MEMORANDUM DECISION
Jun 17 2015, 9:12 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
Jesse J. Barger Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse J. Barger, June 17, 2015
Appellant-Defendant, Court of Appeals Cause No.
88A01-1501-CR-7
v. Appeal from the Washington
Superior
Cause No. 88D01-0507-FA-187
State of Indiana,
Appellee-Plaintiff. The Honorable John Evans, Judge
Barnes, Judge.
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Case Summary
[1] Jesse Barger appeals the trial court’s denial of his motion for modification of
sentence. We affirm.
Issue
[2] Barger raises one issue, which we restate as whether the trial court properly
denied his motion for modification of sentence.
Facts
[3] In 2005, Barger was convicted of Class A felony dealing in cocaine and Class C
felony possession of cocaine. According to Barger, in November 2005, he was
sentenced to thirty years with ten years suspended. He was released in 2011,
and a probation violation petition was filed in July 2013. An amended petition
to revoke Barger’s probation was filed in September 2013. According to the
Chronological Case Summary, Barger “appear[ed] and enter[ed] a blind plea of
guilty to violation of probation, by committing other crimes.” App. p. 12. In
February 2014, the trial court found that Barger had violated his probation and
ordered him to serve five years of his suspended sentence. The order provided:
Probation shall resume upon completion of this sentence. After the
defendant has served two years of his sentence (1 actual year) he may
petition the Court to review his case for possible modification,
including the possibility of placement in a community correction
program such as work release or day reporting. The Court will grant
or deny the request in its sole discretion after considering the
defendant’s conduct and other relevant factors.
Id. at 51.
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[4] In November 2014, Barger filed a motion for modification of sentence. Barger
alleged that:
The sentencing Court, according to the Open Plea Agreement, agreed
to evaluate the Defendant’s case for possible modification to a
Community Corrections program; after Defendant served two (2)
years of his five (5) year term, one (1) year actual. (see open plea
agreement) However, this Court has yet to review this case properly
by ordering an evaluation from IDOC.
Id. at 26. Barger requested that the trial court modify his sentence to be served
in community corrections. The State objected to Barger’s request, and the trial
court denied Barger’s motion. Barger now appeals.
Analysis
[5] Barger argues that the trial court erred by denying his motion for modification
of sentence. A trial court’s decision to reduce or suspend a sentence is
discretionary. Catt v. State, 749 N.E.2d 633, 643 (Ind. Ct. App. 2001), trans.
denied. An abuse of discretion occurs if the decision is “clearly against the logic
and effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
[6] According to Barger, as part of his “open plea agreement,” the State waived its
right to object to a sentence modification and the trial court was required to
order an evaluation from the Department of Correction. Appellant’s Br. p. 1.
Barger argues that the trial court “breached its plea agreement.” Id. at 2. “A
plea agreement is contractual in nature, binding the defendant, the State, and
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the trial court.” Abernathy v. State, 852 N.E.2d 1016, 1019 (Ind. Ct. App. 2006).
“The trial court is given the discretion to accept or reject a plea agreement, and,
if it accepts the agreement, it is strictly bound thereby.” Id. “Furthermore,
upon acceptance of such an agreement, the trial court is precluded from
imposing any sentence other than that required by the plea agreement.” Id.
[7] The State disputes that a plea agreement existed here. Our review of the record
reveals that Barger admitted to violating his probation and that the trial court
sentenced him to serve five years of his previously imposed sentence as a result
of the probation violation. In the order, the trial court noted that Barger could
file a petition to modify his sentence after serving “two years of his sentence (1
actual year),” but that it would “grant or deny the request in its sole discretion
after considering defendant’s conduct and other relevant factors.” App. p. 51.
In his reply brief, Barger states that the plea agreement was filed under a
separate cause number. In a supplemental appendix, he includes a plea
agreement for 88D01-1309-CM-638. The only mention of the current case is a
notation that he will enter a “blind admission” for 88D01-0507-FA-187. Suppl.
App. p. 1. There is no mention of the State waiving a right to object to the
proposed modification or of the trial court being required to order an evaluation
from the DOC. Further, although Barger mentions Indiana Code Section 35-
38-1-17, he makes no analysis of which version of the statute applies or the
language of either version.1 Under these circumstances, we cannot say that the
1
Indiana Code Section 35-38-1-17 was amended effective July 1, 2014.
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trial court abused its discretion by denying Barger’s motion for modification of
sentence.
Conclusion
[8] The trial court did not abuse its discretion by denying Barger’s motion for
modification of his sentence. We affirm.
[9] Affirmed.
[10] Riley, J., and Bailey, J., concur.
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