Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:

GREGORY F. ZOELLER
                                                              FILED
                                                           Jul 05 2012, 9:12 am
Attorney General of Indiana

CYNTHIA L. PLOUGHE                                                 CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
Deputy Attorney General                                                 tax court



Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                    )
                                                     )
       Appellant-Respondent,                         )
                                                     )
               vs.                                   )    No. 66A03-1202-CR-75
                                                     )
DONNA STILTZ,                                        )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE PULASKI SUPERIOR COURT
                        The Honorable Patrick B. Blankenship, Judge
                              Cause No. 66D01-1005-CM-87
                              Cause No. 66D01-1103-CM-29



                                           July 5, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Donna Stiltz entered a plea agreement to resolve charges of invasion of privacy,

resisting law enforcement, battery on a law enforcement officer, disorderly conduct, and

violation of probation. The agreement stated that she would serve an aggregate sentence of

eight months’ incarceration. After serving one month, she submitted a letter to the trial court

requesting a modification of sentence, which was granted. On appeal, the State challenges

the authority of the trial court to modify her sentence. We reverse and remand.

                                 Facts and Procedural History


       On May 7, 2010, under cause number 66D01-1005-CM-87 (“Cause 87”), the State

charged Stiltz with class A misdemeanor operating a vehicle while intoxicated and class C

misdemeanor operating a vehicle with an ACE of .08 or more. On June 22, 2010, under

Cause 87, Stiltz pled guilty to class A misdemeanor operating a vehicle while intoxicated and

was sentenced to a twelve-month suspended term and placed on probation for twelve months.

On March 3, 2011, under cause number 66D01-1103-CM-29 (“Cause 29”), the State charged

Stiltz with the following: class A misdemeanor invasion of privacy, class A misdemeanor

resisting law enforcement, class A misdemeanor battery on a law enforcement officer, and

class B misdemeanor disorderly conduct. On April 1, 2011, under Cause 87, the State filed a

violation of probation notice.

       On August 9, 2011, the parties presented to the trial court a plea agreement that

resolved Cause 29 and the probation violation notice. Under the agreement, Stiltz pled guilty

to class A misdemeanor invasion of privacy and class A misdemeanor battery on a law

                                              2
enforcement officer and admitted to the probation violation. The parties agreed that Stiltz

would serve an eight-month executed sentence without suspension. The agreement also

stated that the “defendant understands and waives the right to petition the Court for

modification of sentence pursuant to I.C. 35-38-1-17 or pursuant to any other basis ….”

Appellant’s App. at 25. The court accepted the plea agreement and ordered Stiltz to begin

serving her sentence on September 6, 2011.

       On September 7, 2011, the court received notice that Stiltz did not report to begin

serving her sentence. As a result, the court issued a warrant for her arrest. The warrant was

served on December 19, 2011. On January 10, 2012, Stiltz submitted a letter to the court

requesting a modification of her sentence to care for her ill son. At a hearing on January 17,

2012, over the State’s objection, the trial court granted the modification and reduced her

sentence to time served. The State appealed. On April 4, 2012, the State filed a notice with

this Court indicating that it had unsuccessfully attempted to serve notice on Stiltz regarding

its appeal.

                                  Discussion and Decision

       On appeal, the State challenges the trial court’s authority to modify Stiltz’s sentence.

Stiltz did not respond to the State’s allegations on appeal, so we must review the State’s

claim for prima facie error. Buchanan v. State, 956 N.E.2d 124, 127 (Ind. Ct. App. 2011).

“Prima facie means at first sight, on first appearance, or on the face of it.” Id. (quoting Cox

v. State, 780 N.E.2d 1150, 1162 (Ind. Ct. App. 2002)).

       This is not a case of first impression. Our supreme court has explained:


                                              3
        [A] plea agreement is contractual in nature, binding the defendant, the state
        and the trial court. The prosecutor and the defendant are the contracting
        parties, and the trial court’s role with respect to their agreement is described by
        statute: “If the court accepts the plea agreement, it shall be bound by its terms.”
        Ind. Code § 35-35-3-3(e) (West Supp. 1993).

               As the statute suggests, the trial court may at its discretion reject the
        plea agreement and try the case or consider any new plea agreement the parties
        negotiate. Once it has accepted a plea agreement recommending a specific
        sentence, however, the terms of the agreement constrain the discretion the
        court would otherwise employ in sentencing. Even after 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, such as under Ind. Code § 35-38-1-23 [now Indiana Code Section 35-
        38-1-171] for “shock probation,” unless the agreement contained a specific
        reservation of such authority for the trial judge. [State ex rel. Goldsmith v.
        Marion Cnty. Super. Ct., 275 Ind. 545, 552, 419 N.E.2d 109, 114 (1981).]

               Goldsmith 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.




        1
            Indiana Code Section 35-38-1-17 provides:

                  (a) Within three hundred sixty-five (365) days after:

                  (1) a convicted person begins serving the person’s sentence;

                  (2) a hearing is held:

                          (A) at which the convicted person is present; and

                          (B) of which the prosecuting attorney has been notified; and

                  (3) 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. The court must incorporate its reasons in the record.”

The statute was not the basis for Stiltz’s request for modification or the trial court’s rationale for granting the
modification.


                                                        4
Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994) (citation and quotation marks

omitted).

       Here Stiltz’s plea agreement specified a total executed sentence of eight months.

Stiltz had served only one month of her sentence. Both the plea agreement and the trial

court’s order specifically prohibited the suspension of any part of the sentence, and the plea

agreement prohibited Stiltz from seeking modification of her sentence pursuant to Indiana

Code Section 35-38-1-17 or any other basis. The plea agreement contained no provisions

allowing the trial court to modify the terms of the agreement once the agreement was

accepted. The trial court accepted the terms of the agreement and must be bound by those

terms. Although we empathize with the trial court’s rationale for granting Stiltz’s request for

sentence modification, the law is settled on the issue. Accordingly, we conclude that the

State has shown prima facie error. Therefore, we reverse and remand with instructions to

reinstate Stiltz’s sentence in accordance with the plea agreement.

       Reversed and remanded.

VAIDIK, J., and BRADFORD, J., concur.




                                              5
