MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                            Nov 08 2018, 8:18 am
the defense of res judicata, collateral
                                                                            CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Gary Amick                                              Curtis T. Hill, Jr.
Branchville, Indiana                                    Attorney General of Indiana

                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Amick,                                             November 8, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1027
        v.                                              Appeal from the Scott Circuit
                                                        Court
State of Indiana,                                       The Honorable Roger L. Duvall,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        72C01-1512-F5-63
                                                        72C01-1405-FA-7



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018                Page 1 of 5
                                            Case Summary
[1]   Gary Amick entered into a plea agreement with the State which provided for a

      fixed sentence of eight years of incarceration and was sentenced accordingly.

      On January 15, 2018, Amick moved for modification of sentence, which

      motion was denied. Amick contends that the trial court erred in denying his

      motion for modification. Because we disagree, we affirm.



                             Facts and Procedural History
[2]   On August 15, 2016, pursuant to a plea agreement, Amick pled guilty to a

      Level 5 felony possession of a handgun without a license under cause number

      72C01-1512-F5-63 (“Cause No. F5-63”) and a Class C felony dealing in a

      scheduled IV controlled substance under cause number 72C01-1405-FA-7

      (“Cause No. FA-7”). The plea agreement provided for a fixed term of four

      years of incarceration in Cause No. F5-63 and a fixed term of four years of

      incarceration in Cause No. FA-7, to be served consecutively. In exchange for

      Amick’s plea, the State agreed to dismiss numerous additional counts in each

      cause.1 On September 12, 2016, the trial court sentenced Amick pursuant to the

      plea agreement. On January 15, 2018, Amick moved to modify his sentence,

      which motion the trial court denied. The trial court found that Amick was




      1
        The State dismissed nine counts in F5-63, three counts in FA-7, and a petition to revoke Amick’s suspended
      sentence in another cause.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018                 Page 2 of 5
      sentenced pursuant to the terms of the plea agreement and was therefore not

      entitled to modification.



                                Discussion and Decision
[3]   Amick contends that the trial court erred in denying his motion for

      modification of sentence. Amick asserts that, pursuant to Indiana Code section

      35-38-1-17, he was eligible for, and the trial court could have granted,

      modification of his sentence. Amick also contends that he could not have

      waived his right to seek modification in the plea agreement under the statute.

      As an initial matter, because the trial court never found that Amick waived his

      right to seek modification, we do not address that claim. We review the trial

      court’s decision concerning modification of a sentence for an abuse of

      discretion. Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans.

      denied. “An abuse of discretion occurs when the trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before the court or

      when the court misinterprets the law.” Id. Where parties differ as to the

      interpretation of a statute, which is a question of law, we review the trial court’s

      decision interpreting such statute de novo. Id.


[4]   Plea agreements are contractual in nature, binding the defendant, the State, and

      the trial court once the trial court accepts it. St. Clair v. State, 901 N.E.2d 490,

      492 (Ind. 2009). Once the trial court accepts the plea agreement, it possesses

      only the amount of sentencing discretion provided for in the agreement. Id. at

      493. A plea agreement may be modified by statute

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018   Page 3 of 5
              [a]t any time after a convicted person begins serving the person’s
              sentence; and 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.


      Ind. Code § 35-38-1-17(e) (emphasis added).


[5]   Although Amick contends that the trial court could have modified his sentence

      because of his eligibility pursuant to Indiana Code section 35-38-1-17, he bases

      his argument on case law that has been vacated by the Indiana Supreme Court.

      See Rodriguez v. State, 100 N.E.3d 696 (Ind. 2018) (vacating the Court of

      Appeals’s opinion and remanding for further proceedings consistent with recent

      changes made to Indiana Code section 35-38-1-17 regarding the modification of

      sentences imposed pursuant to plea agreements). Indiana Code section 35-38-1-

      17 is clear that if a trial court chooses to modify a defendant’s sentence, it may

      only impose a sentence that it could have imposed at the time of sentencing.

      The plea agreement that Amick and the State agreed to, and the trial court

      accepted, provided for a fixed sentence of eight years. No other sentence was

      authorized by the plea agreement. Therefore, the trial court could not modify

      Amick’s sentence because the eight-year sentence was the only one it was

      authorized to impose. Rivera v. State, 851 N.E.2d 299, 301 (Ind. 2006). Amick



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018   Page 4 of 5
      has failed to establish that the trial court erred in denying his motion for

      modification of sentence.


[6]   The judgment of the trial court is affirmed.


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018   Page 5 of 5
