                                                                          FILED
                                                                     Oct 19 2017, 7:40 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                        Jason J. Pattison
Attorney General of Indiana                                Jenner, Pattison, Sutter &
                                                           Wynn, LLP
Ellen H. Meilaender
                                                           Madison, Indiana
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          October 19, 2017
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           39A04-1705-CR-930
        v.                                                 Appeal from the Jefferson Circuit
                                                           Court
Pebble Stafford,                                           The Honorable W. Gregory Coy,
Appellee-Petitioner                                        Special Judge
                                                           Trial Court Cause No.
                                                           39C01-1307-FB-696



Baker, Judge.




Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017                    Page 1 of 10
[1]   In 2013, Pebble Stafford pleaded guilty to three charges, including Class B

      felony dealing in a controlled substance. Her plea agreement purported to

      waive her right to seek later modification of her sentence. After the General

      Assembly amended the sentence modification statute in 2014, Stafford

      petitioned the trial court for a sentence modification. The trial court granted

      that motion, and the State now appeals. We affirm and remand with

      instructions.


                                                      Facts
[2]   On July 18, 2013, the State charged Stafford with Class B felony dealing in a

      controlled substance. Stafford was also facing two unrelated charges in two

      other separate cause numbers.


[3]   On June 10, 2014, Stafford entered into a plea agreement resolving all three

      cases. She agreed to plead guilty to Class B felony dealing in a controlled

      substance, Class B misdemeanor possession of substance to interfere with a

      screening test, and Class C felony battery. The agreement provided that she

      would receive consecutive sentences of six years in the Department of

      Correction (DOC) with none suspended for the Class B felony; thirty days in

      the Jefferson County Jail with none suspended for the Class B misdemeanor;

      and four years in the DOC with none suspended, with direct placement to

      community corrections for the Class C felony battery.


[4]   On January 30, 2017, Stafford filed a petition to modify her Class B felony

      sentence; the State objected to the petition. Following a hearing, the trial court

      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017   Page 2 of 10
granted Stafford’s petition on April 12, 2017. In relevant part, the trial court

found and held as follows:


        2.       The plea agreement was silent as to the right of the
                 defendant to seek a modification; nor did it preclude her
                 from doing so.


        3.       The Defendant has completed a therapeutic community
                 [program] for which she was given credit toward her
                 sentence . . . .


        4.       After completion of the CLIFF program the Defendant
                 served as a mentor in the program.


        5.       The Defendant also obtained a GED, completed a course
                 in Problem Solving, and took courses in building trades.


        6.       The Defendant’s plan upon release is to go to the Ruth
                 Haven halfway house, obtain a full time job, remain clean,
                 and continue her education at IVY Tech as a part time
                 student.


                                                  ***


        10.      This court finds that there is no purpose in requiring the
                 Defendant to remain in the DOC until her current release
                 date of August, 2019; she has completed multiple
                 programs while at DOC and no further programs or
                 treatment are available there which will avail the
                 Defendant of any further opportunity to improve herself or
                 her situation at DOC and has been rehabilitated to the
                 extent the DOC is able to do so.



Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017   Page 3 of 10
              11.      The Defendant can seek to become employed and
                       educated if released from imprisonment.


              12.      The Court finds that the remainder of the Defendant’s
                       sentence should be suspended to probation with
                       monitoring by the community corrections department.


                                                        ***


              IT IS THEREFORE ORDERED:


              1.       The Defendant shall be released from imprisonment
                       immediately.


              2.       The Defendant shall make an appointment with
                       Community Corrections as soon as possible; the court
                       recommends the least restrictive monitoring with random
                       drug screens at the discretion of Community Corrections.


              3.       Defendant shall be on supervised probation for a period of
                       three (3) years; after successful completion of one (1) year
                       probation she may [petition] for unsupervised probation.


      Appellant’s App. Vol. II p. 118-19. The State now appeals.


                                    Discussion and Decision
[5]   The State argues that the trial court erred by granting Stafford’s motion to

      modify her sentence and suspending the remainder of her sentence to

      probation. There are no disputed issues of fact involved in this appeal; instead,




      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017   Page 4 of 10
      we are faced with pure issues of law, to which we apply a de novo standard of

      review. E.g., Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013).


[6]   A plea agreement is contractual in nature, binding upon the defendant, the

      State, and the trial court. St. Clair v. State, 901 N.E.2d 490, 492 (Ind. 2009).

      Once a trial court accepts a plea agreement, it is bound by the terms of that

      agreement. Ind. Code § 35-35-3-3(e).


[7]   For many years, it was well established that a trial court had no authority to

      later modify a fixed plea sentence unless the plea agreement reserved to the

      court the right to engage in such a modification. E.g., Pannarale v. State, 638

      N.E.2d 1247, 1248 (Ind. 1994). In 2014, however, the General Assembly

      amended the statute regarding sentence modification, adding the following new

      provision:


               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.


      Ind. Code 35-38-1-17(l).1 This statute has explicit retroactive application to

      offenders who were convicted and sentenced before July 2014. I.C. § 35-38-1-




      1
        When first enacted, this section was codified as subsection -17(i); it is now codified as subsection -17(l) but
      is otherwise identical to the earliest version.

      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017                            Page 5 of 10
      17(a). The General Assembly also loosened other rules regarding sentence

      modification with these amendments, including the elimination of all time

      periods related to when a non-violent offender could seek a sentence

      modification and the express authorization of sentence modification without

      the consent of the prosecutor. I.C. § 35-38-1-17.


