FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                GREGORY F. ZOELLER
Marion County Public Defender                Attorney General of Indiana
Indianapolis, Indiana
                                             KATHERINE MODESITT COOPER
                                             Deputy Attorney General
                                             Indianapolis, Indiana
                                                                           FILED
                                                                      Jan 25 2012, 8:54 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                               CLERK
                                                                           of the supreme court,
                                                                           court of appeals and
                                                                                  tax court




TIMOTHY LONG,                                )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 49A02-1105-CR-381
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Linda Brown, Judge
                         Cause No. 49F10-1006-CM-045499


                                  JANUARY 25, 2012

                             OPINION – FOR PUBLICATION


SHARPNACK, Senior Judge
                              STATEMENT OF THE CASE

       Timothy Long appeals his sentence for Class A misdemeanor operating a vehicle

while intoxicated, Ind. Code § 9-30-5-2(b) (2001), and being a habitual substance

offender, Ind. Code § 35-50-2-10 (2006). We affirm.

                                          ISSUE

       Long raises one issue, which we restate as: whether the trial judge erred by

rejecting the sentence imposed by the master commissioner who presided at the guilty

plea hearing.

                        FACTS AND PROCEDURAL HISTORY

       In May 2010, police officers observed Long driving unsafely on West 34th Street

in Indianapolis and stopped his vehicle. While speaking with Long, the officers detected

the odor of alcohol and observed that his speech was slurred, his eyes were bloodshot and

glassy, and his dexterity was poor. Long submitted to and failed three field sobriety tests.

A breath test indicated that he had an alcohol concentration equivalent to 0.25 grams of

alcohol per 210 liters of breath.

       The State charged Long with Class A misdemeanor operating a vehicle while

intoxicated, being a habitual substance offender, and two other offenses. The habitual

substance offender charge was based on a Class A misdemeanor operating a vehicle

while intoxicated conviction in 2004 and a Class D felony operating a vehicle while

intoxicated conviction in 2001.

       On February 14, 2011, Long pleaded guilty before Master Commissioner Teresa

Hall to Class A misdemeanor operating a vehicle while intoxicated and being a habitual

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substance offender in exchange for the State’s dismissal of the other two charges. The

written plea agreement provided for an executed one-year sentence for the Class A

misdemeanor and a three-year enhancement for being a habitual substance offender, for

an aggregate sentence of four years. The agreement left to the court’s discretion the

amount of the three-year enhancement that would be executed and Long’s placement for

the executed sentence. Appellant’s App. p. 33; Tr. p. 9. Master Commissioner Hall

accepted the plea agreement and set the matter for sentencing. At the sentencing hearing

on February 28, 2011, Master Commissioner Hall imposed a sentence of one year

executed in the Marion County Jail on the Class A misdemeanor enhanced by one year

executed in the Marion County Jail and two years executed in the Marion County

Community Corrections Work Release Program for being a habitual substance offender.

      On March 4, 2011, the presiding judge, Linda Brown, issued an order declining to

approve Master Commissioner Hall’s sentencing recommendation and resetting the

matter for sentencing. At the sentencing hearing on March 31, 2011, Judge Brown

imposed a sentence of one year executed in the Marion County Jail on the Class A

misdemeanor enhanced by two years executed in the Department of Correction and one

year executed in the Marion County Community Corrections Work Release Program.

Long now appeals.

                           DISCUSSION AND DECISION

      Long contends that Master Commissioner Hall was statutorily authorized to

impose his sentence and that Judge Brown thus erred by rejecting that sentence. Indiana

Code section 33-33-49-16(e) (2004) provides that a Marion County master commissioner

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“has the powers and duties prescribed for a magistrate under IC 33-23-5-5 through IC 33-

23-5-9.”    Indiana Code chapter 33-23-5 grants various powers to magistrates but

generally precludes them from entering a final appealable order. Boyer v. State, 883

N.E.2d 158, 160 (Ind. Ct. App. 2008); see Ind. Code § 33-23-5-8(2) (2008) (“Except as

provided under sections 5(14) and 9(b) of this chapter, a magistrate . . . may not enter a

final appealable order unless sitting as a judge pro tempore or a special judge.”). The

principal exception to this rule is Indiana Code section 33-23-5-9(b) (2004), which

provides:

       If a magistrate presides at a criminal trial, the magistrate may do the
       following:
              (1) Enter a final order.
              (2) Conduct a sentencing hearing.
              (3) Impose a sentence on a person convicted of a criminal offense.

See also Ind. Code § 33-23-5-5(14) (2008) (“A magistrate may . . . [e]nter a final order,

conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal

offense as described in section 9 of this chapter.”).

