      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be                                 Feb 09 2018, 9:41 am
      regarded as precedent or cited before any                                  CLERK
      court except for the purpose of establishing                           Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  APPELLEE PRO SE
      Curtis T. Hill, Jr.                                      Alan Jenkins
      Attorney General of Indiana                              Pendleton, Indiana
      Ellen H. Meilaender
      Supervising Deputy Attorney General
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                        February 9, 2018
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               41A04-1707-CR-1517
              v.                                               Appeal from the Johnson Superior
                                                               Court
      Alan Jenkins,                                            The Honorable Kevin M. Barton,
      Appellee-Petitioner.                                     Judge
                                                               Trial Court Cause No.
                                                               41D01-0402-FA-1



      Mathias, Judge.

[1]   The State of Indiana appeals the order of the Johnson Superior Court granting a

      petition filed by Alan Jenkins (“Jenkins”) seeking to modify his sentence. On


      Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018        Page 1 of 18
      appeal, the State argues that the applicable sentence modification statute does

      not authorize a court to modify a sentence imposed pursuant to a fixed-sentence

      agreement without an express reservation of such authority in the agreement.

      We agree with the State and therefore reverse the order of the trial court and

      remand with instructions to impose the agreed-upon sentence.


                                 Facts and Procedural History
[2]   As we briefly set forth in Jenkins’s direct appeal: “In the winter of 2002,

      Jenkins’s sister . . . and her twelve-year-old daughter, G.P., moved in with

      Jenkins. Shortly thereafter, Jenkins and G.P. began engaging in sexual

      intercourse and oral sex that was often accompanied with drug and alcohol

      use.” Jenkins v. State, No. 41A01-0502-CR-67, slip op. at 3 (Ind. Ct. App. June

      28, 2005) (“Jenkins I”). A more detailed description was given in our decision

      affirming the trial court’s partial denial of Jenkins’s subsequent petition for post-

      conviction relief:


              In the winter of 2002, Jenkins’s sister, S.P., and her twelve-year-
              old daughter, G.P., moved in with Jenkins. During the following
              two to three months, Jenkins’s relationship with G.P. changed
              from an “uncle/niece relationship,” to being friends, and then to
              a “boyfriend/girlfriend relationship.” Jenkins and G.P., who was
              in sixth grade at the time, regularly engaged in sexual intercourse
              and oral sex, activities that were often accompanied by alcohol
              and drug use. G.P. would steal liquor and cigarettes from
              drugstores, and Jenkins would sometimes drive her to the stores.
              The two spent a great deal of time together, often because G.P.
              was skipping school. At some point, the two “started doing
              ‘crack’ together.”


      Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 2 of 18
      Jenkins v. State, No. 41A01-1502-PC-77, 2015 WL 5970434, slip op. at 2–3 (Ind.

      Ct. App. Oct. 14, 2015) (“Jenkins II”) (citations omitted).


[3]   Following a jury trial in May 2004, Jenkins was convicted of two counts of

      Class A felony child molesting and determined to be a habitual offender. Id. at

      5. The jury acquitted Jenkins of another count of Class A felony child molesting

      and Class A felony contributing to the delinquency of a minor. Id. at 5–6. The

      trial court sentenced Jenkins to two terms of thirty-five years for the child

      molesting convictions and an additional thirty-year term for being a habitual

      offender, all to be served consecutively, for an aggregate sentence of 100 years.


[4]   On direct appeal, Jenkins claimed only that his sentence was improper because

      the trial court, when imposing sentence, relied on facts that were not found by

      the jury, in violation of his Sixth Amendment rights as outlined in the then-

      recent case of Blakely v. Washington, 542 U.S. 296 (2004). We rejected Jenkins’s

      Blakely claim, but we remanded with instructions that the trial court attach the

      habitual offender enhancement to one of the sentences imposed on the Class A

      felony convictions. Jenkins I, slip op. at 6.


[5]   In 2006, Jenkins filed a petition for post-conviction relief claiming ineffective

      assistance of trial counsel and ineffective assistance of appellate counsel. After

      numerous continuances and other delays, the post-conviction court finally held

      evidentiary hearings on Jenkins’s petition on November 28, 2012, May 29,

      2013, and September 17, 2013. On February 6, 2015, the post-conviction court

      entered an order denying Jenkins’s petition for the most part, but partially


      Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 3 of 18
      granting relief on grounds that Jenkins’s appellate counsel failed to inform him

      when the opinion of this court on direct appeal had been issued, thereby

      depriving Jenkins of the opportunity to seek transfer to the Indiana Supreme

      Court. The post-conviction court was of the opinion that there was a reasonable

      probability that our supreme court would have granted transfer and reduced

      Jenkins’s sentence under Appellate Rule 7(B). See Appellant’s App. p. 24.

