MEMORANDUM DECISION
                                                                   Jul 07 2015, 8:41 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Herbert Cox III                                           Gregory F. Zoeller
Westville, Indiana                                        Attorney General of Indiana

                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Herbert Cox III,                                          July 7, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          45A03-1501-CR-38
        v.                                                Appeal from the Lake Superior
                                                          Court
                                                          The Honorable Diane R. Boswell,
The State of Indiana,                                     Judge
Appellee-Plaintiff.                                       The Honorable Kathleen A.
                                                          Sullivan, Magistrate
                                                          Trial Court Cause No. 45G03-1210-
                                                          FD-239




Bradford, Judge.



                                      Case Summary


Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015         Page 1 of 10
[1]   In February of 2013, Appellant-Defendant Herbert Cox III pled guilty to Class

      C felony habitual traffic violator. Pursuant to the terms of Cox’s plea

      agreement, the trial court sentenced Cox to a term of seven years, all of which

      was to be executed in the Department of Correction. In December of 2014,

      Cox filed a petition seeking a modification of his sentence. The trial court

      denied Cox’s petition. On appeal, Cox contends that the trial court abused its

      discretion in denying his petition. Finding no abuse of discretion, we affirm.



                            Facts and Procedural History
[2]   On or about May 3, 1995, Cox’s driving privileges were suspended for life after

      Cox was found to have driven while being a habitual traffic violator. On

      October 6, 2012, Cox was stopped by the Lake Station Police Department for

      operating a motor vehicle, i.e., a black Harley Davidson motorcycle, at the

      speed of approximately 100 miles per hour in a posted thirty-five miles per hour

      zone. Cox was subsequently charged with Class C felony habitual traffic

      violator. He was also alleged to have committed numerous traffic infractions.


[3]   On or about February 19, 2013, Cox pled guilty to the Class C felony habitual

      traffic violator charge. The terms of Cox’s plea agreement are as follows:

              A.     [Cox] agrees to plead guilty to the charge of Habitual Traffic
              Violator, a Class C Felony, in Cause #45G03-1210-FD-00239;
              B.     The Parties agree that [Cox] shall be sentenced to seven (7)
              years to be executed in the Department of Correction.
              C.     The Parties agree and understand that participation in an
              alternative sentence program is not an option for [Cox], for his plea of


      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015   Page 2 of 10
              guilty to the charge of Habitual Traffic Violator, a Class C Felony, in
              Cause #45G03-1210-FD-00239;
              D.     The Parties agree and understand that the sentence imposed in
              Cause #45G03-1210-FD-00239 shall be served consecutive to any/all
              sentences(s) currently imposed in Lake County and Porter County;
              E.     The Parties agree and understand that the sentence imposed in
              Cause #45G03-1210-FD-00239 shall be served consecutive to any/all
              sentence(s) to be imposed in Lake County and Porter County;
              F.     Additionally, any Defendant on Pretrial ICU Monitoring will
              not receive credit days toward their sentence[;]
              G.     At the time of sentencing, [Appellee-Plaintiff the State of
              Indiana (the “State”)] agrees to dismiss Cause #45G03-1206-FD-
              00136 in its entirety; [and]
              F.     Attached hereto and incorporated herein as Exhibit ‘A’ is the
              Stipulated Factual Basis.


      Appellant’s App. p. 7 (italics added, bold in original). The trial court approved

      the parties’ plea agreement and sentenced Cox in accordance with its terms.

[4]   On December 4, 2014, Cox filed a pro-se petition for the modification of his

      sentence. The trial court denied Cox’s petition, stating that “The Court rules

      that pursuant to Robinette v. State[,] 798 N.E.2d 537 (Ind. App. 2003) and ex

      rel Goldsmith v. Superior Court, 419 N.E.2d 109 (Ind. 1981), the Court is

      without authority to, and may not, modify the sentence.” Appellant’s App. p. 4

      (bold in original). Cox subsequently filed a pro-se motion to reconsider. The

      motion to consider was also denied by the trial court. This appeal follows.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015   Page 3 of 10
                                 Discussion and Decision                           1




[5]   Cox contends that the trial court abused its discretion by denying his petition

      for a modification of his seven-year sentence. Specifically, Cox claims that the

      trial court abused its discretion in determining that it did not have the authority

      to modify Cox’s sentence. “We review a trial court’s decision to modify a

      sentence only for abuse of discretion.” Hobbs v. State, 26 N.E.3d 983, 985 (Ind.

