MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be                                   Jan 30 2019, 8:04 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Horacio Lopez                                            Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Horacio Lopez,                                           January 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-786
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff.                                      Christofeno, Judge
                                                         Trial Court Cause No.
                                                         20C01-0907-FA-19



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019                 Page 1 of 10
                                             Case Summary
[1]   Horacio Lopez appeals the denial of his motion to modify his sentence, which

      was imposed pursuant to a fixed sentence plea agreement. We affirm.


                                                     Issue
[2]   Lopez raises two issues on appeal, which we consolidate and restate as:


              Whether the trial court erred in denying Lopez’s motion for
              sentence modification by enforcing the express terms of Lopez’s
              fixed sentence plea agreement, wherein Lopez waived his right to
              sentence modification until 2021.


                                                     Facts
[3]   On July 20, 2009, the State charged Lopez with six counts of dealing in cocaine

      or a narcotic, Class A felonies. In October 2009, Lopez entered into a fixed

      sentence plea agreement with the State. Lopez agreed to plead guilty to two

      counts of dealing cocaine, Class A felonies, and the State agreed to dismiss the

      remaining four counts. The plea agreement expressly provided: “The

      Defendant shall serve an executed sentence of thirty-five years at the Indiana

      Department of Correction. All other terms shall be left to the Court. The State

      grants the Defendant/Court jurisdiction (jurisdiction only) to consider

      modification with regard to time and placement during calendar year of 2021.”

      App. Vol. II p. 16. The trial court approved the plea agreement and imposed

      two, concurrent thirty-five-year sentences.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019   Page 2 of 10
[4]   On January 24, 2018, Lopez filed a motion for sentence modification. The

      Department of Correction submitted a progress report on February 12, 2018.

      On February 19, 2018, the trial court found that it lacked jurisdiction to modify

      Lopez’s sentence until 2021 and denied Lopez’s motion. Lopez now appeals.


                                                   Analysis
[5]   Lopez argues that the trial court erred in denying his motion for modification of

      sentence because Indiana Code Section 35-38-1-17 “plainly authorizes the

      modification of a ‘fixed’ or ‘agreed upon’ sentence.” Appellant’s Br. p. 12. We

      review a trial court’s decision regarding modification of a sentence for an abuse

      of discretion. Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015),

      trans. denied. An abuse of discretion occurs when the trial court’s decision is

      clearly against the logic and effect of the facts and circumstances before the

      court. Id.


[6]   Lopez argues that, by finding that the plea agreement precluded modification of

      his sentence until 2021, the trial court permitted a blanket waiver of his right to

      sentence modification in violation of Indiana Code Section 35-38-1-17. At issue

      here is the interplay between Indiana Code Section 35-35-3-3(e) and Indiana

      Code Section 35-38-1-17(l).


[7]   Indiana Code Section 35-35-3-3(e) states: “If the court accepts a plea agreement,

      [the court] shall be bound by its terms.” Berry v. State, 10 N.E.3d 1243, 1246

      (Ind. 2014); see Vaughn v. State, 982 N.E.2d 1071, 1073 (Ind. Ct. App. 2013)



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019   Page 3 of 10
      (“A plea agreement is contractual in nature, binding the defendant, the State

      and the trial court.”).


[8]   When Lopez filed his motion for sentence modification in January 2018,

      Indiana Code Section 35-38-1-17, which governs reduction or suspension of

      sentence, provided, in part, as follows:


              ...


              (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.


      I.C. § 35-38-1-17.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019   Page 4 of 10
[9]    Indiana Code Section 35-38-1-17 has undergone two noteworthy amendments

       in recent years. In 2014, our legislature amended Indiana Code Section 35-38-

       1-17 (“the 2014 amendment”) to add the following language, which is presently

       codified in Indiana Code Section 35-38-1-17(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.


       I.C. § 35-38-1-17(l); see I.C. § 35-38-1-17(i)(2014).


[10]   Subsequently, we applied the 2014 amendment in deciding the appeal in State v.

       Stafford, 86 N.E.3d 190 (Ind. Ct. App. 2017) (“Stafford I”), trans. granted.

       Stafford pleaded guilty pursuant to a fixed sentence plea agreement that

       purported to waive her right to sentence modification. Stafford subsequently

       moved for and was granted a sentence modification. In affirming the trial

       court’s judgment on appeal, we found that, “in light of our legislature’s 2014

       amendment to Indiana Code Section 35-38-1-17, Stafford did not waive her

       right to sentence modification by entering into a fixed plea agreement, and thus,

       the trial court was authorized to modify her sentence without approval of the

       prosecutor.” See State v. Stafford, No 39A04-1705-CR-930, slip. op. at p. 1 (Dec.

       27, 2018) (“Stafford II”).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019   Page 5 of 10
[11]   In the same vein, in Rodriguez v. State, 91 N.E.3d 1033 (Ind. Ct. App. 2018)

       (“Rodriguez I”), Rodriguez pleaded guilty pursuant to a fixed sentence plea

       agreement and agreed to serve a seventy-two-month term in the Department of

       Correction on work release. Subsequently, Rodriguez moved for sentence

       modification; he alleged family hardship from his incarceration and sought

       modification of his sentence to home detention. The trial court found that it

       lacked authority to modify Rodriguez’s sentence because the court was bound

       by Rodriguez’s agreement with the State to serve his sentence on work release

       and denied Rodriguez’s motion. We reversed on appeal and found that, in light

       of the 2014 amendment, modification of Rodriguez’s sentence was permissible.

       Senior Judge Rucker wrote a dissenting opinion, which we discuss below.


