                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                 Sep 04 2012, 9:41 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                      CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

CHAD D. WUERTZ                                  GREGORY F. ZOELLER
Wuertz Law Office, LLC                          Attorney General of Indiana
Indianapolis, Indiana
                                                MONIKA PREKOPA TALBOT
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES W. MANHART,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 16A04-1203-CR-131
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE DECATUR SUPERIOR COURT
                         The Honorable W. Michael Wilke, Judge
                         The Honorable Matthew D. Bailey, Judge
                             Cause No. 16D01-0711-FD-635



                                    September 4, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant James W. Manhart appeals from the trial court’s denial of a

petition to convert his convictions for Resisting Law Enforcement1 and Operating a

Vehicle While Intoxicated2 from class D felonies to class A misdemeanors pursuant to the

terms of his plea agreement. Specifically, Manhart contends that the trial court erred

when it concluded it lacked jurisdiction to do so because Manhart failed to file his

petition within three years from the date of his convictions. Concluding that the trial

court did not err and that, in any event, Manhart was not eligible for the conversion, we

affirm.

                                          FACTS

          On November 3, 2007, Manhart was stopped for speeding by Sergeant Steve

Barnes of the Greensburg Police Department in Decatur County.           Manhart initially

stopped, but he fled after handing Sergeant Barnes his state identification card. A chase

ensued, during which Manhart continued speeding and disregarded several traffic signals.

Ultimately, the chase ended when Manhart crashed his vehicle into a fence at a local

movie theater. After Manhart was arrested, a blood test determined that he had a blood

alcohol content of 0.18. The Decatur County Prosecuting Attorney charged Manhart with

resisting law enforcement as a class D felony, operating a vehicle while intoxicated as a

class A misdemeanor, and ten traffic violations, including speeding, two counts of

disregarding an automobile signal, and seven counts of disregarding a stop sign.

1
    Ind. Code § 35-44.1-3.
2
    Ind. Code § 9-30-5-3.

                                             2
        On November 13, 2008, the trial court held a guilty plea and sentencing hearing.

During the hearing, the court discussed the terms of an oral plea agreement to which

Manhart and the State both agreed.3 Pursuant to this agreement, Manhart pleaded guilty

to the charges of resisting law enforcement as a class D felony and operating a vehicle

while intoxicated as a class D felony,4 and the State dismissed the remaining traffic

infractions as well as a separately charged public intoxication count also pending against

Manhart.

        Pursuant to the “open plea,” both parties were free to present arguments regarding

an appropriate sentence.         Tr. p. 4.     The State recommended that Manhart receive

concurrent sentences of three years, with two years suspended to supervised probation.

Manhart presented evidence that he suffered from alcoholism but that, since his arrest, he

had voluntarily entered and completed a residential substance abuse treatment program.

He testified that, at the time of the hearing, he had been sober for one year. Manhart

asked that his convictions be entered as class A misdemeanors rather than class D

felonies and that he be permitted to serve his sentence on house arrest.


3
 No written plea agreement was admitted into evidence, and neither Manhart nor the State has a copy of a
written plea agreement in their respective files. We note that the court’s acceptance of the oral plea
agreement was in error, as Indiana Code section 35-35-3-3 requires plea agreements involving a
defendant’s plea of guilty to a felony charge to be in writing. However, as Manhart is attempting to rely
on the terms of the oral plea agreement in his argument for his convictions to be converted, he does not
challenge the validity of the plea agreement in his appeal.
4
 Although initially charged as a class A misdemeanor, the operating a vehicle while intoxicated count
appears to have been increased to a class D felony charge sometime before the guilty plea hearing
because Manhart had two prior convictions in Illinois for operating a vehicle while intoxicated within the
previous five years.

                                                    3
      The trial court sentenced Manhart to three years, with eight months to be served in

the Decatur County jail, four months on home detention, and two years on supervised

probation. The trial court advised Manhart of the conditions of his home detention and

probation, which included random screening for alcohol consumption and drug use, a

requirement that Manhart actively seek full-time employment, and a prohibition against

possessing firearms and deadly weapons. Then, the trial court stated:

      Now, what I’m going to allow you to do, Mr. Manhart, is that at the end of
      the three (3) year sentence, . . . based upon your behavior, between now and
      then, you will be . . . eligible, very possibly, to petition the Court and
      request that the felony conviction be reduced to a misdemeanor. But you
      can check with [your attorney] about . . . what you must do and what you
      must abide by in order to even qualify to file in Court a request that the
      felony conviction be reduced to a misdemeanor conviction. I’m going to
      allow you to do that with both charges. You will have felony convictions
      on these charges for the next three (3) years. But based upon your behavior
      and what you do or don’t do for the next three (3) years, you will have the .
      . . possible opportunity to petition the Court to have the felony convictions
      reduced to a misdemeanor. So, that’d be up to you as to whether or not you
      qualify in the next three year[s] . . . to have those felonies reduced. . . .

