MEMORANDUM DECISION
                                                                    Dec 22 2015, 9:04 am

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.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
James W. Hamilton                                       Gregory F. Zoeller
Pendleton, Indiana                                      Attorney General of Indiana

                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James W. Hamilton,                                      December 22, 2015
Appellant-Petitioner,                                   Court of Appeals Cause No.
                                                        32A01-1508-CR-1201
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Mark A. Smith,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        32D04-0909-FA-7



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015   Page 1 of 7
                                             Case Summary
[1]   James Hamilton appeals the trial court’s denial of his motion for modification

      of sentence. We affirm.


                                                     Issue
[2]   Hamilton raises two issues, which we consolidate and restate as whether the

      trial court properly denied his motion for modification of sentence.


                                                     Facts
[3]   In September 2009, the State charged Hamilton with two counts of Class A

      felony dealing in cocaine or a narcotic drug, Class C felony dealing in a

      Schedule IV controlled substance, two counts of Class C felony possession of

      cocaine or a narcotic drug, and Class D felony possession of a Schedule IV

      controlled substance. In May 2011, Hamilton pled guilty to Class B felony

      dealing in cocaine or a narcotic drug, and the State dismissed the remaining

      charges. The plea agreement provided for a sentence of 7,300 days with 5,110

      days suspended, fourteen days of credit, 2,190 days served on work release, and

      4,010 days of probation. The plea agreement also provided: “Upon any

      probation violation of any kind, Mr. Hamilton must serve the entire suspended

      sentence of 5,110 days at the Indiana Department of Corrections (not work

      release or home detention). Mr. Hamilton may not petition the court for early

      release of probation.” Appellant’s Br. p. 13.


[4]   After only a couple weeks on work release, Hamilton tested positive for cocaine

      and tried to bribe a correctional officer to “pull” the screen. Hamilton v. State,
      Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015   Page 2 of 7
      No. 32A05-1110-CR-599, slip op. at 3 (Ind. Ct. App. July 16, 2012). The trial

      court revoked Hamilton’s placement in work release, revoked his probation,

      and ordered him to serve 7,272 days at the Indiana Department of Correction.

      Hamilton appealed the revocation of his probation, and we affirmed.1 See id. at

      11.


[5]   On May 14, 2015, Hamilton filed a petition for modification of his sentence.

      Hamilton argued, in part, that the provision in the plea agreement requiring the

      imposition of the entire suspended sentence upon any probation violation was a

      “waiver of his right to a sentence modification” and was invalid under the

      newly amended Indiana Code Section 35-38-1-17(1). The State objected to

      Hamilton’s petition to modify his sentence. After a hearing, the trial court

      denied Hamilton’s petition. The trial court concluded:

               The Court, having considered the evidence and arguments does
               now find that the Defendant’s request to modify his sentence
               should be denied. To be sure, it seems as if the Defendant has
               been active in taking steps to improve his self while incarcerated.
               For this he is to be commended. However, even taking these
               things into account, the Defendant has received some benefit
               already by virtue of the 5-month time cut he received.
               Additionally, the Defendant has only served about 21% of the
               executed portion of his sentence taking into account his time cut.




      1
       Hamilton also filed a petition for post-conviction relief challenging his guilty plea, claiming prosecutorial
      misconduct, and arguing that his trial counsel and appellate counsel were ineffective. The post-conviction
      court denied the petition, and we affirmed the denial. Hamilton v. State, No. 32A01-1403-PC-128 (Ind. Ct.
      App. Dec. 16, 2014).

      Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015             Page 3 of 7
              Furthermore, the Court finds that the Defendant’s reliance on the
              newly amended I.C. § 35-38-1-17 is misplaced. The Defendant’s
              plea agreement does not contain an express waiver against
              sentence modification of the kind contemplated by the statute. A
              “waiver” is an intentional relinquishment of a known right.
              Here, the Defendant did not waive a right to modify, but instead
              agreed to serve an agreed sentence upon a violation. The
              provision in the plea agreement prohibiting the Defendant from
              seeking an early release from probation became moot once the
              Court revoked probation at the time of violation hearing.
              Moreover, even if I.C. § 35-38-1-17(1) is applicable, it’s clear the
              Indiana Legislature did not intend for the prohibition against
              waiver to be absolute. The express language of the statute makes
              clear that a finding of waiver of the right to modify may occur for
              any other reason.


[6]   App. p. 31. Hamilton filed a motion to reconsider, which the trial court also

      denied. Hamilton now appeals.


