      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                             Jun 05 2017, 9:05 am
      court except for the purpose of establishing
                                                                                CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
      estoppel, or the law of the case.                                          and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Donald E.C. Leicht                                       Curtis T. Hill, Jr.
      Kokomo, Indiana                                          Attorney General of Indiana
                                                               Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Andrew Sparling,                                         June 5, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               34A02-1611-CR-2711
              v.                                               Appeal from the Howard Superior
                                                               Court
      State of Indiana,                                        The Honorable George A.
      Appellee-Plaintiff                                       Hopkins, Judge
                                                               Trial Court Cause No.
                                                               34D04-1604-F4-80



      Mathias, Judge.


[1]   Andrew Sparling (“Sparling”) pleaded guilty in Howard Superior Court to

      Level 4 felony burglary under the terms of a plea agreement with the State.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1611-CR-2711 | June 5, 2017           Page 1 of 8
      Sparling now claims the trial court failed to sentence him according to the

      agreement.

[2]   We reverse and remand.


                                  Facts and Procedural Posture

[3]   On the evening of April 21, 2016, Sparling was seen breaking into and robbing

      a home in Greentown, Indiana. Pockets flush with loot, Sparling attempted to

      flee but was quickly found and arrested by officers of the Greentown Police

      Department. On April 26, 2016, the State charged Sparling by information in

      Howard Superior Court with Level 4 felony burglary and Class C misdemeanor

      possession of paraphernalia.


[4]   Sparling is a young man with a history of property and drug crimes. At the time

      of this crime, he was severely dependent on methamphetamine. Sparling’s

      mother, herself a victim of Sparling’s past thefts, wrote the trial judge and

      earnestly pleaded for her son to be placed in a “program in prison called

      Therapeutic Community[,]1 . . . a bootcamp for substance abuse recovery.”




      1
       Therapeutic Community programs are part of “Purposeful Incarceration.” “Purposeful Incarceration” is a
      program instituted by the Department of Correction and our trial courts:
            In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with Indiana
            Court Systems called Purposeful Incarceration (P.I.). The Department works in collaboration
            with Judges who can sentence chemically addicted offenders and document that they will
            “consider a sentence modification” should the offender successfully complete an IDOC
            Therapeutic [C]ommunity. This supports the Department of Correction and the Judiciary to get
            addicted offenders the treatment that they need and work collaboratively to support their
            successful re-entry into society.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1611-CR-2711 | June 5, 2017           Page 2 of 8
      Appellant’s App. Vol. II, p. 39. On August 5, 2016, Sparling and the State

      submitted a plea agreement for the trial court’s acceptance or rejection. In

      relevant part the agreement provided,


               It is recommended that the Defendant be placed in a Therapeutic
               Community Program while incarcerated in the Indiana
               Department of Correction[]. Upon successful completion of said
               program, with no objection from the State, the Court will
               consider modifying the Defendant’s sentence, so as to reduce the
               total time of incarceration.


      Id. p. 42. The presentence investigation report noted Sparling’s wish to be

      placed in C.L.I.F.F. (“Clean Lifestyle Is Freedom Forever”), a Therapeutic

      Community program specially targeted to methamphetamine users. Appellant’s

      App. Vol. III, p. 8. The report recommended that the plea agreement be

      accepted.


[5]   At Sparling’s change of plea hearing on August 12, 2016, the court read the

      agreement aloud, including the portion quoted above, and asked whether

      Sparling understood it to be the entire agreement; Sparling said he did. Tr. p. 4.

      At Sparling’s sentencing hearing on September 23, 2016, the court began by

      announcing, “I am prepared to accept the recommendation” — that is, the plea

      agreement.2 Tr. p. 8. After establishing Sparling’s knowing and intelligent



      Purposeful Incarceration, Indiana Department of Correction, http://www.in.gov/idoc/2798.htm (last visited
      March 2, 2017); see also Marley v. State, 17 N.E.2d 335, 338 (Ind. Ct. App. 2014) (discussing same), trans.
      denied.
      2
       In the Howard County courts, plea agreements presented to the court are apparently styled
      “recommendations.” See Hunter v. State, 60 N.E.3d 284, 287–88 (Ind. Ct. App. 2016) (noting sua sponte “an

      Court of Appeals of Indiana | Memorandum Decision 34A02-1611-CR-2711 | June 5, 2017               Page 3 of 8
      waiver of his trial and appeal rights, the court imposed Sparling’s sentence,

      purportedly “[p]ursuant to the terms of the plea agreement.” Tr. p. 14.

[6]   The court noted,


              [The presentence investigation report] recommended that Mr.
              Sparling be allowed to attend the (inaudible) [sic] program. I
              don’t have any problems with that. I want to make it clear,
              though, I do not consider this therapeutic community. As I
              understand it, it’s a separate program.


      Tr. p. 15. The prosecutor responded, “Judge, I’m trying to figure out from

      [defense counsel], [but] we were kind of of the impression it may be part of the

      same program.” Id. The court concluded, “Well, I’m going to put it in the

      sentencing order that it’s not, in the court’s opinion, it is not community

      therapeutic.” Id.


[7]   On September 23, 2016, the court entered judgment of conviction against

      Sparling. The judgment order provided, “[The] Court recommends that

      Defendant be allowed to participate in CLIFF if participation is not deemed to

      be Therapeutic Community.” Appellant’s App. Vol. II, p. 45. The

      chronological case summary (“CCS”) noted, “As a specific order, any therapy

      done while incarcerated will not be considered to be therapeutic Community

      [sic] program.” Appellant’s App. Vol. II, p. 6. In the abstract of judgment




      unusual and concerning facet of this case” on appeal from Howard Circuit Court involving failure to
      recognize “recommendation of plea” as plea agreement); Appellant’s App. Vol. II, p. 41 (plea agreement
      styled “recommendation of plea agreement”).

