FOR PUBLICATION
ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                              GREGORY F. ZOELLER
Marion County Public Defender Agency           Attorney General of Indiana

                                               IAN MCLEAN
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                                                        Mar 20 2014, 9:18 am

                             IN THE
                   COURT OF APPEALS OF INDIANA

KEVIN MOSS,                                    )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )     No. 49A02-1307-CR-618
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                   APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Michael S. Jensen, Magistrate Judge
                           Cause No. 49G20-1302-FC-6734


                                    March 20, 2014

                             OPINION - FOR PUBLICATION

DARDEN, Senior Judge
                               STATEMENT OF THE CASE

      In this discretionary interlocutory appeal, Kevin Moss challenges the trial court’s

denial of his motion to dismiss. We reverse and remand.

                                         ISSUE

      Moss raises one issue, which we restate as: whether the trial court erred in

denying his motion to dismiss the enhancement to a class C felony of his charge of class

A misdemeanor possession of a handgun without a license due to a prior felony

conviction that was later modified to a misdemeanor.

                       FACTS AND PROCEDURAL HISTORY

      In July 2012, Moss and the State signed a formal plea agreement in Lower Cause

Number 49F15-1112-FD-86565 (“FD-86565”). Moss agreed to plead guilty to theft as a

class D felony. In return, he was ordered to serve a one-year sentence on home detention

and to obey other conditions. The plea agreement also provided that Moss could petition

for alternative misdemeanor sentencing (“AMS”) “upon successful completion of

probation without any violations.” Appellant’s App. p. 58. The formal agreement further

permitted the trial court to enter a judgment of conviction that would permit “AMS

upfront” or “AMS open to argument.” Id. The parties did not select either of those

options on the printed form.

      Apparently, Moss successfully completed his term of home detention on January

20, 2013.   On January 22, 2013, Marion County Community Corrections issued a

discharge summary, asserting that he “completed all terms” of probation and was

discharged “by operation of law.” Id. at 59.

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       Subsequently, on January 29, 2013, Officer Larry Stargel of the Indianapolis

Metropolitan Police Department stopped a car for changing lanes without signaling. 1

Moss was the driver.        Stargel asked Moss to produce a driver’s license, and Moss

presented an Indiana identification card. He admitted to Stargel that his driver’s license

had been suspended.

       Stargel arrested Moss and conducted an inventory search of his car. He found a

handgun in the glove box. Moss admitted to Stargel that the gun belonged to him and

that his handgun permit had been revoked.

       On February 4, 2013, the State commenced this case by charging Moss with

carrying a handgun without a license, a class A misdemeanor, Ind. Code § 35-47-2-1

(2012), and driving while suspended, a class A misdemeanor, Ind. Code § 9-24-19-2

(2012). The State also filed a “Part II” to the handgun charge, asserting that the offense

was a class C felony due to Moss’s felony theft conviction in FD-86565. Appellant’s

App. p. 19.

       On April 4, 2013, Moss filed with the court in FD-86565 a motion for AMS. That

court granted Moss’s motion and entered a new judgment of conviction for theft as a

class A misdemeanor.

       Moss subsequently filed with the trial court in the instant case a motion to dismiss

the felony enhancement to his handgun charge. He asserted that there was no basis for




1
  As is common in interlocutory appeals, the record is not well-developed. We draw upon the probable
cause affidavit for the facts of Moss and Stargel’s encounter. As discussed below, per our standard of
review we take the facts as stated in the information to be true for purposes of this appeal.
                                                  3
the underlying felony enhancement because the predicate felony had been modified to a

misdemeanor.

       The court held a hearing on Moss’s motion to dismiss and denied it, noting: “At

the time of the alleged offense the defendant’s prior conviction for theft was a felony.

The fact that at some later time the conviction was ‘Modified’ to a Class A Misdemeanor

pursuant to IC 35-50-2-7 is irrelevant.” Id. at 14.

       Moss sought interlocutory review.       The trial court granted Moss’s request to

certify its order, and this Court’s motions panel accepted this appeal.