                                                  Analysis
[7]   Hamilton argues that the trial court abused its discretion by denying his petition

      for modification of sentence. “We review a trial court’s decision to modify a

      sentence only for abuse of discretion.” Gardiner v. State, 928 N.E.2d 194, 196

      (Ind. 2010). An abuse of discretion occurs if the court’s decision is clearly

      against the logic and effect of the facts and circumstances before the court.

      Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999).




      Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015   Page 4 of 7
[8]   Indiana Code Section 35-38-1-172 provides in part:


              (e)      At any time after:


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


                       (2)      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 and impose
                       a sentence that the court was authorized to impose at the
                       time of sentencing. The court must incorporate its reasons
                       in the record.


                                                     *****


              (l)      A person may not waive the right to sentence modification
                       under this section as part of a plea agreement. Any
                       purported waiver of the right to sentence modification
                       under this section in a plea agreement is invalid and
                       unenforceable as against public policy. This subsection
                       does not prohibit the finding of a waiver of the right to
                       sentence modification for any other reason, including
                       failure to comply with the provisions of this section.




      2
        Indiana Code Section 35-38-1-17 was amended effective July 1, 2014, to add the language of subsection (l).
      See P.L.158-2013, § 396 (eff. July 1, 2014); P.L.168-2014, § 58 (eff. July 1, 2014). The statute was then
      amended to apply to a person who commits an offense or is sentenced before July 1, 2014. See P.L.164-2015,
      § 2 (May 5, 2015).

      Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015         Page 5 of 7
[9]    According to Hamilton, the probation violation provision of his plea agreement

       violated Indiana Code Section 35-38-1-17(l). The plea agreement provided:

       “Upon any probation violation of any kind, Mr. Hamilton must serve the entire

       suspended sentence of 5110 days at the Indiana Department of Corrections (not

       work release or home detention). Mr. Hamilton may not petition the court for

       early release of probation.” Appellant’s Br. p. 13. Hamilton violated his

       probation, and the trial court sentenced him accordingly. When Hamilton filed

       his request for a sentence modification, the trial court concluded that the plea

       agreement provision was not invalidated by Indiana Code Section 35-38-1-17(l).


[10]   Our primary goal in interpreting statutes is to determine and give effect to the

       Legislature’s intent. Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012). The best

       evidence of that intent is a statute’s text. Id. The first step is therefore to decide

       whether the Legislature has spoken clearly and unambiguously on the point in

       question. Id. When a statute is clear and unambiguous, we must apply the

       plain and ordinary meaning of the language. Id. There is no need to resort to

       any other rules of statutory construction. Id. As a result, we need not delve

       into legislative history if no ambiguity exists. Id. But a statute is ambiguous

       when it admits of more than one reasonable interpretation. Id. In that case, we

       resort to the rules of statutory construction so as to give effect to the

       Legislature’s intent. Id. For example, we read the statute as a whole, avoiding

       excessive reliance on a strict, literal meaning or the selective reading of

       individual words. Id. In a criminal case, we construe an ambiguous statute in

       favor of the defendant. Id.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015   Page 6 of 7
[11]   The clear language of Indiana Code Section 35-38-1-17(l) prohibits only the

       waiver of the right to sentence modification as part of a plea agreement.

       Hamilton did not agree in his plea agreement to waive a right to sentence

       modification; rather, he agreed to serve a certain sentence upon a probation

       violation. The statute specifically “does not prohibit the finding of a waiver of

       the right to sentence modification for any other reason . . . .” I.C. § 35-38-1-

       17(l). Consequently, Hamilton’s argument fails.


[12]   Moreover, even if the provision of the plea agreement was invalid under

       Indiana Code Section 35-38-1-17(l), Hamilton was not guaranteed a

       modification of his sentence. The trial court commended Hamilton for taking

       classes to better himself. However, the trial court also noted that Hamilton had

       been awarded a five-month time cut, that he had a lengthy criminal history and

       a history of violating his probation, that he had five conduct violations between

       January 2012 and December 2014, and that he had served only twenty-one

       percent of the executed portion of his sentence. Hamilton has not shown that

       the trial court abused its discretion by denying his petition for modification of

       his sentence.


                                                 Conclusion
[13]   The trial court did not abuse its discretion by denying Hamilton’s petition for

       modification of his sentence. We affirm.


[14]   Affirmed.


       Robb, J., and Altice, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015   Page 7 of 7