[8]   It is apparent that, by relaxing the rules regarding sentence modification, our

      General Assembly was guided by Article I, Section 18, of the Indiana

      Constitution, which provides that “[t]he penal code shall be founded on the

      principles of reformation, and not of vindictive justice.” In keeping with this

      philosophy is the legislature’s recognition of the public policy against a

      purported waiver in a plea agreement of a defendant’s ability to seek sentence

      modification.


[9]   The State focuses on the following section of the statute:


              (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;

                       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.




      Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017       Page 6 of 10
I.C. § 35-38-1-17(e) (emphasis added). According to the State, this provision

means that a trial court may not modify a sentence following a fixed sentence

plea agreement if the right to modify was not included in the agreement:


        [I]n a case involving a fixed-sentence plea, the only sentence that
        the court “was authorized to impose at the time of sentencing” is
        the precise sentence provided for in the plea agreement. Thus, by
        the plain language of the modification statute, a court does not
        have any authority to modify where it had no discretion at the
        time of the original imposition of sentence. . . . If a trial court
        had no authority to impose a particular sentencing term when it
        originally imposed sentence, then it has no authority to impose
        that term through a subsequent modification.


Appellant’s Br. p. 12 (internal citations omitted). And the State further argues

that subsection -17(l) does not provide the trial court with sentence modification

authority:


        [Subsection -17(l)] further provides that “[t]his subsection does
        not prohibit the finding of a waiver of the right to sentence
        modification for any other reason.” Thus, this subsection is only
        speaking to waiver provisions within a plea agreement that
        would remove the authority to modify that a court would
        otherwise possess under the terms of the agreement. It does not
        speak to any other way in which the right to seek a modification
        could otherwise be waived, such as by entering into an agreement
        to receive a specific sentence. . . . If the General Assembly had
        intended to . . . allow modifications of fixed-sentence pleas, it
        would have said so directly. Instead, the legislature included
        language allowing trial courts to find the right to seek a
        modification waived “for any other reason,” which would
        include the reason that the defendant bargained for and agreed
        that she would serve this specific sentence.


Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017   Page 7 of 10
       Id. at 13-14.


[10]   We cannot agree with the State’s tortured interpretation of the plain statutory

       language. First, 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. And the General Assembly has quite

       clearly stated that, as of July 2014, “[a] person may not waive the right to

       sentence modification under this section as part of a plea agreement.” I.C. § 35-

       38-1-17(l). Therefore, following the enactment of these statutory amendments,

       the legislature has declared that trial courts are not authorized to impose a

       sentence that purports to waive the defendant’s right to a later modification.


[11]   Second, while the State insists that subsection -17(l) does not allow

       modifications of fixed sentence plea agreements, we disagree. The General

       Assembly could easily have carved out an explicit exception for fixed sentence

       plea agreements, but it did not do so. Instead, it plainly stated that a person

       may not waive the right to sentence modification as part of a plea agreement—

       any plea agreement—and went a step further, cautioning that any such

       purported waiver is invalid, unenforceable, and against public policy. Id.


[12]   We acknowledge the State’s frustration that the import of this statute may mean

       that “the State often will not be able to receive the benefit of its bargain in a plea

       agreement, which will drastically undermine the ability of the system to resolve

       cases through such agreements.” Appellee’s Br. p. 12. But the statute says

       what it says, and we are bound to interpret and apply statutes in a way that


       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017   Page 8 of 10
       fulfills the legislature’s intent. Unless and until the General Assembly clarifies

       the statute at issue, it clearly and unambiguously states that offenders “may not

       waive the right to sentence modification . . . as part of a plea agreement.” I.C. §

       35-38-1-17(e).


[13]   In this case, the trial court explicitly found that Stafford has completed many

       programs while incarcerated, has a solid plan in place for her reentry into

       society, and has been rehabilitated to the extent it is possible to do so during her

       incarceration. Under these circumstances, the trial court did not err by granting

       Stafford’s motion to modify in this case.


[14]   The State also argues that even if the trial court had authority to modify

       Stafford’s sentence, the modified sentence that it imposed was illegal. The six-

       year sentence that she originally received under the plea agreement for the Class

       B felony dealing conviction was a minimum non-suspendible sentence under

       the sentencing law in effect at that time. Ind. Code §§ 35-50-2-5 (2013)

       (sentencing range for Class B felony was six to twenty years), -2(b)(1)

       (minimum sentence for a crime was mandatory non-suspendible when the

       person was convicted of a Class A or Class B felony and had a prior felony

       conviction). Here, Stafford was convicted of a Class B felony and has a prior

       felony conviction, so the minimum six-year sentence was non-suspendible.


[15]   The State is correct that none of Stafford’s six-year sentence may be suspended

       to probation. Stafford points out, however, that a defendant may be eligible for

       a direct placement in community corrections when she is serving a non-


       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017   Page 9 of 10
       suspendible sentence. Ind. Code ch. 35-38-2.6. The State insists that the plea

       agreement explicitly provided that she would serve her six-year term at the

       DOC, but as noted above, the trial court is authorized pursuant to Indiana

       Code section 35-38-1-17 to modify her sentence; such modification may include

       the manner in which the defendant’s term is to be served. Consequently, we

       remand this matter to the trial court to revise Stafford’s sentence with

       instructions to omit any suspension of the six-year term to probation and to

       determine whether a direct placement to community corrections would be

       appropriate in this case.


[16]   The judgment of the trial court is affirmed and remanded with instructions.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | October 19, 2017   Page 10 of 10
