-Haul Intern., 745 N.E.2d 755, 761 (Ind. 2001). “Where it appears that the

       Legislature amends a statute to express its original intention more clearly, the

       normal presumption that an amendment changes a statute’s meaning does not

       apply.” Ind. Dep’t of Revenue v. Kitchin Hospitality, LLC, 907 N.E.2d 997, 1002

       (Ind. 2009); see also Olatunji v. State, 788 N.E.2d 1268, 1272 (Ind. Ct. App. 2003)

       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018        Page 8 of 17
       (noting that “an amendment to a statute raises the presumption that the

       legislature intended to change the law, unless it clearly appears that the

       amendment was passed in order to express the original intent more clearly”).


[13]   Here, the legislature acted swiftly following the decisions in Stafford and

       Rodriguez. We can glean from this that the legislature was simply making clear

       its original intent, and thus, the 2018 amendment to I.C. § 35-38-1-17(e) and (l)

       did not change the original meaning of the statute. We therefore conclude that

       the legislature never intended to create a right to modification of fixed sentences

       imposed under a plea agreement. Thus, we conclude that the trial court did not

       have authority to modify Stafford’s sentence without the prosecutor’s approval. 2


[14]   In light of the foregoing, we reverse the trial court and remand with instructions

       to reinstate Stafford’s sentence as provided in the plea agreement. In doing so,

       we observe that I.C. § 35-38-1-17(l) still reflects the overriding public policy

       against waiver-of-modification provisions. Nonetheless, the statutory

       framework limits the range of possible modification to that “authorized by the

       plea agreement.” I.C. § 35-38-1-17(e), -17(l)(1). In this case, Stafford entered

       into—and the trial court accepted—a plea agreement with just one authorized




       2
         In revisiting Rodriguez, the majority there adheres to its original interpretation of the 2014 amendment, and
       proceeds to address the interplay between the plea agreement, the 2018 amendment, and the Contract Clause
       of the United States Constitution. Rodriguez v. State, No. 20A03-1704-CR-724, slip op. at 13-17 (Ind. Ct.
       App. Dec. 14, 2018). The Court ultimately concludes that retroactive application of the 2018 amendment
       would be unconstitutional as applied and also fundamentally unfair. Id. at 17. We note in passing, however,
       that Stafford—unlike the defendant in Rodriguez—entered her plea agreement before the effective date of the
       2014 amendment. Thus, even if we shared the interpretation and approach espoused in Rodriguez, we would
       discern no such constitutional infirmity or fundamental unfairness in the instant case.

       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018                        Page 9 of 17
       sentence, thereby leaving no room for modification. Notably, however, Indiana

       trial courts retain broad discretion to accept or reject plea agreements. See I.C. §

       35-35-3-3; Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994); Meadows v.

       State, 428 N.E.2d 1232, 1235 (Ind. 1981). Thus, if ever desired, a trial court

       may avoid the instant issue by rejecting a “fixed sentence” plea agreement that

       fails to authorize sentence modification in the case of changed circumstances.


[15]   Judgment reversed and remanded with instructions.


       Bailey, J., concurs.


       Baker, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018   Page 10 of 17
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana,                                         Court of Appeals Case No.
                                                                 39A04-1705-CR-930
       Appellant-Respondent,

               v.

       Pebble Stafford,
       Appellee-Petitioner




       Baker, Judge, dissenting.



[16]   I respectfully dissent. In the legislative session that convened following our

       original decision in Stafford, our General Assembly reconsidered and amended

       the language included in the 2014 amendment of Indiana Code section 35-38-1-

       17. In my view, the General Assembly realized that this Court’s interpretation

       of the statute was both right and reasonable. For that reason, the legislature

       followed our suggestion to clarify the statute.




       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018           Page 11 of 17
                                             Pre-2018 Amendment

[17]   I continue to believe that our original decision was both right and reasonable,

       based on the language of the statute at that time. A plea agreement is

       contractual in nature, binding upon the defendant, the State, and the trial court.

       St. Clair v. State, 901 N.E.2d 490, 492 (Ind. 2009). Once a trial court accepts a

       plea agreement, it is bound by the terms of that agreement. Ind. Code § 35-35-

       3-3(e).


[18]   For many years, it was well established that a trial court had no authority to

       later modify a fixed plea sentence unless the plea agreement reserved to the

       court the right to engage in such a modification. E.g., Pannarale v. State, 638

       N.E.2d 1247, 1248 (Ind. 1994). In 2014, however, the General Assembly

       amended the statute regarding sentence modification, adding the following new

       provision:


                 A person may not waive the right to sentence modification under
                 this section as part of a plea agreement. Any purported waiver of
                 the right to sentence modification under this section in a plea
                 agreement is invalid and unenforceable as against public policy.
                 This subsection does not prohibit the finding of a waiver of the
                 right to sentence modification for any other reason, including
                 failure to comply with the provisions of this section.




       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018   Page 12 of 17
       Ind. Code 35-38-1-17(l).3 This statute has explicit retroactive application to

       offenders who were convicted and sentenced before July 2014. I.C. § 35-38-1-

       17(a). The General Assembly also loosened other rules regarding sentence

       modification with these amendments, including the elimination of all time

       periods related to when a non-violent offender could seek a sentence

       modification and the express authorization of sentence modification without

       the consent of the prosecutor. I.C. § 35-38-1-17.


