OPINION ON REMAND
                                                                          FILED
                                                                     Dec 14 2018, 9:29 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jessica R. Merino                                        Curtis T. Hill, Jr.
Merino Law Firm, PC                                      Attorney General
Goshen, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alberto Baiza Rodriguez,                                 December 14, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A03-1704-CR-724
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable David C.
Appellee-Respondent                                      Bonfiglio, Judge
                                                         Trial Court Cause No.
                                                         20D06-1503-F6-264



Crone, Judge.




Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018         Page 1 of 18
                                             Case Summary
[1]   In our prior opinion in this case, Rodriguez v. State, 91 N.E.3d 1033 (Ind. Ct.

      App. 2018), trans. granted, we held that the trial court erred in ruling that

      Alberto Baiza Rodriguez had waived his right to seek modification of his fixed

      sentence imposed pursuant to a plea agreement in 2016 for crimes committed in

      2015. We based our holding on a 2014 statutory amendment which

      unambiguously provides that “[a] person may not waive the right to sentence

      modification under this section as part of a plea agreement.” Ind. Code § 35-

      38-1-17(l) (2014). Our supreme court granted transfer. The court did not hold

      that our interpretation of the statute was erroneous and affirm the trial court’s

      ruling; instead, the court remanded with instructions to reconsider our holding

      in light of the legislature’s 2018 amendments to Indiana Code Sections 35-38-1-

      17 and 35-35-1-2.


[2]   We invited the parties to submit supplemental materials, which they did.

      Rodriguez argues that the 2018 amendments are not intended to apply

      retroactively, and, even if they were, such an application would

      unconstitutionally impair his contractual rights under his plea agreement with

      the State. We agree with Rodriguez. Therefore, we reaffirm our original

      holding, reverse the trial court’s denial of Rodriguez’s motion to modify his

      sentence, and remand for further proceedings consistent with this opinion.




      Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 2 of 18
                                 Facts and Procedural History
[3]   Based on a March 2015 incident, the State charged Rodriguez with several

      offenses and with being a habitual vehicle substance offender. In January 2016,

      Rodriguez and the State entered into a written plea agreement in which

      Rodriguez agreed to plead guilty to all but one of the charges and serve seventy-

      two months in the Department of Correction on work release, and the State

      agreed to dismiss the remaining charge and not file additional charges. The

      trial court accepted the agreement and sentenced Rodriguez accordingly.


[4]   In January 2017, Rodriguez filed a motion to modify his sentence on the basis

      of family hardship and asserted that the then-current version of Indiana Code

      Section 35-38-1-17(e) permitted the trial court to modify his remaining sentence

      to home detention:


              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. The court must incorporate its reasons in the record.


      Rodriguez asked the trial court to order a report from the work release program

      and set the matter for hearing, which it did.




      Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 3 of 18
[5]   At the hearing, the trial court acknowledged that the work release report was

      “very outstanding[,]” Tr. Vol. 2 at 7, but ultimately it issued an order

      concluding that it did “not have the authority to modify the sentence because

      the court accepted the parties’ plea agreement which requires the defendant to

      serve the sentence in Work Release.” The court referenced Indiana Code

      Section 35-35-3-3(e), which states, “If the court accepts a plea agreement, it

      shall be bound by its terms.” The court also quoted the then-current version of

      Indiana Code Section 35-38-1-17(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
              sentence modification for any other reason, including failure to
              comply with the provisions of this section[, which limit the
              number of times a person may file a petition for sentence
              modification without the consent of the prosecuting attorney].


      (Emphasis added.) This provision had been added to the statute in 2014. The

      court concluded that the italicized phrase “applies to the specific terms of a plea

      agreement that the court has accepted[,]” and thus “entering into a binding plea

      agreement waives the right to seek or receive a modification of sentence.”