                             DISCUSSION AND DECISION

       A defendant may move to dismiss an indictment or information as a whole or in

part. Ind. Code § 35-34-1-8 (1981). Grounds for dismissal are as follows:

       (1) The indictment or information, or any count thereof, is defective under
       section 6 of this chapter.
       (2) Misjoinder of offenses or parties defendant, or duplicity of allegation in
       counts.
       (3) The grand jury proceeding was defective.
       (4) The indictment or information does not state the offense with sufficient
       certainty.
       (5) The facts stated do not constitute an offense.
       (6) The defendant has immunity with respect to the offense charged.
       (7) The prosecution is barred by reason of a previous prosecution.
       (8) The prosecution is untimely brought.
       (9) The defendant has been denied the right to a speedy trial.
       (10) There exists some jurisdictional impediment to conviction of the
       defendant for the offense charged.
       (11) Any other ground that is a basis for dismissal as a matter of law.

Ind. Code § 35-34-1-4 (1983).

       When a defendant files a motion to dismiss an information, the facts alleged in the

information are to be taken as true. Delagrange v. State, 951 N.E.2d 593, 594 (Ind. Ct.

                                             4
App. 2011), trans. denied. In general, we review a trial court’s denial of a motion to

dismiss for an abuse of discretion. Id. In this case, the parties do not dispute the facts

and are presenting a question of law. We apply a de novo standard of review to questions

of law. Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013).

        Moss argues that the C felony enhancement must be dismissed because he no

longer has an underlying predicate felony conviction in FD-86565. The State asserts that

the dispositive question is whether Moss had a prior felony conviction on the day he is

alleged to have committed the current crimes. Moss’s prior felony theft conviction was

still on his record on the day he was arrested, so the State concludes that the C felony

enhancement need not be dismissed.

        Indiana Code section 35-38-1-1.5 (2003) governs AMS. It provides, in relevant

part:

        (a) A court may enter judgment of conviction as a Class D felony with the
        express provision that the conviction will be converted to a conviction as a
        Class A misdemeanor within three years if the person fulfills certain
        conditions. A court may enter a judgment of conviction as a Class D felony
        with the express provision that the conviction will be converted to a
        conviction as a Class A misdemeanor only if the person pleads guilty to a
        Class D felony that qualifies for consideration as a Class A misdemeanor
        under IC 35–50–2–7, and the following conditions are met:

              (1) The prosecuting attorney consents.

              (2) The person agrees to the conditions set by the court.

        (b) For a judgment of conviction to be entered under subsection (a), the
        court, the prosecuting attorney, and the person must all agree to the
        conditions set by the court under subsection (a).




                                             5
       (c) The court is not required to convert a judgment of conviction entered as
       a Class D felony to a Class A misdemeanor if, after a hearing, the court
       finds:

              (1) the person has violated a condition set by the court under
              subsection (a); or

              (2) the period that the conditions set by the court under subsection
              (a) are in effect expires before the person successfully completes
              each condition.

       However, the court may not convert a judgment of conviction entered as a
       Class D felony to a Class A misdemeanor if the person commits a new
       offense before the conditions set by the court under subsection (a) expire.

       (d) The court shall enter judgment of conviction as a Class A misdemeanor
       if the person fulfills the conditions set by the court under subsection (a).

       We find guidance on this issue in Gardiner v. State, 928 N.E.2d 194 (Ind. 2010).

In that case, Gardiner pleaded guilty to possession of methamphetamine precursors as a

class D felony. The trial court sentenced her to one year, to be suspended and served on

probation. The plea agreement provided that if she successfully completed probation, the

State would not object to sentence modification.

       In a later case, the State charged Gardiner with A felony dealing in

methamphetamine. A jury convicted her, and at sentencing the court noted that her

sentence could not be suspended below twenty years because she had a prior unrelated

felony conviction. Gardiner went back to the prior court and requested a sentence

modification. That court granted her petition and entered a new judgment of conviction

as a class D felony.

       Next, Gardiner requested sentencing modification for her A felony conviction,

claiming that her sentence could be suspended below twenty years because her prior

                                            6
felony conviction had been vacated. The court denied Gardiner’s request, asserting that it

believed it was bound by conditions present at the time of sentencing. The court further

stated it would be willing to consider further suspending her sentence if it had the

authority to do so.