      Accordingly, the post-conviction court determined that “the relief to which

      [Jenkins] is entitled for his Petition for Post-Conviction Relief is for correction

      of sentence. The issue is whether the aggregate sentence of one hundred (100)

      years executed is an appropriate sentence.” Id. at 25. The court then ordered

      Jenkins to be re-sentenced after a new sentencing hearing.


[6]   At the May 17, 2016 re-sentencing hearing, the State indicated that it and

      Jenkins’s counsel had reached an agreement as to what Jenkins’s sentence

      should be. Jenkins’s counsel confirmed this, stating, “[w]e do have a[n] agreed

      resolution as to what the appropriate sentence would have been at the time.”

      Re-sentencing Tr. p. 4. Jenkins’s counsel then continued:


              [Jenkins] was found guilty of Counts II and Counts III. In the
              original order those were to be run consecutively. Based on the
              agreement, those would . . . run concurrently and Count V which
              was the habitual offender enhancement which did attach to
              Count II by law is required to run consecutive, so aggregately his
              sentence would be 65 years[.]




      Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 4 of 18
Id. at 4–5. When asked by his counsel if this was his understanding, Jenkins

indicated in the affirmative. The trial court then confirmed that Jenkins

understood the agreement:


        Representation has been made by [the prosecutor] and [defense
        counsel] that they have entered into discussion and, with
        consultation with you, and it’s my understanding that the result
        of that discussion is that . . . they have agreed to change one
        word in the Sentencing Order and I believe that one word would
        be that the sentences upon the two Counts would run then
        concurrent as opposed to consecutive. So the word change would
        be to change consecutive to concurrent. [T]hereby reducing the
        sentence from a total of one hundred years to sixty-five years. [I]s
        that your understanding of the agreement that you have entered
        into with the State of Indiana?


Id. at 8. Jenkins again responded in the affirmative. The trial court then

questioned Jenkins and ensured that his agreement was his own free and

voluntary act and that nothing else had been said or done to coerce him into

entering into the agreement. The exchange between Jenkins and the court

continued:


        THE COURT: And do you understand that . . . if the sentence
        is then modified in accordance with that agreement effectively
        then the issue is then resolved and that is then the sentence that
        you will then, the final sentence so to speak?
        MR. JENKINS: Yes, I understand that.
        THE COURT: . . . [B]ut you understand that you have no
        obligation to accept that agreement and that if it is your desire
        you could ask that [defense counsel] proceed to re-sentencing
        today


Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 5 of 18
              MR. JENKINS: I understand that.
              THE COURT: And you understand that if that were the case,
              then obviously I would listen to what you, what [defense
              counsel] would have to say, what, what you would have to say
              and what the State’s contentions . . . , but in that event that
              decision would be mine and mine alone, you understand that?
              MR. JENKINS: Yes.
              THE COURT: And you understand that to that extent the
              agreement then takes away that discretion from me and basically you are
              . . . then bound by the terms of that agreement?
              MR. JENKINS: Yes.
              THE COURT:              Ok. With that all being said, is that what you
              wish to do?

              MR. JENKINS: Yes sir.


      Id. at 9–10 (emphasis added). The court then accepted the agreement and re-

      sentenced Jenkins according to the terms thereof, i.e., two concurrent terms of

      thirty-five years with a thirty-year habitual offender enhancement, for an

      aggregate term of sixty-five years.


[7]   On January 12, 2017, Jenkins filed a petition to modify his sentence. The State

      responded on April 17, 2017, objecting to Jenkins’s petition, arguing that

      Jenkins’s request required the approval of the prosecuting attorney and that

      Jenkins could not seek modification because he had entered into an agreement

      with the State regarding his sentence. The trial court held a hearing on Jenkins’s

      petition on April 19, 2017, and on August 10, 2017, entered an order granting

      Jenkins’s petition. In its order, the trial court reduced the concurrent sentences

      imposed on the Class A felony convictions from thirty to twenty years; the

      Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 6 of 18
      habitual offender enhancement remained at thirty years. Thus, Jenkins’s