[6]   Rodriguez appealed, arguing that the trial court erred in ruling that he had

      waived his right to seek modification of his sentence. We addressed his

      argument as follows:




      Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 4 of 18
        It is hornbook law that a plea agreement is contractual in nature,
        binding both the defendant and the State. E.g., St. Clair v. State,
        901 N.E.2d 490, 492 (Ind. 2009). “Bargaining between the State
        and a pleading defendant will have produced for court
        consideration an agreement that either specifies a precise penalty
        or leaves some or all of the specifics to the judgment of the trial
        court.” Id. at 493. “[I]t is up to the trial court to accept or reject
        the plea agreement as filed.” Badger v. State, 637 N.E.2d 800, 802
        (Ind. 1994). As noted above, once a trial court accepts a plea
        agreement, it is bound by its terms. Ind. Code § 35-35-3-3(e).


        In years past, the legislature placed significant limitations on a
        trial court’s authority to modify a sentence imposed after a trial.
        A trial court could reduce or suspend a defendant’s sentence
        within the first three hundred sixty-five days (commonly known
        as “shock probation”), but after that point most reductions or
        suspensions were subject to approval of the prosecuting attorney.
        See Ind. Code § 35-38-1-17 (formerly 35-38-1-23) (historical
        statutes). With respect to plea agreements containing a fixed
        sentence, our supreme court held as follows:


                 Once it has accepted a plea agreement
                 recommending a specific sentence, … the terms of
                 the agreement constrain the discretion the court
                 would otherwise employ in sentencing. Even after a
                 sentence has been imposed pursuant to a plea
                 agreement containing a recommendation of a specific
                 term of years, that sentence may not be altered upon
                 subsequent motion, such as under Ind. Code § 35-38-
                 1-23 for “shock probation,” unless the agreement
                 contained a specific reservation of such authority for
                 the trial judge. [State ex rel. Goldsmith v. Marion Cty.
                 Super. Ct., 275 Ind. 545, 551-52, 419 N.E.2d 109, 114
                 (1981)].

                 Goldsmith and its progeny each uphold the principle

Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 5 of 18
                 that a deal is a deal. Once it has accepted a plea
                 agreement, the sentencing court possesses only that
                 degree of discretion provided in the plea agreement
                 with regard to imposing an initial sentence or altering
                 it later.


        Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994).


        Since 2014, however, the legislature has gradually relaxed the
        restrictions on sentence modification, allowing trial courts to
        reduce or suspend sentences for nonviolent offenders “[a]t any
        time” without prosecutorial approval in certain circumstances.
        Ind. Code § 35-38-1-17(e), -(j). The legislature also added what is
        now Section 35-38-1-17(l), which, as mentioned above, provides
        that “[a] person may not waive the right to sentence modification
        under this section as part of a plea agreement” and that “[a]ny
        purported waiver of the right to sentence modification under this
        section in a plea agreement is invalid and unenforceable as
        against public policy.” Section 35-38-1-17(l) also provides that it
        “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 the statute.


        In this case, Rodriguez’s plea agreement contained a specific
        reservation of authority for the trial court to modify his sentence,
        but only in the event that he was incarcerated, which he was
        not.… The trial court essentially concluded that by entering into
        a plea agreement with a fixed sentence to be served on work
        release, Rodriguez waived the right to modification of that
        sentence. But that is precisely what Section 35-38-1-17(l)
        prohibits in no uncertain terms as a violation of public policy; it
        does not distinguish between implicit or explicit waivers, and we
        may not read such a distinction into the statute. [N.D.F. v. State,
        775 N.E.2d 1085, 1088 (Ind. 2002)].



Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 6 of 18
        The State argues,


                 In plea bargains, the State is often agreeing to dismiss
                 other (often, more serious) charges or to forego filing
                 additional charges in exchange for the certainty of a
                 definite sentence or definite limits on sentencing
                 options that ensure the defendant will receive no less
                 than a certain sentence. If that fixed sentence can be
                 modified at any time, or if the negotiated limits on
                 sentencing discretion can be ignored at any time,
                 then the agreement is purely illusory, and the State is
                 not receiving the benefit for which it bargained. The
                 State will be unwilling to enter into plea agreements
                 if they will not be enforced.