       Gardiner appealed, and our Supreme Court reversed.                   The Court noted that

Gardiner had successfully served her sentence for the D felony conviction when she

sought to modify that sentence; in essence, she was seeking to modify her felony

conviction. The Court further stated, “The entry of judgment of conviction upon the

misdemeanor offense constitutes a new and different judgment effectively vacating the

prior judgment.” Id. at 197. The penal consequences of a guilty finding are triggered

only by the court’s entry of a judgment of conviction. Id. (citing Carter v. State, 750

N.E.2d 778, 780-81 (Ind. 2001)).              Furthermore, the statute prohibiting sentence

modification below a certain minimum sentence if a defendant has a prior felony

conviction “speaks in the present tense,” and, after Gardiner’s prior conviction was

reduced to an A misdemeanor, she no longer had a prior felony conviction. Id. (citing

Ind. Code § 35-50-2-2(b)(1)). For these reasons, the Court concluded Gardiner no longer

had a prior felony conviction, and the trial court had discretion to suspend her sentence

below twenty years.

       This case has many parallels with Gardiner.                 Moss completed his term of

probation without any violations. 2 Furthermore, Indiana Code section 35-47-2-23 (1997),


2
 The State contends that Moss violated the terms of probation by committing the offenses at issue here.
However, Marion County Community Corrections issued its discharge report before Moss’s arrest. The
                                                  7
the statute that permits the crime of A misdemeanor possession of a handgun without a

license to be enhanced to a C felony, speaks in the present tense like the statute at issue in

Gardiner. After the court in FD-86565 reduced Moss’s D felony conviction to an A

misdemeanor, he, like Gardiner, no longer had a prior felony conviction.

        Furthermore, a plea agreement is a contract between the State and a defendant.

Wright v. State, 700 N.E.2d 1153, 1155 (Ind. Ct. App. 1998). Both the State and the

defendant bargain for and receive substantial benefits from the agreement. Id. Promises

which induce guilty pleas must be fulfilled in order to satisfy the voluntariness of the

guilty plea standard. Bethea v. State, 983 N.E.2d 1134, 1144 (Ind. 2013).

        In FD-86565, the State agreed that Moss’s class D felony conviction could be

modified to a class A misdemeanor if he complied with the terms and conditions of

probation, and subsequently filed a petition for modification with the court. The State did

not reserve the right to challenge Moss’s petition for AMS. It is undisputed that Moss

complied with the terms and conditions of probation during his period of home detention,

and the court granted his petition for AMS. To allow the State to continue to use the

prior felony conviction in FD-86565 against him here would deprive him of the benefit

for which he bargained and which the State accepted.

        The State, citing McClure v. State, 803 N.E.2d 210 (Ind. Ct. App. 2004), trans.

denied, argues that the enhancement need not be dismissed because Moss did have a D




report asserts that he “completed all terms” of probation and was discharged “by operation of law.”
Appellant’s App. p. 59. A court operates through its records, and the State does not point to any evidence
that Moss committed violations prior to the issuance of the report.
                                                    8
felony conviction on his record at the time he was arrested. We find the State’s argument

is misplaced.

      In McClure, a jury convicted the defendant of class C felony possession of a

handgun without a license. McClure had previously been convicted of class D felony

possession of marijuana. His plea agreement in the marijuana case provided that if he

completed probation, the conviction would be modified to a class A misdemeanor.

However, the record does not reflect that McClure successfully completed probation, and

he never demonstrated that the underlying class D felony conviction had been modified

to a class A misdemeanor. A panel of this Court concluded, “The only relevant fact with

respect to this issue is whether there was in fact a prior felony conviction in the last

fifteen years.” Id. at 215. The enhancement was appropriate because he still had a prior

felony conviction.

      Thus, we find that the McClure case is distinguishable from Moss’s case. The

evidence revealed that Moss completed his term of probation without any violations and

that he successfully obtained AMS modification in FD-86565. As in Gardiner, Moss’s

prior class D felony conviction no longer exists and has effectively been vacated, unlike

in McClure’s case where modification did not occur.

      Moss has carried his burden of proving error, and the C felony enhancement must

be dismissed for want of a predicate felony conviction.




                                            9
                                    CONCLUSION

      For the reasons stated above, we reverse the judgment of the trial court and

remand with instructions to grant Moss’s motion to dismiss the C felony enhancement to

his charge of possession of a handgun without a license.

      Reversed and remanded with instructions.

BAKER, J., and FRIEDLANDER, J., concur.




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