                                                         FILED
                                                     Aug 02 2016, 5:59 am

                                                         CLERK
                                                     Indiana Supreme Court
                                                        Court of Appeals
                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                          Adam J. Sedia
Attorney General of Indiana                                 Rubino, Ruman, Crosmer & Polen
                                                            Dyer, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                           August 2, 2016
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            45A05-1507-CR-945
        v.                                                  Appeal from the Lake Superior
                                                            Court
Wallace Irvin Smith, III,                                   The Honorable Clarence D.
Appellee-Defendant.                                         Murray, Judge
                                                            Trial Court Cause No.
                                                            45G02-0002-CF-24



May, Judge.




Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016                Page 1 of 11
[1]   The State appeals the grant of Wallace Irvin Smith, III’s petition for alternative

      misdemeanor sentencing. The State presents two issues for our review, which

      we restate as:

                 1. Whether the trial court had authority to modify Smith’s
                 sentence under Ind. Code § 35-50-2-7(d) (2014); and


                 2. Whether the language of Smith’s plea agreement precluded
                 the trial court from modifying his conviction of Class D felony
                 theft to a Class A misdemeanor.


[2]   Ind. Code § 35-50-2-7(d) (2014) permits the trial court to modify Smith’s

      sentence and the language of Smith’s plea agreement did not preclude it. We

      affirm.


                                     Facts and Procedural History
[3]   On July 18, 2000, Smith agreed to plead guilty to Class D felony theft. 1 His

      plea agreement provided, among other things, that Smith would be “precluded

      from asking for Misdemeanor treatment in this cause[.]” (Appellant’s App. at

      8.) On October 31, 2000, the trial court accepted the agreement, entered a

      conviction of Class D felony theft, and sentenced Smith to one year probation.

      The court discharged Smith from probation on June 13, 2002.




      1
          Ind. Code § 35-43-4-2(a) (1998).


      Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016     Page 2 of 11
[4]   On May 26, 2015, Smith asked the trial court to convert his conviction of Class

      D felony theft to a Class A misdemeanor under Ind. Code § 35-50-2-7(d) (2014).

      Over the State’s objection, the trial court granted Smith’s petition, vacated his

      conviction of Class D felony theft, and entered the conviction as a Class A

      misdemeanor.


                                        Discussion and Decision
                          I. Application of Ind. Code § 35-50-2-7(d) (2014)


[5]   Ind. Code § 35-50-2-7(d) (2014) provides, in relevant part:

               [T]he sentencing court may convert a Class D felony conviction
               (for a crime committed before July 1, 2014) or a Level 6 felony
               conviction (for a crime committed after June 30, 2014) to a Class
               A misdemeanor conviction if, after receiving a verified petition as
               described in subsection (e) and after conducting a hearing of
               which the prosecuting attorney has been notified, the court
               makes the following findings: 2


               (1) The person is not a sex or violent offender (as defined in IC
               11-8-8-5).


               (2) The person was not convicted of a Class D felony (for a
               crime committed before July 1, 2014) or a Level 6 felony (for a




      2
        The parties stipulated Smith met the requirements to be set forth in the findings required by statute, but the
      trial court’s original order did not include any findings. In an Order issued June 3, 2016, we directed the trial
      court to issue findings accordingly. It did so on June 20, 2016. As the parties stipulated Smith met the
      requirements, we need not review the evidence supporting the court’s order.

      Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016                            Page 3 of 11
        crime committed after June 30, 2014) that resulted in bodily
        injury to another person.


        (3) The person has not been convicted of perjury under IC 35-
        44.1-2-1 (or IC 35-44-2-1 before its repeal) or official misconduct
        under IC 35-44.1-1-1 (or IC 35-44-1-2 before its repeal).


        (4) At least three (3) years have passed since the person:


                 (A) completed the person’s sentence; and


                 (B) satisfied any other obligation imposed on the person as
                 part of the sentence;


        for the Class D or Level 6 felony.


        (5) The person has not been convicted of a felony since the
        person:


                 (A) completed the person’s sentence; and


                 (B) satisfied any other obligation imposed on the person as
                 part of the sentence;


        for the Class D or Level 6 felony.


        (6) No criminal charges are pending against the person.


(Footnote added.) The State argues the trial court did not have the authority to

apply Ind. Code § 35-50-2-7(d) (2014) retroactively in order to modify Smith’s

conviction to a Class A misdemeanor. As the statutory language indicates the

Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016      Page 4 of 11
      legislature intended that section to apply retroactively, the trial court did not

      exceed its authority.