        Appellee’s Br. at 12. We acknowledge the State’s concern, but as
        another panel of this Court stated in response to a similar
        argument in a recent case,


                 the statute says what it says, and we are bound to
                 interpret and apply statutes in a way that fulfills the
                 legislature’s intent. Unless and until the General
                 Assembly clarifies the statute at issue, it clearly and
                 unambiguous[ly] states that offenders “may not
                 waive the right to sentence modification … as part of
                 a plea agreement.”


        State v. Stafford, 86 N.E.3d 190, 193 (Ind. Ct. App. 2017) (quoting
        Ind. Code § 35-38-1-17(l)), trans. granted.


        The State also points to Section 35-35-3-3(e), which provides that
        a trial court “shall be bound” by the terms of a plea agreement
        that it accepts, and argues that if the legislature “had intended to
        change this law and allow modifications of fixed-sentence pleas,
        it would have said so directly.” Appellee’s Br. at 13-14. We

Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 7 of 18
        think that the legislature said so directly in Section 35-38-1-17(l).
        The State also mentions Section 35-38-1-17(e), which states that a
        court “may reduce or suspend [a] sentence and impose a sentence
        that the court was authorized to impose at the time of
        sentencing”; the State contends that “in 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.” Appellee’s Br. at 11. As the Stafford
        court said, “[w]e cannot agree with the State’s tortured
        interpretation of the plain statutory language.” 86 N.E.3d at 193.


                 [A]s 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.


        Id.


        Based on the foregoing, we believe that Sections 35-35-3-3(e), 35-
        38-1-17(e), and 35-38-1-17(l) may be harmonized to preserve a
        defendant’s right to modification of a fixed sentence imposed
        under a plea agreement.… If the legislature disagrees with our
        interpretation of Section 35-38-1-17(l), then it may clarify the
        statute accordingly. We hold that modification of Rodriguez’s
        sentence is permissible under Section 35-38-1-17(l), and therefore
        we reverse and remand for further proceedings consistent with
        this opinion.
Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 8 of 18
      Rodriguez, 91 N.E.3d at 1036-38 (footnotes omitted).


[7]   The State filed a petition for transfer, which our supreme court granted in

      March 2018, thereby vacating our opinion. On July 12, the court issued a two-

      paragraph order in which it remanded this case for reconsideration “in light of”

      the legislature’s most recent amendments to Sections 35-38-1-17 and 35-35-1-2,

      which became effective July 1, 2018. Rodriguez v. State, 100 N.E.3d 696, 696

      (Ind. 2018).1 The court also mentioned that Section 35-38-1-17 “provides that

      the section applies to a person who commits an offense or is sentenced before

      July 1, 2014, notwithstanding Indiana Code section 1-1-5.5-21.” Id.2 Although

      the court vacated our opinion, it did not expressly disagree with or disapprove

      of our interpretation of the 2014 amendments to Section 35-38-1-17.


[8]   Both parties accepted our invitation to submit supplemental materials, and we

      thank them for their submissions. Having reconsidered our holding in light of

      the 2018 legislative amendments, as well as the parties’ supplemental briefs, we

      reaffirm that holding for the reasons given below.




      1
          The court issued a similar order in Stafford. 100 N.E.3d 696 (Ind. 2018).
      2
          Indiana Code Section 1-1-5.5-21(a) states,

               A SECTION of P.L. 158-2013 or P.L. 168-2014 [both of which amended Section 35-38-1-17]
               does not affect:
               (1) penalties incurred;
               (2) crimes committed; or
               (3) proceedings begun;
               before the effective date of that SECTION of P.L. 158-2013 or P.L. 2014. Those penalties,
               crimes, and proceedings continue and shall be imposed and enforced under prior law as if that
               SECTION of P.L.158-2013 or P.L.168-2014 had not been enacted.

      Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018             Page 9 of 18
                                     Discussion and Decision
[9]   For context, we set out the relevant parts of Sections 35-38-1-17 and 35-35-1-2,

      with the 2018 amendments italicized:


              (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:


                       (1) have a court modify a sentence and impose a sentence not
                       authorized by the plea agreement, as described under subsection
                       (e); or


      Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 10 of 18
                 (2) sentence modification for any other reason, including
                 failure to comply with the provisions of this section.


Ind. Code § 35-38-1-17 (2018) (emphases added).


        (a) The court shall not accept a plea of guilty or guilty but
        mentally ill at the time of the crime without first determining that
        the defendant:


                 (1) understands the nature of the charge against the
                 defendant;

                 ….

                 (5) has been informed that if:


                         (A) there is a plea agreement as defined by IC 35-
                         31.5-2-236; and

                         (B) the court accepts the plea;


                 the court is bound by the terms of the plea agreement at the
                 time of sentencing and with respect to sentence modification under
                 IC 35-38-1-17.




Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 11 of 18
       Ind. Code § 35-35-1-2 (2018) (emphasis added). In sum, the 2018 amendments

       provide that a sentence imposed “under the terms of a plea agreement” may not

       be modified to “a sentence not authorized by the plea agreement” without the

       prosecuting attorney’s consent, which was not the case between July 1, 2014,

       and July 1, 2018.


[10]   Rodriguez posits that “[t]he Supreme Court’s remand for reconsideration …

       seems to suggest that the General Assembly’s changes to the law may have

       some retroactive effect on this Court’s prior ruling[,]” and he correctly observes

       that, “[a]s a general rule, changes in law apply prospectively only unless the

       General Assembly expressly provided otherwise.” Appellant’s Supp. Br. at 4, 5.

       See Diaz v. State, 753 N.E.2d 724, 728 n.5 (Ind. Ct. App. 2001) (“Generally,

       amendatory acts are given prospective effect only, unless retrospective

       application is expressly provided therein.”), trans. denied; see also Sales v. State,

       723 N.E.2d 416, 421 (Ind. 2000) (“Subsequent legislation does not serve

       retroactively to amend legislation or declare the intent of a prior General

       Assembly.”).3 Rodriguez further observes that “[e]ven when [amendments] are

       remedial, retroactive application is disfavored when existing rights would be




       3
         In arguing that the legislature intended for the 2018 amendments to apply retroactively to Rodriguez, the
       State asserts that their enactment only several months after Stafford is “remarkably similar to the legislature’s
       statutory amendments regarding untimely amendments to a charging information” in response to our
       supreme court’s opinion in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). Appellee’s Supp. Br. at 10. In Hurst
       v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), trans. denied, this Court found that the legislature intended
       for those amendments to apply retroactively, even though it “did not expressly provide” for that. We need
       not address this argument because even if we were to conclude that the legislature intended for the 2018
       amendments to apply retroactively, we would find such an application unconstitutional as to Rodriguez for
       the reasons given below.

       Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018              Page 12 of 18
       infringed.” Id. (quoting Brane v. Roth, 590 N.E.2d 587, 590 (Ind. Ct. App.

       1992), trans. denied). He argues that applying the 2018 amendments to Sections

       35-38-1-17 and 35-35-1-2 retroactively to plea agreements made between July 1,

       2014, and July 1, 2018, “would infringe on a plea bargainer’s right to petition

       for a modification as it existed under the modification statute at the time.” Id.

       “The challenger to the validity of a statute must overcome a presumption that

       the statute is constitutional. That party bears the burden of proving otherwise.”

       Johnson v. State, 38 N.E.3d 686, 690 (Ind. Ct. App. 2015) (citation omitted). We

       conclude that Rodriguez has met that burden here.


[11]   Plea agreements are contracts, and contract law principles provide guidance in

       considering the agreement. Fowler v. State, 977 N.E.2d 464, 467 (Ind. Ct. App.