      sentenced was reduced to an aggregate of fifty years. The State now appeals.1


                                            Standard of Review
[8]   The State argues that the trial court erred in granting Jenkins’s petition to

      modify his sentence. Generally, a trial court’s ruling on a defendant’s petition to

      modify is subject to review only for an abuse of discretion. Carr v. State, 33

      N.E.3d 358, 358 (Ind. Ct. App. 2015), trans. denied. Here, however, the State

      does not argue that the trial court abused its discretion in modifying Jenkins’s

      sentence; it argues that the trial court lacked authority to modify Jenkins’s

      sentence as a matter of law. Thus, the State claims that the trial court

      misinterpreted the sentence modification statute. Courts on appeal review issues

      of statutory interpretation de novo because they present questions of law. See

      State v. Harper, 8 N.E.3d 694, 696 (Ind. 2014) (because State claimed trial court

      lacked statutory authority to modify sentence as a matter of law, court’s review

      was de novo).


[9]   Our goal in construing a statute is to determine, give effect to, and implement

      the intent of our General Assembly. Alvey v. State, 10 N.E.3d 1031, 1033 (Ind.

      Ct. App. 2014), aff’d on reh’g, 15 N.E.3d 72. To determine the intent of the

      legislature, we examine the statute as a whole and also read sections of an act

      together so that no part is rendered meaningless if it can be harmonized with


      1
       The State has the authority to appeal the trial court’s order. See Hardley v. State, 905 N.E.2d 399, 404 (Ind.
      2009) (holding that the State has the authority to challenge erroneous sentences on appeal if “the issue is a
      pure question of law and does not require resort to evidence outside the appellate record.”).

      Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018              Page 7 of 18
       the remainder of the statute. Id. We presume that the legislature intended that

       the language used in the statute be applied logically and not to bring about an

       unjust or absurd result. Id. The best evidence of legislative intent is the language

       of the statute itself. Id. Thus, we must give all words their plain and ordinary

       meaning unless otherwise indicated by statute. Id. When the language in a

       statute is ambiguous or uncertain, we may look not only to the language, but

       also to the nature and subject matter of the act and the object to be

       accomplished thereby in ascertaining the legislative intent. Id. If, however, the

       statutory language is clear and unambiguous on its face, we will give such a

       statute its apparent and obvious meaning. Id.


                                The Sentence Modification Statute
[10]   A trial court generally has no authority over a defendant after sentencing unless

       such authority is conferred by statute. State v. Harper, 8 N.E.3d 694, 696 (Ind.

       2014). One such statute is the sentence modification statute, which gives trial

       courts authority under certain circumstances to modify a sentence after it is

       imposed. The sentence modification statute,2 with the most relevant parts

       emphasized, reads as follows:




       2
        The applicable version of the statute is that in effect at the time the petition to modify was filed. Moore v.
       State, 30 N.E.3d 1241, 1245–46 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018               Page 8 of 18
         (a) Notwithstanding IC 1-1-5.5-21,[3] this section applies to a
         person who:
                (1) commits an offense; or
                (2) is sentenced;
         before July 1, 2014.

         (b) This section does not apply to a credit restricted felon.

         (c) Except as provided in subsections (k) and (m), this section
         does not apply to a violent criminal.

         (d) As used in this section, “violent criminal” means a person
         convicted of any of the following offenses:
                                                    ***
                (10) Child molesting (IC 35-42-4-3).[4]
                                                    ***

         (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;




3
  Indiana Code section 1-1-5.5-21, is a “savings clause,” which provides that the provisions of the revised
criminal code do not apply to the “penalties incurred,” “crimes committed,” or “proceedings begun,” before
the effective date of the revised code. The 2015 amendments to the sentence modification statute added this
exception to the savings clause. See P.L. 164-2015 § 2.
4
  The full list of crimes set forth in this subsection includes; (1) murder; (2) attempted murder; (3) voluntary
manslaughter; (4) involuntary manslaughter; (5) reckless homicide; (6) aggravated battery; (7) kidnapping; (8)
rape; (9) criminal deviate conduct; (10) child molesting; (11) sexual misconduct with a minor as a Class A
felony, Class B felony, Level 1 felony, or Level 2 felony; (12) robbery as a Class A felony, Class B felony,
Level 1 felony, Level 2 felony, or Level 3 felony; (13) burglary as a Class A felony, Class B felony, Level 1
felony, Level 2 felony, Level 3 felony or Level 4 felony; and (14) unlawful possession of a firearm by a
serious violent felon. Ind. Code § 35-38-1-17(d).

Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018            Page 9 of 18
        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.

        (f) If the court sets a hearing on a petition under this section, the
        court must give notice to the prosecuting attorney and the
        prosecuting attorney must give notice to the victim (as defined in
        IC 35-31.5-2-348) of the crime for which the convicted person is
        serving the sentence.

        (g) The court may suspend a sentence for a felony under this
        section only if suspension is permitted under IC 35-50-2-2.2.

        (h) The court may deny a request to suspend or reduce a sentence
        under this section without making written findings and
        conclusions.

        (i) The court is not required to conduct a hearing before reducing
        or suspending a sentence under this section 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.

        (j) This subsection applies only to a convicted person who is not
        a violent criminal. A convicted person who is not a violent
        criminal may file a petition for sentence modification under this
        section:
              (1) not more than one (1) time in any three hundred sixty-
              five (365) day period; and
              (2) a maximum of two (2) times during any consecutive
              period of incarceration;
        without the consent of the prosecuting attorney.

Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 10 of 18
               (k) This subsection applies to a convicted person who is a
               violent criminal. A convicted person who is a violent criminal
               may, not later than three hundred sixty-five (365) days from
               the date of sentencing, file one (1) petition for sentence
               modification under this section without the consent of the
               prosecuting attorney. After the elapse of the three hundred
               sixty-five (365) day period, a violent criminal may not file a
               petition for sentence modification without the consent of the
               prosecuting attorney.

               (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.

               (m) Notwithstanding subsection (k), a person who commits an
               offense after June 30, 2014, and before May 15, 2015, may file
               one (1) petition for sentence modification without the consent
               of the prosecuting attorney, even if the person has previously
               filed a petition for sentence modification.


       Ind. Code § 35-38-1-17 (“Section 17”) (emphases added).


                                      Discussion and Decision
[11]   Pursuant to the explicit language of Subsection 17(c), the sentence modification

       statute does not apply to violent criminals “[e]xcept as provided in subsections

       (k) and (m).” Subsection 17(k) provides in relevant part:


               A convicted person who is a violent criminal may, not later than
               three hundred sixty-five (365) days from the date of sentencing,
               file one (1) petition for sentence modification under this section

       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 11 of 18
               without the consent of the prosecuting attorney. After the elapse
               of the three hundred sixty-five (365) day period, a violent
               criminal may not file a petition for sentence modification without
               the consent of the prosecuting attorney.


       And Subsection 17(m) provides:


               (m) Notwithstanding subsection (k), a person who commits an
               offense after June 30, 2014, and before May 15, 2015, may file
               one (1) petition for sentence modification without the consent of
               the prosecuting attorney, even if the person has previously filed a
               petition for sentence modification.


       These are the only portions of the sentence modification statute that are

       applicable to violent criminals. And Subsection 17(m) is inapplicable to Jenkins

       because he did not commit his offenses after June 30, 2014 and before May 15,

       2015.


[12]   Accordingly, the only portion of the sentence modification statute that is

       directly applicable to Jenkins is Subsection 17(k). This subsection states that a

       violent criminal such as Jenkins may, within 365 days from the date of

       sentencing, file a petition for sentence modification without the consent of the

       prosecuting attorney. Here, the date of Jenkins’s sentencing—or more

       accurately, re-sentencing—was May 17, 2016. Jenkins filed his petition for

       sentence modification on January 12, 2017, well within the 365-day limit. Thus,

       Jenkins was not required to obtain the consent of the prosecuting attorney

       before seeking sentence modification. The State does not argue to the contrary.




       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 12 of 18
[13]   The State does, however, argue that the trial court could not modify Jenkins’s