      Ct. App. 2015) (citing Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010)). “An

      abuse of discretion occurs if the court’s decision is clearly against the logic and

      effect of the facts and circumstances before the court.” Id. (citing Myers v. State,

      718 N.E.2d 783, 789 (Ind. Ct. App. 1999)).


[6]   Again, Cox claims that the trial court abused its discretion in stating that it did

      not have the authority to modify Cox’s sentence. In support of this claim, Cox

      relies on sub-section (i) of the version of Indiana Code section 35-38-1-17 which

      went into effect on July 1, 2014. Cox asserts that it was the General Assembly’s

      intent that this subsection would apply retroactively to a defendant who

      committed a criminal act, was found guilty, and was sentenced prior to the date

      when the amended version of Indiana Code section 35-38-1-17 went into effect.

      We disagree.




      1
       We note that the State argued, on cross-appeal, that Cox’s appeal should be dismissed
      because it was not timely filed. Given our preference to decide matters on the merits, we will
      not address the State’s argument regarding whether the instant appeal was timely filed and
      will instead decide Cox’s claim on the merits.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015   Page 4 of 10
[7]   Indiana Code section 35-38-1-17 relates to the reduction or suspension of a

      sentence. Effective July 1, 2014, the Indiana General Assembly amended

      Indiana Code section 35-38-1-17 to read, in pertinent part,

              (i) 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.


      2014 Ind. Legis. Serv. P.L. 168-2014. In light of this language, which again

      Cox argues was intended to apply retroactively, Cox claims that the trial court

      abused its discretion in finding that it did not have the authority to modify his

      sentence because Cox’s plea agreement was for a fixed term and indicated that

      Cox had waived any potential future request for a sentence modification.

[8]   However, the General Assembly made it clear that it did not intend for the

      version of Indiana Code section 35-38-1-17 that went into effect on July 1,

      2014, to apply retroactively. Also effective July 1, 2014, the General Assembly

      passed Indiana Code section 1-1-5.5-21 which stated as follows:

              (a) A SECTION of P.L. … P.L.168-2014 does not affect:
                       (1) penalties incurred;
                       (2) crimes committed; or
                       (3) proceedings begun;
              before the effective date of that SECTION of … P.L.168-2014. Those
              penalties, crimes, and proceedings continue and shall be imposed and



      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015   Page 5 of 10
               enforced under prior law as if that SECTION of … P.L.168-2014 had
               not been enacted.
               (b) The general assembly does not intend the doctrine of amelioration
               (see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any
               SECTION of … P.L.168-2014.


[9]    In addition, we have previously concluded that the revisions of Indiana Code

       section 35-38-1-17 that went into effect on July 1, 2014, do not apply

       retroactively. See Swallows v. State, 31 N.E.3d 544, 545-47 (Ind. Ct. App. 2015)

       (noting the plain meaning of the savings clause, and following the intent of the

       Legislature and our court’s reasoning in Hobbs, we conclude that the current

       version of Indiana Code section 35-38-1-17, which became effective July 1,

       2014, does not apply to Swallows’s petition to modify a sentence that he began

       serving in 1989); Hobbs, 26 N.E.3d at 985 (concluding that “despite Hobbs’[s]

       assertions to the contrary on appeal, there is no question that the current

       version of Indiana Code Section 35-38-1-17 does not apply to him”); Marley v.

       State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (concluding that “[i]t is

       abundantly clear from these statutes that the General Assembly intended the

       new criminal code to have no effect on criminal proceedings for offenses

       committed prior to the enactment of the new code”), trans. denied. As such, we

       conclude that the version of Indiana Code section 35-38-1-17 that was in effect

       at the time Cox committed the underlying offense applies to Cox.