Tr. p. 44-45 (emphasis added).

      After the above explanation was given, the State consented “to the . . . agreed

reduction to a Class A misdemeanor, on the condition that [Manhart] comply with the

court ordered conditions.”   Id. at 46.   The State specifically required that Manhart

“successfully complete all conditions of probation” and “not commit any criminal

offenses” during his period of probation. Id. The trial court’s written judgment of

conviction stated, in part, “[p]ursuant to [Indiana code section] 35-38-1-1.5, upon

completion of sentence, defendant may request that judgment be converted to a

                                            4
conviction as a class A misdemeanor within three (3) years if the defendant fulfills the

conditions set by the court.” Appellant’s App. p. 30 (emphasis added).

       While on probation, Manhart failed a random drug screen by testing positive for

THC. On October 13, 2010, the State filed a petition to revoke Manhart’s suspended

sentence due to the failed screen. At a hearing on November 3, 2010, Manhart admitted

to violating his probation by smoking marijuana. The trial court extended Manhart’s

probation by five months but did not revoke Manhart’s suspended sentence. The order

extending Manhart’s probation also stated, “[a]ll conditions of probation and other

aspects of [Manhart’s judgment of conviction] remain in full force and effect.” Id. at 53.

       On January 3, 2012, the Decatur County Adult Probation Department filed a report

with the trial court stating that Manhart’s “probationary time period ended on the 31[st]

day of December, 2011.” Id. at 54. On January 9, 2012, Manhart requested a hearing on

his motion to have his convictions converted to misdemeanors. The State objected to the

conversion in writing, arguing that Manhart’s probation violation was also a violation of

the conditions for his eligibility to convert his convictions to misdemeanors.

       At a hearing held on February 20, 2012, the trial court heard argument from both

sides and took Manhart’s petition under advisement. On February 24, 2012, the trial

court entered its order denying Manhart’s petition to convert his convictions to

misdemeanors. The trial court cited to State v. Boyle, 947 N.E.2d 912 (Ind. 2011), as

support for its conclusion that Manhart was no longer eligible to have his sentence

converted to a misdemeanor under Indiana Code section 35-38-1-1.5 because more than

                                             5
three years had passed since his convictions were entered. 947 N.E.2d at 914. The trial

court made no findings regarding the effect of Manhart’s probation violation on his

eligibility to convert his felony convictions to misdemeanors. Manhart now appeals.

                              DISCUSSION AND DECISION

        Manhart contends that the trial court erred when it claimed it lacked jurisdiction to

convert his convictions from felonies to misdemeanors under Indiana Code section 35-

38-1-1.5. Specifically, Manhart contends that it was an abuse of discretion for the trial

court to deny his request for conversion on the ground that the request was untimely.

        We review a trial court’s interpretation of a statute de novo. Gardiner v. State, 928

N.E.2d 194, 196 (Ind. 2010). Indiana Code section 35-38-1-1.5, 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 Class A
        misdemeanor within three (3) 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 [Indiana
        Code section] 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).




                                              6
       (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). . . .

       (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).

       Typically, once a defendant is sentenced, the trial court’s jurisdiction over that

defendant ends. State v. Brunner, 947 N.E.2d 411, 416 (Ind. 2011), reh’g denied (citing

State ex rel. Abel v. Vigo Cir. Ct., 462 N.E.2d 61, 63 (Ind. 1984)). “After final judgment

a court retains only such continuing jurisdiction as is permitted by the judgment itself, or

as is given the court by statute or rule.” Marts v. State, 478 N.E.2d 63, 65 (Ind. 1985)

(quoting State ex rel. Kelley v. Marion Cnty. Crim. Ct., 269 Ind. 46, 47, 378 N.E.2d 833,

834 (1978)).

       The Indiana General Assembly has created some statutory exceptions that provide

authority for the trial court to exercise post-sentencing jurisdiction to convert convictions

or modify sentences in particular situations. See, e.g., Ind. Code § 35-50-2-7(b); I.C. §

35-38-1-17. One of these exceptions is Indiana Code section 35-38-1-1.5, under which

Manhart petitioned for the conversion of his sentence and under which he now appeals.

       As noted above, Manhart argues that the three-year time limit specified in the

statute should not act as a jurisdictional bar to the conversion of his sentence. However,

our Supreme Court has made clear on several occasions that where a statute allows for a

modification of a conviction or a sentence within a specified time frame, that time frame

                                             7
is jurisdictional. See Brunner, 947 N.E.2d at 416; Marts, 478 N.E.2d at 65; State v.

Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001).

       Specifically, in Fulkrod, the statutory time frame for a sentence modification

applied regardless of the trial court’s express reservation of the right to modify a sentence

in the order of judgment. 753 N.E.2d at 633. Indeed, our Supreme Court took issue with

the trial court “seeking to reserve a power that it did not possess.” Id.