       sentence because, at his re-sentencing, Jenkins’s counsel and the State entered

       into an agreement that Jenkins would receive an aggregate sentence of sixty-five

       years. In support of its claim, the State refers to the language of Subsection

       17(e), which provides that the trial court may “reduce or suspend the sentence

       and impose a sentence that the court was authorized to impose at the time of

       sentencing.” (emphasis added). The State contends that the trial court was only

       authorized at the time of sentencing to impose the sentence agreed by the

       parties, and therefore the trial court could not modify Jenkins’s sentence to a

       lesser sentence. However, Subsection 17(e) is inapplicable because Jenkins is a

       violent criminal. Therefore, the trial court was not limited by the statutory

       language of Subsection 17(e) to impose only a sentence it was authorized to

       impose at sentencing.5




       5
         Recently, in State v. Lamaster, 84 N.E.3d 630 (Ind. Ct. App. 2017), a panel of this court held that, under
       Section 17(e), the trial court could not modify the sentence of a defendant whose plea agreement called for a
       fixed sentence because “[a]t the time of sentencing, the trial court was authorized to impose the sentence
       provided for in the plea agreement.” Id. at 634. After the opinion in Lamaster was issued, another panel of this
       court came to the opposite conclusion in State v. Stafford, 86 N.E.3d 190 (Ind. Ct. App. 2017), trans. granted,
       opinion vacated. The Stafford court held that the anti-waiver provisions of Subsection 17(l) meant that sentence
       modification was available even to a defendant whose plea agreement called for a fixed sentence. Id. at 193.
       The Stafford court further held that Subsection 17(e) did not limit the trial court’s authority to modify, because
       “as 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,” which includes the anti-waiver
       provisions of Subsection 17(l). As noted, however, our supreme court granted transfer in Stafford, thereby
       vacating that opinion. Although Stafford was vacated, another panel of this court recently came to the same
       conclusion. See Rodriguez v. State, No. 20A03-1704-CR-724, 2018 WL 360544, at *5 (Ind. Ct. App. Jan. 11,
       2018). The State asks that we follow Lamaster. We, however, do not think that Lamaster, Stafford, or Rodriquez
       are controlling here, because they do not involve a defendant, like Jenkins, deemed to be a “violent criminal”
       by Subsection 17(d). Because Jenkins is a violent criminal, the anti-waiver provision of Subsection 17(l) is
       inapplicable.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018             Page 13 of 18
[14]   But even before the language of Subsection 17(e) was added to the sentence

       modification statute, our courts had consistently held that a defendant who

       enters into a plea agreement that calls for a fixed sentence cannot later seek to

       modify his sentence under the sentence modification statute unless the plea

       agreement reserved to the court the right to modify.6 See Robinett v. State, 798

       N.E.2d 537, 540 (Ind. Ct. App. 2003) (citing Pannarale v. State, 638 N.E.2d

       1247, 1248 (Ind. 1994)), trans. denied. These cases did not rely on the language

       of the sentence modification statute, but on the law governing plea agreements.

       As explained in Pannarale:


                [A]fter 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 . . . unless
                the agreement contained a specific reservation of such authority
                for the trial judge.

                [State ex rel. Goldsmith v. Superior Court, 275 Ind. 545, 419 N.E.2d
                109 (1981)] 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.




       6
        Of course, this is not the case if the plea agreement gave the trial court discretion in sentencing. As
       explained in Pannarale v. State, 638 N.E.2d 1247, 1248–49 (Ind. 1994):
                While the trial court may not impose a sentence greater or lesser than that contained in the
                plea agreement, it does not lose any discretion it possessed at the time of initial sentencing
                when subsequent petitions for modification are presented. Rather, the court retains the
                authority to modify a sentence so long as the modified sentence would not have violated
                the plea agreement had it been the sentence originally imposed.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018             Page 14 of 18
       638 N.E.2d at 1248 (citing Goldsmith, 275 Ind. at 551–52, 419 N.E.2d at 114)

       (emphasis added); accord Robinett, 798 N.E.2d at 540; see also Schippers v. State,

       622 N.E.2d 993, 995 (Ind. Ct. App. 1993) (holding that defendant who entered

       into plea agreement calling for a fixed term had received the benefit of his

       bargain and that to permit reduction or modification of his sentence would

       deprive the State of its end of the bargain).


[15]   Although this line of reasoning may have been altered by subsequent

       amendments to the sentence modification statute, such as the anti-waiver

       provision contained in Subsection 17(l),7 that subsection is inapplicable to

       violent criminals such as Jenkins. Thus, the holdings of Robinette and Pannarale

       still control when it comes to modifying the sentences of those defined as

       “violent criminals” by the sentence modification statute.