[19]   It is apparent that, by relaxing the rules regarding sentence modification, our

       General Assembly was guided by Article I, Section 18, of the Indiana

       Constitution, which provides that “[t]he penal code shall be founded on the

       principles of reformation, and not of vindictive justice.” In keeping with this

       philosophy is the legislature’s recognition of the public policy against a

       purported waiver in a plea agreement of a defendant’s ability to seek sentence

       modification.


[20]   The State focuses on the following section of the statute:


                (e)      At any time after:

                         (1)       a convicted person begins serving the person’s
                                   sentence; and




       3
        When first enacted, this section was codified as subsection -17(i); it was later codified as subsection -17(l)
       but is otherwise identical to the earliest version.

       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018                         Page 13 of 17
                 (2)     the court obtains a report from the department of
                         correction concerning the convicted person’s
                         conduct while imprisoned;

                 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.


I.C. § 35-38-1-17(e) (emphasis added). According to the State, this provision

means that a trial court may not modify a sentence following a fixed sentence

plea agreement if the right to modify was not included in the agreement:


        [I]n a case involving a fixed-sentence plea, the only sentence that
        the court “was authorized to impose at the time of sentencing” is
        the precise sentence provided for in the plea agreement. Thus, by
        the plain language of the modification statute, a court does not
        have any authority to modify where it had no discretion at the
        time of the original imposition of sentence. . . . If a trial court
        had no authority to impose a particular sentencing term when it
        originally imposed sentence, then it has no authority to impose
        that term through a subsequent modification.


Original Appellant’s Br. p. 12 (internal citations omitted). And the State further

argues that subsection -17(l) does not provide the trial court with sentence

modification authority:


        [Subsection -17(l)] further provides that “[t]his subsection does
        not prohibit the finding of a waiver of the right to sentence
        modification for any other reason.” Thus, this subsection is only
        speaking to waiver provisions within a plea agreement that
        would remove the authority to modify that a court would
        otherwise possess under the terms of the agreement. It does not

Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018     Page 14 of 17
               speak to any other way in which the right to seek a modification
               could otherwise be waived, such as by entering into an agreement
               to receive a specific sentence. . . . If the General Assembly had
               intended to . . . allow modifications of fixed-sentence pleas, it
               would have said so directly. Instead, the legislature included
               language allowing trial courts to find the right to seek a
               modification waived “for any other reason,” which would
               include the reason that the defendant bargained for and agreed
               that she would serve this specific sentence.


       Id. at 13-14.


[21]   I cannot agree with the State’s tortured interpretation of the plain statutory

       language. First, as to what sentence the trial court is “authorized” to impose at

       the time of sentencing, that authorization is bound not only by the language of

       the plea agreement but also by the law. And the General Assembly has quite

       clearly stated that, as of July 2014, “[a] person may not waive the right to

       sentence modification under this section as part of a plea agreement.” I.C. § 35-

       38-1-17(l). Therefore, following the enactment of these statutory amendments,

       the legislature has declared that trial courts are not authorized to impose a

       sentence that purports to waive the defendant’s right to a later modification.


[22]   Second, while the State insists that subsection -17(l) does not allow

       modifications of fixed sentence plea agreements, I disagree. The General

       Assembly could easily have carved out an explicit exception for fixed sentence

       plea agreements, but it did not do so. Instead, it plainly stated that a person

       may not waive the right to sentence modification as part of a plea agreement—




       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018   Page 15 of 17
       any plea agreement—and went a step further, cautioning that any such

       purported waiver is invalid, unenforceable, and against public policy. Id.


[23]   The statute says what it says, and we are bound to interpret and apply statutes

       in a way that fulfills the legislature’s intent. And this version of the statute

       clearly and unambiguously states that offenders “may not waive the right to

       sentence modification . . . as part of a plea agreement.” I.C. § 35-38-1-17(e).


[24]   Here, the trial court explicitly found that Stafford has completed many

       programs while incarcerated, has a solid plan in place for her reentry into

       society, and has been rehabilitated to the extent it is possible to do so during her

       incarceration. Under these circumstances, I believe that the trial court did not

       err by granting Stafford’s motion to modify in this case.


                                               2018 Amendment

[25]   The 2018 amendment does not change my opinion regarding the way in which

       this case should be resolved. I do not believe that the General Assembly can or

       should attempt to retroactively void a court order by statute. In my view, such

       an attempt violates the Indiana Constitution’s Separation of Powers provision

       by overstepping and taking away the judicial power of the trial court. Ind.

       Const. Art. 3, Section 1.


[26]   Here, the amendment of Indiana Code section 35-38-1-17 was aimed squarely

       at this Court’s Stafford decision as well as the trial court’s original order under

       consideration. While it is clear that the amended statutory language precludes

       future trial courts from taking the actions that were taken in this case, in my

       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018   Page 16 of 17
opinion, the after-the-fact amendment should not be allowed to vitiate what has

already occurred in this particular case. For these reasons, I would again affirm

the trial court. Therefore, I respectfully dissent.




Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018   Page 17 of 17