       Notably, in Brunner and Boyle, our Supreme Court discussed the jurisdictional

merits of the three-year time frame in Indiana Code section 35-38-1-1.5.5 The defendants

in Brunner and Boyle were both sentenced prior to the enactment of this statute.

Accordingly, neither defendant was able to take advantage of its provisions.

Nevertheless, the point was made in each case that even if the defendants had been

eligible to reap the benefit of Indiana Code section 35-38-1-1.5 such that “the trial court

could enter a conviction as a misdemeanor, . . . [the conversion] must be entered within

three years of the entry of judgment. . . .” Boyle, 947 N.E.2d at 914 (citing Brunner, 947

N.E.2d at 417).

       In support of his position, Manhart relies on this Court’s decision in Troxell v.

State, 956 N.E.2d 164 (Ind. Ct. App. 2011), which held that it was an abuse of discretion

for a trial court to deny a defendant’s petition to convert his felony conviction to a

misdemeanor on the basis of the petition being time barred when his plea agreement

explicitly provided that he could not petition the court for the conversion until he
5
  Brunner and Boyle were both decided in 2011, several years after Manhart entered into his plea
agreement.
                                               8
successfully completed his sentence, which was three years suspended to probation. 956

N.E.2d at 166-67. Specifically, the panel based its decision on the doctrine of judicial

estoppel, which “prevents a party from assuming a position in a legal proceeding

inconsistent with one previously asserted.” Id. (citing Brightman v. State, 758 N.E.2d 41,

48 (Ind. 2001)). The Troxell Court reasoned that the State should not be permitted to

argue that the defendant was time barred from petitioning for the conversion when the

State was a party to the agreement that created the anomaly forbidding the defendant

from filing the petition until after the statutory deadline had passed. Id. at 167.

       Unlike the defendant in Troxell, however, Manhart was not necessarily precluded

from filing a timely petition to convert his convictions to misdemeanors under the terms

of his plea agreement. Rather, because Manhart served his sentence in a combination of

executed time, home detention, and probation, he would have been eligible to file his

petition to convert his felonies to misdemeanors several months before the three-year

statutory deadline passed.6 The State is correct in noting that Manhart’s inability “to

petition for modification prior to the end of the three-year period is his fault alone for

violating his probation.” Appellee’s Br. p. 6. Here, the State did not enter into an

agreement that allowed for conversion of Manhart’s convictions to misdemeanors while

at the same time preventing a timely petition for conversion from being filed. Thus,

Manhart’s reliance on Troxell is misplaced.



6
  While serving the executed and home detention portions of his sentence, Manhart was eligible to earn
credit time pursuant to Indiana Code sections 35-50-6-3 and 35-38-2.6-6.
                                                  9
       Concluding that the three-year time frame in Indiana Code section 35-38-1-1.5 is

jurisdictional and that Manhart does not fall within the narrow exception created by

Troxell, the trial court did not err in determining that it lacked jurisdiction over Manhart’s

petition.

       Even assuming, solely for argument’s sake, that this case fell within the exception

created by Troxell, our outcome would remain the same. More particularly, even if the

State was judicially estopped from objecting to Manhart’s petition based on it being

untimely, Manhart was still not eligible to have his convictions converted because he

violated the conditions of the agreement allowing for the conversion.

       As discussed above, Indiana Code section 35-38-1-1.5 allows for the conversion

of a class D felony to a class A misdemeanor within three years only if the court, the

prosecuting attorney, and the defendant all agree to the conditions, and the defendant

meets those conditions. Boyle, 947 N.E.2d at 914 (citing Brunner, 947 N.E.2d at 417).

One of the conditions for Manhart to be eligible to convert his convictions to

misdemeanors required that he “successfully complete all conditions of probation.” Tr.

p. 46. Manhart failed to satisfy this condition. By committing and admitting to a

probation violation, Manhart gave up any right he had to have the trial court convert his

felony convictions to misdemeanors.

       Finally, we reach Manhart’s assertion that “[r]educing Manhart’s conviction in

light of his rehabilitation is appropriate.” Appellant’s Br. p. 14. While we certainly

encourage Manhart to continue to make positive changes and maintain his sobriety, we

                                             10
note, as our Supreme Court did in Brunner, that “[a]lthough it may be equitable and

desirable for the legislature to give a trial court discretion in modifying a conviction . . .

for good behavior, . . . at this time the legislature has not given any such authority.”

Brunner, 947 N.E.2d at 417. Thus, Manhart’s argument on this basis must fail.

       In sum, we conclude that the trial court lacked jurisdiction to consider Manhart’s

petition and that, even if the trial court had properly exercised jurisdiction over the

petition, Manhart was not eligible to have his felony convictions converted to

misdemeanors. Accordingly, the trial court properly denied Manhart’s petition to convert

his convictions from class D felonies to class A misdemeanors.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




                                             11