       2012), aff’d on reh’g, 981 N.E.2d 623 (2013), trans. denied. “Generally, unless a

       contract provides otherwise, all applicable law in force when the agreement is

       made impliedly forms a part of the agreement without any statement to that

       effect.” Id. at 468. The applicable law in force when Rodriguez entered his

       plea agreement with the State included the 2014 amendments to Section 35-38-

       1-17, which we have held allow the modification of fixed sentences. “Article I,

       Section 10 of the United States Constitution provides that no state shall pass

       any law impairing the obligations of contracts.” Mainstreet Prop. Grp., LLC v.




       Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 13 of 18
       Pontones, 97 N.E.3d 238, 244 (Ind. Ct. App. 2018), trans. denied.4 “It long has

       been established that the Contract Clause limits the power of the States to

       modify their own contracts as well as to regulate those between private parties.”

       Id. (quoting U.S. Tr. Co. of New York v. New Jersey, 431 U.S. 1, 17 (1977)); see also

       Carr v. State ex rel. Du Coetlosquet, 127 Ind. 204, 207, 26 N.E. 778, 779 (1891)

       (“The principle that a state, in entering into a contract, binds itself substantially

       as an individual does under similar circumstances, necessarily carries with it the

       inseparable and subsidiary rule that it abrogates the power to annul or impair its

       own contract.”).


[12]   The federal constitution’s “Contract Clause prohibits changes in law only if

       they operate ‘as a substantial impairment of a contractual relationship.’” Elliott

       v. Bd. of Sch. Trs. of Madison Consol. Sch., 876 F.3d 926, 932 (7th Cir. 2017)

       (quoting Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992) (quoting Allied

       Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978)), cert. denied (2018).

       “This standard balances individual rights to organize personal affairs against

       the States’ ‘necessarily reserved’ sovereign power to protect the general

       welfare.” Id. (quoting U.S. Tr. Co., 431 U.S. at 21). “The Supreme Court has

       harmonized these interests by applying a two-step analysis, asking first whether

       a change in state law has substantially impaired a contractual relationship, and




       4
         “Similarly, Article 1, Section 24 of the Indiana Constitution provides that no law impairing the obligation
       of contracts shall ever be passed.” Mainstreet Prop. Grp., LLC, 97 N.E.3d at 244. Because we hold that
       retroactive application of the 2018 amendments would be unconstitutional as to Rodriguez under the federal
       constitution, we need not address his state constitutional argument.

       Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018           Page 14 of 18
       second whether the impairment is reasonable and necessary for a legitimate

       public purpose.” Id. (citation omitted).


[13]   Regarding the first step, we must consider “(1) whether there is a contractual

       relationship; (2) whether a change in law impairs that contract; and (3) whether

       the impairment is substantial.” Id. The answer to (1) is obviously yes. As for

       (2), assuming for argument’s sake that the 2018 amendments apply

       retroactively, they would impair Rodriguez’s plea agreement by requiring

       prosecutorial consent for modification of his sentence, whereas none was

       required when the plea agreement was made.


[14]   And as for (3), we note that “substantial impairment does not require a

       complete destruction of the contractual relationship.” Id. at 934. “The issue is

       whether the impairment disrupts reasonable contractual expectations.” Id.

       “The Supreme Court’s decisions under the Contract Clause show that reliance

       interests are key to this inquiry.” Id. “When a State makes an express

       commitment to private businesses or individuals, reliance may be highly

       justified.” Id. at 937. We must make the following inquiries: (1) whether the

       impaired term was “a ‘central undertaking’ of the bargain such that it

       ‘substantially induced’” Rodriguez to enter the plea agreement; and (2) whether

       the change in law was foreseeable, “meaning that the risk of change was

       reflected in the original contract[.]” Id. at 934 (quoting City of El Paso v.

       Simmons, 379 U.S. 497, 514 (1965)).