[12]   Our legislature responded by amending Indiana Code Section 35-38-1-17 (“the

       2018 amendment”), effective July 1, 2018. As amended, with the added

       language shown in italics, the statute provides as follows:


               (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. However, if the convicted person was sentenced under the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019   Page 6 of 10
               terms of a plea agreement, the court may not, without the consent of the
               prosecuting attorney, reduce or suspend the sentence and impose a
               sentence not authorized by the plea agreement. 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:


                        (1) have a court modify a sentence and impose a sentence not
                        authorized by the plea agreement, as described under subsection
                        (e); or


                        (2) sentence modification for any other reason, including
                        failure to comply with the provisions of this section.


       I.C. §§ 35-38-1-17(e), 35-38-1-17(l) (emphasis added).


[13]   Our supreme court granted transfer in Stafford I and remanded for our

       reconsideration in light of the 2018 amendment. On remand in Stafford II, we

       opined as follows:


               Through its amendment, the legislature made a definitive
               statement that trial courts are not authorized to modify sentences
               that were imposed by virtue of a plea agreement unless the
               agreement itself contemplated such a modification and/or the
               prosecuting attorney agrees to the modification. In other words,
               it is now clear that the sentencing parameters of a plea agreement

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019    Page 7 of 10
               continue to bind a trial court during subsequent modification
               proceedings.


       Stafford II, No. 39A04-1705-CR-930, slip. op. at p. 3; see I.C. § 35-35-3-3(e). The

       Stafford II panel, thus, reversed the trial court and remanded for reinstatement of

       Stafford’s original sentence. See Stafford II, No. 39A04-1705-CR-930, slip. op. at

       p. 4.


[14]   As in Stafford I, our supreme court granted transfer in Rodriguez I and remanded

       for our reconsideration in light of the legislature’s 2018 amendments to Indiana

       Code Section 35-38-1-17. On remand, we reaffirmed our holding and found

       that retroactive application to Rodriguez of the 2018 amendments would be

       fundamentally unfair and would violate the contract clause of the United States

       Constitution. See Rodriguez v. State, No. 20A03-1704-CR-724, slip. op. at pp. 7-8

       (Ind. Ct. App. Dec. 14, 2018) (“Rodriguez II”). Senior Judge Rucker dissented

       on the same grounds as in his Rodriguez I dissent.


[15]   For purposes of our analysis here, Senior Judge Rucker’s dissenting opinion in

       Rodriguez I is instructive. Senior Judge Rucker reasoned that Indiana Code

       Section 35-35-3-3(e) and Indiana Code Section 35-38-1-17(l) may be

       harmonized as follows:


               [T]he third sentence of Indiana Code [S]ection 35-38-1-17(l)
               makes clear that the statute “does not prohibit the finding of
               waiver of the right to sentence modification for any other reason.”
               This language is not in irreconcilable conflict with Indiana Code
               [S]ection 35-35-3-3(e) which declares “[i]f the court accepts a plea
               agreement, it shall be bound by its terms.” Id. * * * * *

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019   Page 8 of 10
               Here, the conflicting provisions of the two statutes may be
               harmonized in a way that gives effect to both. In particular, the
               trial court lacked the authority to modify Rodriguez’s sentence
               from work release to home detention not because of a “waive[r]
               to the right of sentence modification . . . as part of a plea
               agreement.” Ind. Code § 35-38-1-17(l). Instead, the trial court
               lacked such authority for a wholly different reason- or in the
               language of the statute[-] “for any other reason”—namely:
               because of the bargain Rodriguez struck with the State of Indiana
               that his sentence would be served with a specific entity. More
               specifically, Rodriguez agreed to serve a precise sentence . . . .
               Rodriguez was bound by his agreement with the State, and
               having accepted the parties’ agreement the trial court was bound
               as well.


       Rodriguez I, 91 N.E.3d 1033, 1039 (Ind. Ct. App. 2008), trans. granted (citations

       omitted).


[16]   We find Senior Judge Rucker’s reasoning to be persuasive and agree that,

       although Indiana Code Section 35-38-1-17(l) prohibits a plea agreement from

       containing express language that purports to waive an offender’s right to

       sentence modification, the statute does not prohibit a finding of waiver on other

       grounds.” Id. (emphasis added). From our reading, Indiana Code Section 35-

       38-1-17(l) prohibits wholesale or blanket waivers of the right to sentence

       modification. Stated differently, in light of Indiana Code Section 35-38-1-17(l),

       a plea agreement cannot properly provide, for instance, that “Offender X is per

       se ineligible for sentence modification.” Indiana Code Section 35-38-1-17(l)

       does, however, allow for a finding of waiver “on other grounds,” such as a

       finding of waiver pursuant to a fixed sentence plea agreement. See id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019   Page 9 of 10
[17]   Here, in exchange for the State’s dismissal of four pending Class A felonies,

       Lopez agreed (1) to serve a thirty-five-year sentence and (2) that he would not

       be eligible for a sentence modification until 2021. Bound by the terms of

       Lopez’s fixed sentence plea agreement, the trial court correctly found that it

       lacked authority to modify Lopez’s sentence in light of the bargain that Lopez

       had struck with the State. We agree with Senior Judge Rucker and with the

       Stafford II panel that Indiana Code Section 35-38-1-17(l) does not prohibit a

       finding of waiver of sentence modification under this circumstance. The trial

       court’s decision to deny Lopez’s motion for sentence modification is not clearly

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


                                                 Conclusion
[18]   The trial court did not abuse its discretion in denying Lopez’s motion for

       sentence modification. We affirm.


[19]   Affirmed.


[20]   Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019   Page 10 of 10