[16]   Jenkins contends that he did not enter into a plea agreement calling for a

       specific term of years. He notes that the agreement mentioned by both his

       counsel and the State at the re-sentencing hearing was never reduced to writing

       before it was submitted to the trial court. Jenkins notes that Indiana Code

       section 35-35-3-3 requires that a prosecutor submit a plea agreement on a felony

       charge in writing to the trial court. See Shepperson v. State, 800 N.E.2d 658, 659

       (Ind. Ct. App. 2003) (noting the statutory requirement that plea agreements

       involving felony charges be reduced to writing); see also Petty v. State, 532

       N.E.2d 610, 612 (Ind. 1989) (holding that defendant’s acceptance of oral plea


       7
           See Rodriguez, 2018 WL 360544, at *5.


       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 15 of 18
       offer from the State did not constitute a binding plea agreement), overruled in

       part on other grounds by Whedon v. State, 765 N.E.2d 1276 (Ind. 2002).


[17]   However, in some situations, oral plea agreements are enforceable. For

       example, in Shepperson, the prosecution and the defendant reached an

       agreement whereby the defendant would plead guilty to one charge in each of

       two different causes and the remaining charges would be dropped; the parties

       also agreed to a two-year sentence. Id. at 659. Defense counsel informed the

       trial court of the terms of the oral agreement, and clarified that the sentences

       upon the two counts were to be served concurrently for an aggregate term of

       two years. The trial court accepted the plea, but at the subsequent sentencing

       hearing sentenced the defendant to a total of three years. On appeal, the

       defendant claimed that his sentence was in violation of the terms of his plea

       agreement. The State argued that the defendant’s agreement was an

       unenforceable oral agreement. On appeal, we held that the oral agreement was

       enforceable once the trial court accepted it, and therefore remanded with

       instructions that the trial court re-sentence the defendant pursuant to the terms

       of the agreement. Id. at 660.


[18]   The Shepperson court relied on Rogers v. State, 715 N.E.2d 428 (Ind. Ct. App.

       1999), which came to the same conclusion. In Rogers, the terms of the plea

       agreement were presented to the court orally by defense counsel. Specifically,

       the defendant agreed to plead guilty to burglary and sexual battery, and

       sentencing was left to the discretion of the trial court with the exception that

       any sentences were to be served concurrently. The trial court accepted the plea,

       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 16 of 18
       but, at sentencing, ordered the sentences to be served consecutively. On appeal,

       we reversed, noting that the trial court had accepted the plea and was therefore

       bound by the terms of the agreement that the sentences be served concurrently.

       Id. at 428.


[19]   These cases instruct us that although a plea agreement that has not been

       reduced to writing is not binding on the State vis-à-vis the defendant, once an

       oral agreement has been accepted by the trial court, it is binding on all parties,

       including the trial court. Thus, here, even though the agreement with regard to

       sentencing was never reduced to writing, it was presented by Jenkins’s own

       counsel to the trial court, the State indicated its agreement with the presented

       terms, and the trial court accepted the terms. Indeed, when it accepted the

       agreement, the trial court warned Jenkins that the agreement “takes away

       [sentencing] discretion from me and basically you are . . . then bound by the

       terms of that agreement.” Re-sentencing Tr. p. 10. Thus, the agreement was

       binding on all parties, including Jenkins.


[20]   Here, Jenkins entered into an agreement with the State that specifically called

       for a fixed sentence, i.e., two concurrent terms of thirty-five years with a thirty-

       year habitual offender enhancement. Under the controlling precedent of

       Pannarale and its progeny, Jenkins cannot now seek to modify his sentence

       unless the agreement reserved to the court such a right to modify. See 638

       N.E.2d at 1248; Robinett, 798 N.E.2d at 540. There is nothing in the record that

       would indicate that the terms of the agreement reached by the State and Jenkins

       included the reservation of such a right to the trial court. To the contrary, the

       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 17 of 18
       trial court informed Jenkins that, if it accepted the agreement, he would be

       bound by the terms thereof.


                                                 Conclusion
[21]   In summary, the only provision of the sentence modification statute applicable

       to Jenkins is Subsection 17(k), because he is defined by the statute as a “violent

       criminal.” As such, the anti-waiver provision contained in Subsection 17(l) is

       inapplicable. Moreover, Jenkins’s oral agreement regarding sentencing was

       binding once it was accepted by the trial court. Because Jenkins entered into an

       agreement calling for a fixed sentence, he cannot now seek to modify his

       sentence. We therefore reverse the order of the trial court modifying Jenkins’s

       sentence and remand with instructions to impose the sentence the parties agreed

       to, namely two concurrent thirty-five year sentences with a thirty-year habitual

       offender enhancement, for an aggregate term of sixty-five years.


[22]   Reversed and remanded.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018   Page 18 of 18
