      MEMORANDUM DECISION                                                                 FILED
                                                                                    08/22/2017, 10:54 am
      Pursuant to Ind. Appellate Rule 65(D), this                                         CLERK
      Memorandum Decision shall not be regarded as                                    Indiana Supreme Court
                                                                                         Court of Appeals
      precedent or cited before any court except for the                                   and Tax Court

      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Curtis T. Hill, Jr.                                      Kerry L. Thompson
      Attorney General of Indiana                              Houston, Thompson & Lewis, PC
                                                               Scottsburg, Indiana
      Ellen H. Meilaender
      Deputy Attorney General
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                        August 22, 2017

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               72A01-1702-CR-227
              v.                                               Appeal from the Scott Circuit Court.
                                                               The Honorable Roger L. Duvall,
                                                               Senior Judge.
      Codee Lamaster,                                          Trial Court Cause No.
      Appellee-Defendant.                                      72C01-1402-FC-9




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Codee Lamaster’s plea agreement provided for potential sentence modification

      by the trial court without objection by the State upon Lamaster’s successful

      completion of the Purposeful Incarceration Program while serving his executed

      Court of Appeals of Indiana | Memorandum Decision 72A01-1702-CR-227| August 22, 2017              Page 1 of 8
      sentence in the Indiana Department of Correction. Lamaster was terminated

      from the program, but, nonetheless, requested sentence modification, which the

      trial court granted. The State argues that the trial court’s modification of

      Lamaster’s sentence violated the terms of the fixed plea agreement and was not

      otherwise authorized by statute. We reverse and remand.


                                                     Issue
[2]   We restate the issues presented as the following one: Whether the trial court’s

      order modifying Lamaster’s sentence was in violation of the terms of the plea

      agreement or merely a modification of the place of service of Lamaster’s

      sentence, a modification which was not foreclosed by the terms of the plea

      agreement and which was authorized by statute.


                                   Facts and Procedural History
[3]   Lamaster faced four felony counts for criminal activity committed in February

      2014 under the lower cause number. On January 19, 2016, Lamaster and the

      State entered into a plea agreement which provided that in exchange for
                                                                                      1
      Lamaster’s guilty plea to two counts of Class C felony forgery, the State would

      dismiss two other charges under the same cause number and charges pending

      against him in other cases.




      1
          Ind. Code § 35-43-5-2 (2006).


      Court of Appeals of Indiana | Memorandum Decision 72A01-1702-CR-227| August 22, 2017   Page 2 of 8
[4]   The specific terms of the plea agreement relevant to this appeal provide as

      follows:


              4. In exchange for this Plea, the State of Indiana and the
              Defendant shall recommend the following, and the parties agree
              that, if accepted by the Court, the Court shall be bound by the
              terms and conditions contained herein:
              a. On Count I in 72C01-1402-FC-9
              A sentence of SIX (6) YEARS to the Indiana Department of
              Corrections,[sic] TWO (2) YEARS of said sentence to be
              suspended, FOUR (4) YEARS of said sentence to be executed in
              the Indiana Department of Corrections,[sic] with credit for 70
              days actual with “good time” credit as of January 24, 2016.
              TWO (2) YEARS of said sentence to be served on supervised
              probation.
              b. On Count II in 72C01-1402-FC-9
              A sentence of SIX (6) YEARS to the Indiana Department of
              Corrections,[sic] TWO (2) YEARS of said sentence to be
              suspended, FOUR (4) YEARS of said sentence to be executed in
              the Indiana Department of Corrections,[sic] with credit for 70
              days actual with “good time” credit as of January 24, 2016.
              TWO (2) YEARS of said sentence to be served on supervised
              probation.
              c. With respect to both Counts I and II:
              - Counts to run CONCURRENTLY.
              - State agrees that the Court may recommend the defendant for
              PURPOSEFUL INCARCERATION through the Indiana
              Department of Corrections,[sic] and upon successful completion
              of that program, Defendant may petition the Court for
              modification of his sentence, and the Court may consider and
              grant the same. The State agrees not to object to modification if
              the program is completed without any conduct violations on the
              part of the Defendant. Further the State agrees to recommend
              that the Defendant serve no more than TWO (2) YEARS on
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              probation after his release from incarceration, although any
              executed sentence that is modified by the Court may be
              converted to suspended time and may exceed two (2) years.
              - The State agrees that, should the Defendant complete
              Purposeful Incarceration, and upon successful completion of
              probation without any revocations, conviction in this matter may
              be reduced to the lesser-included offense of CONVERSION as a
              Class A Misdemeanor.
      Appellant’s App. Vol. II, pp. 57-58.


[5]   On January 25, 2016, the trial court accepted the guilty plea, entered judgment

      of conviction, and sentenced Lamaster according to the terms of the plea

      agreement, including recommendation of expedited placement in the program.


[6]   In October 2016, Lamaster was warned with termination from the program for

      incidents involving his behavior and was referred back to orientation.