       Master Commissioner Hall did not preside at a criminal trial. Instead, Long

pleaded guilty, and Master Commissioner Hall presided at the guilty plea hearing. Long

cites Boyer v. State, 883 N.E.2d 158 (Ind. Ct. App. 2008), to support his assertion that

Master Commissioner Hall was statutorily authorized to sentence him and enter a final

order. In Boyer, however, the magistrate presided at the defendant’s criminal trial, id. at

160, and this Court held that Section 33-23-5-9(b) gives “a magistrate presiding over a

criminal trial the power to enter a final order and to enter a judgment of conviction,” id.



                                              4
at 161-62. The facts in Boyer are thus unlike the facts presented here, where Master

Commissioner Hall presided at a guilty plea hearing and not a criminal trial.

       Long also cites Ivy v. State, 947 N.E.2d 496 (Ind. Ct. App. 2011), for support. In

that case, the defendant pleaded guilty to Class B felony burglary and being a habitual

offender, and the State agreed to dismiss the remaining charges. The plea agreement set

a sixteen-year executed sentence and contained a provision in which the defendant agreed

that the sentence was appropriate and waived any request to modify his sentence. The

trial court sentenced the defendant to sixteen years in the Department of Correction but

noted that it would consider alternative placement for the last two years. The defendant

later filed a motion to modify his sentence in Marion Superior Court.           A master

commissioner denied the motion.       On appeal, the defendant argued that the master

commissioner did not have the authority to rule on his motion. The State responded that

the terms of the plea agreement precluded the defendant from seeking a modification of

his sentence.

       At the outset, this Court stated that it was affirming the denial of the defendant’s

motion to modify his sentence because the terms of the plea agreement precluded him

from seeking a modification. Id. at 497. In its analysis of the issues, this Court first

addressed the defendant’s argument and concluded that the master commissioner had the

power to enter a final judgment on the defendant’s motion to modify his sentence because

“magistrates, and therefore master commissioners, are authorized to enter final orders in

criminal trials, conduct sentencing hearings, and impose sentences on convicted persons.”

Id. at 498-99. We then concluded that the trial court’s incorrect advisement at the

                                            5
sentencing hearing had no effect on the defendant’s knowing and voluntary waiver of the

right to request a modification of his sentence. Id. at 500. We therefore affirmed the

denial of the defendant’s motion to modify his sentence.

       Long argues that Ivy establishes that a master commissioner can enter a final order

after a defendant has pleaded guilty. We disagree. This Court’s conclusions regarding

the master commissioner’s authority were unnecessary to the decision, which was on the

basis, announced at the outset, that the defendant could not challenge his sentence

pursuant to the terms of the plea agreement. Moreover, there is no indication that this

Court was asked to consider whether the legislature intended to treat guilty pleas in the

same manner as criminal trials with regard to the authority of magistrates and master

commissioners.1 Further, to the extent Ivy stands for the proposition argued by Long, we

respectfully disagree. The master commissioner did not preside at a criminal trial. In

fact, detrimental to Long’s own argument, there is no evidence that the master

commissioner even presided at the defendant’s guilty plea hearing. We would have

concluded that the master commissioner did not have the authority to enter a final order

on the defendant’s motion to modify his sentence.

       Long also argues that “[i]f the legislature has deemed master commissioners

competent to preside over criminal trials, pronounce the sentence, and enter final

judgment, then they are quite competent to do so at a guilty plea hearing.” Appellant’s

Reply Br. p. 4. This is not a judgment for us to make. Section 33-23-5-9(b) clearly states

1
 For the same reason, Long’s citations to Offringa v. State, 637 N.E.2d 190, 191 (Ind. Ct. App. 1994),
and In re Involuntary Commitment of A.M., No. 82A01-1101-MH-29, 2011 WL 4829666, at *2 n.1 (Ind.
Ct. App. Oct. 12, 2011), are unavailing.
                                                  6
that a magistrate, and thus a master commissioner, may enter a final order, conduct a

sentencing hearing, and impose a sentence if he or she has presided at a criminal trial.

We are not at liberty to conclude that the clear language of the statute indicating

“criminal trial” really means “criminal trial or guilty plea hearing.”

       Finally, Long presents us with a scenario in which a defendant decides to plead

guilty after a trial has commenced before a master commissioner and asks if the master

commissioner would have the authority to enter a final order after the guilty plea. These

are not the facts before us. On the facts before us, Master Commissioner Hall presided at

Long’s guilty plea hearing. Because she did not preside at a criminal trial, she did not

have the authority to enter a final judgment on Long’s sentence. Judge Brown therefore

did not err by rejecting Master Commissioner Hall’s sentence and imposing her own

sentence.

                                      CONCLUSION

       For the reasons stated above, we affirm Long’s sentence.

       Affirmed.

CRONE, J., and BRADFORD, J., concur.




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