MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                         Dec 10 2019, 8:49 am
regarded as precedent or cited before any
court except for the purpose of establishing                                        CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
the defense of res judicata, collateral                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John A. Kindley                                         Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ian P.Y. Foxworthy,                                     December 10, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1457
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable Michael R. Rader,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        84D05-1708-F6-2557
                                                        84D05-1808-F5-3019



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1457 | December 10, 2019                Page 1 of 4
                                          Case Summary
[1]   Ian P.Y. Foxworthy (“Foxworthy”) challenges the sanction imposed for failing

      to report to Community Corrections. He contends—and the State agrees—the

      trial court erred by imposing a sanction not authorized by a plea agreement.


[2]   We reverse and remand.



                            Facts and Procedural History
[3]   In June 2018, Foxworthy was sentenced in Cause No. 84D05-1708-F6-2557.

      The sentence—provided for in a plea agreement—was for an aggregate sentence

      of five years, with one year suspended and four years on home detention

      supervised by Community Corrections. In July 2018, the State filed a petition

      to revoke the placement on home detention, alleging Foxworthy failed to timely

      report to Community Corrections. During the pendency of this petition, the

      State filed a second petition to revoke and, in a separate cause, charged

      Foxworthy with the criminal offense of Failure to Return to Lawful Detention.


[4]   Foxworthy entered a second plea agreement with the State. Under the second

      plea agreement, Foxworthy would plead guilty to the new offense, with that

      new sentence open for argument. As to the initial cause, Foxworthy would

      admit to a violation. Moreover, “placement on Defendant’s sentence of four

      (4) years shall be argued to the Court.” App. Vol. II at 70 (emphasis added).


[5]   The trial court held a hearing at which Foxworthy pleaded guilty and admitted

      to a violation, pursuant to the second plea agreement. The trial court accepted
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1457 | December 10, 2019   Page 2 of 4
      the plea and set the matter for sentencing. At an ensuing sentencing hearing,

      the court heard argument and “revoke[d] the balance of 5 years to be served in

      the Indiana Department of Correction.” Id. at 73 (emphasis added).


[6]   Foxworthy now appeals.



                                Discussion and Decision
[7]   “Trial courts enjoy considerable discretion in deciding whether to accept or

      reject a proposed plea agreement.” Rodriguez v. State, 129 N.E.3d 789, 794 (Ind.

      2019). However, “[i]f the court accepts a plea agreement, it shall be bound by

      its terms,” Ind. Code § 35-35-3-3(e)—i.e., a court “possesses only that degree of

      sentencing discretion provided in the [accepted] agreement,” Rodriguez, 129

      N.E.3d at 794 (quoting St. Clair v. State, 901 N.E.2d 490, 493 (Ind. 2009)).


[8]   Here, the court accepted the plea made pursuant to the second plea agreement.

      The court was therefore bound by the terms of the agreement. Those terms

      allowed for discretion in “placement on Defendant’s sentence of four (4) years”

      in the initial cause. App. Vol. II at 70. However, the agreement did not permit

      a sanction concerning the fifth year. Thus, the trial court erred by imposing a

      sanction not authorized by the plea agreement. To remedy this error, we could

      reverse and remand for resentencing. See, e.g., Jackson v. State, 968 N.E.2d 328,

      334 (Ind. Ct. App. 2012). However, from its remarks at sentencing, it is

      apparent that the court wished to impose the longest-possible executed sentence

      upon the violation. Tr. at 23 (“But I mean it’s clear to me . . . there’s no point


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1457 | December 10, 2019   Page 3 of 4
      in putting you . . . in Community Corrections. You’ll just, I mean your pattern

      is you . . . don’t comply.”). We therefore take the action that both Foxworthy

      and the State now request—that is, we reverse and remand with instructions to

      reduce the executed portion of the sentence imposed in Cause No. 84D05-1708-

      F6-2557 to four years, which is consistent with the terms of the second plea

      agreement.


[9]   Reversed and remanded.


      Kirsch, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1457 | December 10, 2019   Page 4 of 4