[7]   On December 14, 2016, Lamaster filed a petition to modify his sentence and for

      immediate release, alleging that he had successfully completed the program,

      and was entitled to total credit time of 394 actual days. Id. at 81-83. On

      December 16, 2016, the State filed an objection to Lamaster’s immediate

      release, alleging that after contacting Westville Correctional Facility, it had

      learned that Lamaster had not completed the program as required by the terms

      of the plea agreement. Id. at 85-87. The trial court requested a progress report

      from the Department of Correction and set the matter for a hearing.


[8]   On December 21, 2016, Lamaster tested positive for methamphetamine,

      received a conduct report for possession of a controlled substance and was


      Court of Appeals of Indiana | Memorandum Decision 72A01-1702-CR-227| August 22, 2017   Page 4 of 8
       terminated from the program due to failure to comply with the minimum

       standard of conduct required for participation. At the hearing on his petition,

       Lamaster admitted that he was terminated from the program after testing

       positive for methamphetamine.


[9]    After reviewing the report and hearing evidence, including Lamaster’s

       admission to being terminated from the program, the trial court found that

       Lamaster had not successfully completed the program. However, the trial court

       concluded that it retained the authority to modify Lamaster’s sentence, ordering

       Lamaster to serve 590 days–the balance of the executed sentence–through

       community corrections, finding that his support system justified placement in

       community corrections instead of the Department of Correction. This appeal

       ensued.


                                    Discussion and Decision
[10]   The question here is whether the trial court could modify Lamaster’s sentence

       despite Lamaster’s violation of the terms of the plea agreement or under the

       authority of Indiana Code section 35-38-1-17(e) (2016). We conclude that

       neither option supports the trial court’s order.


[11]   A plea agreement is contractual in nature, binding the defendant, the state, and

       the trial court. Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). Once a

       trial court accepts the plea agreement, the court is bound by its terms. Ind.

       Code § 35-35-3-3(3) (1987). Where a plea agreement recommending a specific



       Court of Appeals of Indiana | Memorandum Decision 72A01-1702-CR-227| August 22, 2017   Page 5 of 8
       sentence has been accepted by the trial court, the trial court loses the discretion

       it might otherwise exercise in sentencing. Pannarale, 638 N.E.2d at 1248.


[12]   Here, the State recognized in the plea agreement that the trial court could

       recommend placement in the program, and the State agreed that if Lamaster

       successfully completed the program without any conduct violations, it would

       not object if Lamaster sought a sentence modification. As Lamaster admitted

       and the trial court found, Lamaster did not successfully complete the program.

       Therefore, the trial court’s order is not supported by the terms of the plea

       agreement.


[13]   Instead, the trial court relied on Indiana Code section 35-38-1-17(e). Appellate

       courts review a trial court’s decision to modify a sentence only for an abuse of

       discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). Issues of

       statutory interpretation are reviewed de novo because they present pure

       questions of law. Id.


[14]   As a general rule, courts must sentence a convicted person under the statute in

       effect at the time the person committed the offense. Moore v. State, 30 N.E.3d

       1241, 1246 (Ind. Ct. App. 2015). However, in the context of sentence

       modification, the date on which the petition was filed is the critical date. Id. at

       1248.


[15]   The applicable statute provides in pertinent part as follows to a person who

       commits an offense or is sentenced prior to July 1, 2014:



       Court of Appeals of Indiana | Memorandum Decision 72A01-1702-CR-227| August 22, 2017   Page 6 of 8
               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.
[16]   The trial court partially complied with the directives of the statute by first

       obtaining a report from the department of correction and stating its reasons for

       the modification on the record––consent by the State was not required.

       However, modification under the statute is inappropriate because the trial court

       was not authorized to reduce or suspend the sentence for the purpose of

       imposing a sentence the court was authorized to impose at the time of sentencing.


[17]   At the time of sentencing, the trial court was authorized to impose the sentence

       provided for in the plea agreement. The plea agreement called for concurrent,

       executed sentences of four years in the Department of Correction with credit for

       seventy actual days and good time credit as of January 24, 2016. Placement on

       probation or a community corrections program is a matter of grace and a

       conditional liberty that is a favor, not a right. Cox v. State, 706 N.E.2d 547, 549

       (Ind. 1999). Lamaster explicitly agreed to executed sentences in the

       Department of Correction and to the conditions he needed to fulfill to be

       eligible for sentence modification. The trial court’s order is not supported by

       the clear language of the statute or the terms of the plea agreement accepted and

       imposed by the trial court.



       Court of Appeals of Indiana | Memorandum Decision 72A01-1702-CR-227| August 22, 2017   Page 7 of 8
                                                Conclusion
[18]   In light of the foregoing, we reverse the trial court’s order on sentencing

       modification and remand with instructions to deny Lamaster’s petition.


[19]   Reversed and remanded.


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




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