[10]   Again, Cox committed the underlying offense of Class C felony habitual traffic

       violator on October 6, 2012. The version of Indiana Code section 35-38-1-17




       Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015   Page 6 of 10
that was in effect at the time Cox committed this criminal offense read as

follows:

        (a) Within three hundred sixty-five (365) days after:
                 (1) a convicted person begins serving the person's
                 sentence;
                 (2) a hearing is held:
                         (A) at which the convicted person is
                         present; and
                         (B) of which the prosecuting attorney has
                         been notified; and
                 (3) 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. The court
                 must incorporate its reasons in the record.
        (b) If more than three hundred sixty-five (365) days have elapsed since
        the convicted person began serving the sentence and after a hearing at
        which the convicted person is present, the court may reduce or
        suspend the sentence, subject to the approval of the prosecuting
        attorney. However, if in a sentencing hearing for a convicted person
        conducted after June 30, 2001, the court could have placed the
        convicted person in a community corrections program as an
        alternative to commitment to the department of correction, the court
        may modify the convicted person’s sentence under this section without
        the approval of the prosecuting attorney to place the convicted person
        in a community corrections program under IC 35-38-2.6.
        (c) The court must give notice of the order to reduce or suspend the
        sentence under this section to the victim (as defined in IC 35-31.5-2-
        348) of the crime for which the convicted person is serving the
        sentence.
        (d) The court may suspend a sentence for a felony under this section
        only if suspension is permitted under IC 35-50-2-2.
        (e) The court may deny a request to suspend or reduce a sentence
        under this section without making written findings and conclusions.

Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015   Page 7 of 10
               (f) Notwithstanding subsections (a) and (b), the court is not required to
               conduct a hearing before reducing or suspending a sentence if:
                        (1) the prosecuting attorney has filed with the court an
                        agreement of the reduction or suspension of the sentence;
                        and
                        (2) the convicted person has filed with the court a waiver
                        of the right to be present when the order to reduce or
                        suspend the sentence is considered.


[11]   In addition, we have previously concluded that where the trial court accepted a

       plea agreement that contained a term of years and sentenced the defendant

       accordingly, the trial court does not have the authority to subsequently modify

       the defendant’s sentence. Robinett v. State, 798 N.E.2d 537, 539-40 (Ind. Ct.

       App. 2003). We explained the reasons for reaching this conclusion in detail in

       Robinett, stating:

               Nor did the trial court abuse its discretion by denying Robinett’s
               motion for modification of sentence. Robinett’s plea agreement
               provided he would receive a thirty-year sentence, and pursuant to his
               guilty plea, the trial court sentenced Robinett to thirty years. Our
               supreme court has explained why trial courts may not modify
               sentences in these circumstances:
                        Plea agreements between criminal defendants and
                        prosecutors are designed to induce the defendant to plead
                        guilty, typically in return for a promise of less than the
                        maximum sentence. As we observed in [State ex rel.
                        Goldsmith v. Superior Court, 275 Ind. 545, 419 N.E.2d 109
                        (1981)], a plea agreement is contractual in nature, binding
                        the defendant, the state and the trial court. See also
                        Thompson [v. State], 617 N.E.2d [576,] 578 [Ind. Ct. App.
                        (1993)]. The prosecutor and the defendant are the
                        contracting parties, and the trial court’s role with respect
                        to their agreement is described by statute: “If the court



       Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015   Page 8 of 10
                        accepts a plea agreement, it shall be bound by its terms.”
                        Ind. Code Ann. § 35-35-3-3(e) (West Supp. 1993).
                        As the statute suggests, the trial court may at its discretion
                        reject the plea agreement and try the case or consider any
                        new plea agreement the parties negotiate. Once it has
                        accepted a plea agreement recommending a specific
                        sentence, however, 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. Goldsmith, 275 Ind. at
                        551-52, 419 N.E.2d at 114.
                        Goldsmith and its progeny each uphold the principle 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). Because the
               court sentenced Robinett to the number of years provided in his plea
               agreement, the court had no authority to reduce that sentence. See id.


       Id. As such, we concluded that “[b]ecause the trial court had no authority to

       modify Robinett’s sentence, the trial court did not abuse its discretion when it

       denied his motion.” Id. at 540.

[12]   Considering the language contained in the version of Indiana Code section 35-

       38-1-17 that was in effect at the time Cox committed the underlying criminal

       offense together with our prior conclusion in Robinett, we conclude that the trial

       court did not abuse its discretion in determining that it did not have the



       Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-38 | July 7, 2015   Page 9 of 10
       authority to modify Cox’s previously agreed upon seven-year executed

       sentence. Accordingly, we affirm the judgment of the trial court.


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


       Vaidik, C.J., and Kirsch, J., concur.




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