[6]   Our standard of review when interpreting statutes is well-settled:

                 A question of statutory interpretation is a matter of law to be
                 determined de novo. Leeth v. State, 868 N.E.2d 65, 67 (Ind. Ct.
                 App. 2007) (citing Maynard v. State, 859 N.E.2d 1272, 1274 (Ind.
                 Ct. App. 2007), trans. denied). We are not bound by the trial
                 court’s legal interpretation of a statute and need not give it any
                 deference. Id. We independently determine the statute’s
                 meaning and apply it to the facts before us, using the express
                 language of the statute and following the rules of statutory
                 construction. Id. “Where the language of the statute is clear and
                 unambiguous, there is nothing to construe; however where the
                 language is susceptible to more than one interpretation, the
                 statute must be construed to give effect to the legislature’s
                 intent.” Id. at 67-68. We presume that the legislature intended
                 the language to be applied logically and not to bring about an
                 unjust or absurd result. Id. at 68.


      Recker v. State, 904 N.E.2d 72, 26 (Ind. Ct. App. 2009), reh’g denied, trans. denied.

      “Statutes are to be given prospective effect only, unless the legislature

      unequivocally and unambiguously intended retrospective effect[.]” State v.

      Pelley, 828 N.E.2d 915, 919 (Ind. 2005).


[7]   Beginning in 1998, Ind. Code § 35-50-2-7(b) 3 provided the trial court could

      “enter judgment of conviction of a Class A misdemeanor and sentence




      3
          The 1998 and 2005 versions of Ind. Code § 35-50-2-7(b) contained the same language.


      Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016                  Page 5 of 11
      accordingly” if a person “has committed a Class D felony.” In State v. Brunner,

      our Indiana Supreme Court held, regarding that statutory language,

              the intent of the legislature in granting authority to the trial courts
              to reduce a Class D felony to a Class A misdemeanor was limited
              to the moment the trial court first entered its judgment of
              conviction and before the trial court announced its sentence. The
              Court of Appeals correctly ruled that the language of the statute
              itself described the specific timeframe codified for this action was
              after the finding of a Class D felony but before the
              pronouncement of a sentence, “the court may enter judgment of
              conviction . . . and sentence accordingly.” I.C. § 35-50-2-7(b)
              (emphasis added). The judgment of conviction is entered first,
              and then the sentence is handed down. The legislature has not
              granted the trial court the authority to modify the conviction at
              any time other than while delivering the sentence.


      947 N.E.2d 411, 416 (Ind. 2011), reh’g denied. The Brunner Court noted:

      “Although it may be equitable and desirable for the legislature to give a trial

      court discretion in modifying a conviction years later for good behavior, we

      recognize at this time the legislature has not given any such authority.” Id. at

      417.


[8]   In 2012, the legislature added subsection (c), which provided in relevant part:

              [T]he sentencing court may convert a Class D felony conviction
              to a Class A misdemeanor conviction if, after receiving a verified
              petition as described in subsection (d) and after conducting a
              hearing of which the prosecuting attorney has been notified, the
              court makes [certain findings.]




      Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016     Page 6 of 11
      Ind. Code § 35-50-2-7(c) (2012). When considering the meaning of that

      language, we determined: “It seems clear that the General Assembly has

      adopted a policy wherein trial courts can reward good behavior by removing

      the stigma of certain Class D felony convictions.” Alden v. State, 983 N.E.2d

      186, 189 (Ind. Ct. App. 2013), trans. denied. Thus, under the new statute, trial

      courts were permitted to modify convictions and sentences that had already

      been entered.


[9]   In 2014, when the legislature again amended the statute, it used language

      virtually identical to that in Ind. Code § 35-50-2-7(c) (2012), which we had

      interpreted in Alden. The only difference is additional language to include the

      new felony level structure enacted as part of the 2014 revision of the Indiana

      criminal code. Thus, the legislative intent is the same - to allow a person

      convicted of certain Class D felonies to petition the court, after sentencing, to

      convert the Class D felony to a Class A misdemeanor. See King v. Harris, 140

      Ind. App. 9, 19, 212 N.E.2d 387, 392 (1965) (“Adherence to administrative and

      judicial interpretations of legislative enactments without subsequent legislative

      action dealing specifically with the subject matter so interpreted raises the

      presumption of legislative acquiescence in said interpretations.”), reh’g denied.

      Because the legislature intended Ind. Code § 35-50-2-7(d) (2014) to apply

      retroactively, the trial court had authority to modify Smith’s sentence.




      Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016   Page 7 of 11
              II. Preclusion of Modification Based on Terms of Plea Agreement


[10]   Smith’s plea agreement provided: “As a part of this plea agreement [Smith]

       agrees that he will be precluded from asking for Misdemeanor [sic] treatment in

       this cause[.]” (Appellant’s App. at 8.) The State argues the clause waives

       Smith’s right to seek a sentence modification under Ind. Code § 35-50-2-7(d)

       (2014) because the terms of the plea agreement are binding. As the language of

       the plea agreement forecloses only those remedies known at the time the

       agreement was entered, the terms of the plea agreement did not preclude

       Smith’s sentence modification under Ind. Code § 35-50-2-7(d) (2014) because

       that section did not exist when the agreement was made.


[11]   Our standard of review of plea agreements is well-settled:

               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. As such, we will
               look to principles of contract law when construing plea
               agreements to determine what is reasonably due to the
               defendant.


               The primary goal of contract interpretation is to give effect to the
               parties’ intent. When the terms of a contract are clear and
               unambiguous, they are conclusive of that intent, and the court
               will not construe the contract or look to extrinsic evidence.
               Rather, we will merely apply the contractual provisions. Terms
               of a contract are not ambiguous merely because a controversy
               exists between the parties concerning the proper interpretation of
               terms. Instead, ambiguity will be found in a contract only if

       Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016   Page 8 of 11
               reasonable people would find the contract subject to more than
               one construction. We construe any contract ambiguity against
               the party who drafted it, which, in the case of plea agreements, is
               the State.


       Valenzuela v. State, 898 N.E.2d 480, 482-83 (Ind. Ct. App. 2008) (citations

       omitted), trans. denied. If a term or provision is ambiguous, “we will construe

       [it] to determine and give effect to the intent of the parties at the time they

       entered into the contract.” Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813

       (Ind. 2012) (quoting George S. May Int’l Co. v. King, 629 N.E.2d 257, 260 (Ind.

       Ct. App. 1994), trans. denied), reh’g denied.


[12]   One term of Smith’s plea agreement was: “As a part of this plea agreement the

       defendant agrees that he will be precluded from asking for Misdemeanor

       treatment in this cause.” (Appellant’s App. at 8.) The term “Misdemeanor

       treatment” is not defined, nor is a statute cited to explain the term. The parties

       disagree as to its meaning, and the trial court said, after hearing the arguments

       of both parties, “I think you’re both right here.” (Tr. at 9.) The term

       “Misdemeanor treatment” is ambiguous. See Niccum v. Niccum, 734 N.E.2d

       637, 6379 (Ind. Ct. App. 2000) (provision of settlement contract ambiguous

       because it was not expressed in clear terms). Thus, we consider the intent of the

       parties at the time they entered into the plea agreement. See Citimortgage, 975

       N.E.2d at 813 (if ambiguity exists, appellate court considers the intent of the

       parties at the time they entered the agreement).




       Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016    Page 9 of 11
[13]   In 2000, when Smith entered his plea agreement, the legislature had “not

       granted the trial court the authority to modify the conviction at any time other

       than while delivering the sentence.” Brunner, 947 N.E.2d at 416. Thus, the

       only “Misdemeanor treatment” available at the time of Smith’s plea agreement

       was to change his Class D felony conviction to a Class A misdemeanor during

       sentencing. 4


[14]   As a trial court could not have changed a Class D felony to a Class A

       misdemeanor after sentencing at the time the plea agreement was entered, the

       parties could not have contemplated the term “Misdemeanor treatment” could

       mean conversion after the original sentencing. See Ind. Code § 35-50-2-7(d)

       (enacted in 2014; similar language set forth in Ind. Code § 35-50-2-7(c) (2012));

       and see Ind. Code § 35-38-1-1.5 (enacted in 2003; allows trial court to convert

       Class D felony conviction to a Class A misdemeanor conviction under certain

       circumstances). Therefore, Smith’s plea agreement did not preclude converting

       his felony conviction to a misdemeanor at the time he petitioned the trial court.



                                                  Conclusion
[15]   The trial court had authority under Ind. Code § 35-50-2-7(d) (2014) to convert

       Smith’s felony conviction to a misdemeanor because the legislature intended




       4
         Other terms of the plea agreement support our determination “Misdemeanor treatment” referred to
       sentencing; the term is sandwiched between two other sentence-related provisions - that the parties were free
       to argue regarding the sentence and that the court would impose restitution.

       Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016                        Page 10 of 11
       such conversion could be done after sentencing. The terms of Smith’s plea

       agreement do not preclude the conversion because conversion after sentencing

       could not have been contemplated by the parties when they entered the

       agreement. Accordingly, we affirm.


[16]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1507-CR-945 | August 2, 2016   Page 11 of 11