      Court of Appeals of Indiana | Memorandum Decision 34A02-1611-CR-2711 | June 5, 2017            Page 4 of 8
       submitted to the Department of Correction, the field for “Purposeful

       Incarceration” read, “No.” Appellant’s App. Vol. III, p. 2.

[8]    On October 25, 2016, Sparling moved to correct error in the September 23,

       2016, judgment order:

               [Under the plea agreement,] the Defendant was to be
               recommended to be placed in a Therapeutic Community while
               incarcerated in the Indiana Department of Correction[].

               The [judgment order] states the “Court recommends that
               Defendant be allowed to participate in CLIFF if participation is
               not deemed to be Therapeutic Community.”

               Wherefore, the Defendant respectfully requests the court modify
               the [judgment order] to include the Defendant to be
               recommended to participate in a Therapeutic Community during
               his incarceration in the Indiana Department of Correction[].


       Appellant’s App. Vol. II, p. 48. The court summarily denied the motion on

       November 15, 2016, after no response was received from the State.

[9]    Sparling timely appealed, claiming the trial court improperly modified his plea

       agreement with the State by not recommending Therapeutic Community

       placement. We agree.


                                      Discussion and Decision

[10]   Plea agreements are contracts between an accused and the State, and we review

       them as such. Campbell v. State, 17 N.E.3d 1021, 1023 (Ind. Ct. App. 2014).

       “We interpret plea agreements with the primary goal of giving effect to the


       Court of Appeals of Indiana | Memorandum Decision 34A02-1611-CR-2711 | June 5, 2017   Page 5 of 8
       parties’ intent. Terms that are clear and unambiguous are conclusive of this

       intent; as such, the reviewing court must apply the contractual provisions” as

       they stand. Id. at 1024 (citation omitted).


[11]   Sparling and the State agree that the trial court did not have discretion to

       modify the plea agreement; it could only choose to reject it entirely or to accept

       it and enforce it according to its terms. Ind. Code §§ 35-35-4-3-3(b) (rejection),

       (e) (acceptance); Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004); Pannarale v. State,

       638 N.E.2d 1247, 1248 (Ind. 1994). “The court is not only bound to the specific

       charges and sentencing guidelines; once a plea is accepted, a court is bound by

       all the terms in the agreement which are within its legal power to control.” State

       v. Holloway, 980 N.E.2d 331, 335 (Ind. Ct. App. 2012) (original emphasis,

       quotations omitted) (quoting Reffett v. State, 571 N.E.2d 1227, 1230 (Ind. 1991)).


[12]   The State argues that, when the court said Sparling was recommended for

       C.L.I.F.F. participation “if participation is not deemed to be Therapeutic

       Community,” Appellant’s App. Vol. II, p. 45, what the court meant was,

       “[E]ven if CLIFF is not a Therapeutic Community Program, because that is

       what the parties agreed to, then Sparling should still be allowed to participate.”

       Appellee’s Br. at 7. That may have been what the court meant, but it is not

       what the court said. The court said Sparling should participate in C.L.I.F.F. “if

       [it] is not”—that is, on the condition that it is not—deemed to be a Therapeutic

       Community program. Appellant’s App. Vol. II, p. 45.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1611-CR-2711 | June 5, 2017   Page 6 of 8
[13]   Even if the State is correct about what the court meant, the court still erred. In

       the August 5, 2016, plea agreement, the parties agreed to “place[ment] in a

       Therapeutic Community,” Appellant’s App. Vol. II, p. 48, not placement in

       C.L.I.F.F. Thus, the trial court should not have recommended C.L.I.F.F.

       irrespective of whether it was a Therapeutic Community, but a Therapeutic

       Community irrespective of whether it was C.L.I.F.F.

[14]   The language of the judgment order notwithstanding, the CCS is clear: “As a

       specific order, any therapy done while incarcerated will not be considered to be

       therapeutic community program.” Appellant’s App. Vol. II, p. 6 (emphasis

       added). It is well settled “that the trial court speaks through its CCS . . . .” Beeler

       v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied; see also Young v.

       State, 765 N.E.2d 673, 678 n.6 (Ind. Ct. App. 2002) (encouraging trial courts to

       use CCS notations to explain entries because inter alia conducive to appellate

       review). Moreover, though Therapeutic Community participation falls under

       Purposeful Incarceration, see supra note 1, Appellant’s App. Vol. III, p. 8, in the

       abstract of judgment forwarded to the Department of Correction, the field for

       “Purposeful Incarceration” read, “No.” Appellant’s App. Vol. III, p. 2.


[15]   The difference to Sparling is extremely important. If he successfully completes

       the programming at a Therapeutic Community, he will be eligible for sentence

       modification. Appellant’s App. Vol. II, p. 48. This is the opportunity he

       bargained for; that bargain must be accepted and enforced, or rejected entirely.

       The trial court did not have discretion to accept the agreement and then modify

       its terms.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1611-CR-2711 | June 5, 2017   Page 7 of 8
                                                 Conclusion

[16]   The trial court improperly modified the plea agreement by refusing to

       recommend a Therapeutic Community program for Sparling. We vacate its

       September 23, 2016, judgment order and remand with instructions either to

       accept the August 5, 2016, plea agreement and enforce its terms, including

       recommending Sparling for Therapeutic Community treatment, or to reject it

       entirely.


[17]   Reversed and remanded.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1611-CR-2711 | June 5, 2017   Page 8 of 8