[15]   Regarding the first inquiry, Rodriguez argues,


       Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 15 of 18
               the plea agreement called for 72 months in the IDOC to be
               served on Work Release. Although this Court previously stated
               that Rodriguez was not incarcerated as a result of his plea, a 72-
               month term of incarceration at the IDOC is contemplated in the
               plea, and as the Court noted, the plea discusses a modification.
               Thus, the modification statute was invoked in Rodriguez’s
               agreement, and by “knowingly” entering his plea, Rodriguez
               executed his plea agreement with the understanding that the
               plain language of I.C. § 35-38-1-17 gave him a right to petition
               the court for a sentence modification. Regardless of whether
               Rodriguez was incarcerated as a result of his plea, the express
               term in his agreement squarely places the prior version of the
               modification statute within his contract expectations, and
               Rodriguez was entitled to rely on the continuing application of
               the law.


       Appellant’s Supp. Br. at 9-10 (citations omitted). And regarding the second

       inquiry, Rodriguez argues that although he “could have foreseen that the

       General Assembly would change the law, he could not have foreseen a

       retroactive application. ‘One can anticipate that any state law may change in

       the future, but retroactive application to impair existing contract rights and

       reliance interests is another question.’” Id. at 10 (quoting Elliott, 876 F.3d at

       936). We find both arguments persuasive.


[16]   “Still, not even all substantial impairments of contracts are unconstitutional. If

       the impairment is both reasonable and necessary for an important public

       purpose, then the law does not violate the Contract Clause.” Elliott, 876 F.3d at

       936. “Courts owe at least some deference to legislative determinations of

       reasonableness and necessity. The degree of deference differs depending on the

       severity of the impairment and on the State’s self-interest.” Id. at 936-37

       Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 16 of 18
       (citations omitted). “When a State impairs its own contracts, the impairment

       must be ‘clearly necessary’ or ‘essential,’ not merely convenient or expedient.”

       Id. at 938 (quoting Simmons, 379 U.S. at 516, and U.S. Trust Co., 431 U.S. at

       29). “A substantial impairment is not necessary if the State could achieve the

       goal through a less drastic modification’ or ‘without modifying’ the contract ‘at

       all.’” Id. (quoting U.S. Trust Co., 431 U.S. at 29).


[17]   Rodriguez contends,


               Although the General Assembly has amended the statute to
               reflect their present intentions, the prior version cannot be viewed
               as a mere drafting error. The language was plain, and
               individuals relied upon its plain meaning when entering into
               fixed-sentence pleas. Retroactive application is neither necessary
               nor reasonable when applied to [] plea agreements entered under
               the 2014 version of the modification statute because the State
               could have protected [itself] via contract [i.e., by stipulating
               conditions in a plea offer by which a defendant may seek a
               modification] ….


       Appellant’s Supp. Br. at 11. We find this argument persuasive as well and

       therefore hold that retroactive application of the 2018 amendments as to

       Rodriguez would violate the federal constitution’s Contract Clause.


[18]   On a more basic level, regardless of whether retroactive application of the 2018

       amendments would substantially impair Rodriguez’s contractual rights under

       the plea agreement, it would be fundamentally unfair. As the Seventh Circuit

       Court of Appeals stated in Elliott, “It is not fair to change the rules so

       substantially when it is too late for the affected parties to change course.” 876

       Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 17 of 18
       F.3d at 935; see also Woody’s Grp., Inc. v. City of Newport Beach, 183 Cal. Rptr. 3d

       318, 330 (Cal. Ct. App. 2015) (“[C]hanging the rules in the middle of the game

       does not accord with fundamentally fair process.”). Based on the foregoing, we

       reaffirm our prior holding, reverse the trial court’s denial of Rodriguez’s motion

       to modify his sentence, and remand for further proceedings consistent with this

       opinion.


[19]   Reversed and remanded.


       Mathias, J., concurs.

       Rucker, S.J., dissents with separate opinion.

       Rucker, S.J., dissenting.

       For the reasons expressed in my earlier dissenting opinion, I respectfully dissent

       from the majority’s opinion in the instant case. See Rodriguez v. State, 91 N.E.3d

       1033, 1038-40 (Ind. Ct. App. 2018).




       Court of Appeals of Indiana | Opinion on Remand 20A03-1704-CR-724 | December 14, 2018   Page 18 of 18
