MEMORANDUM DECISION
Jul 07 2015, 8:41 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
Herbert Cox III Gregory F. Zoeller
Westville, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Herbert Cox III, July 7, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1501-CR-38
v. Appeal from the Lake Superior
Court
The Honorable Diane R. Boswell,
The State of Indiana, Judge
Appellee-Plaintiff. The Honorable Kathleen A.
Sullivan, Magistrate
Trial Court Cause No. 45G03-1210-
FD-239
Bradford, Judge.
Case Summary
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[1] In February of 2013, Appellant-Defendant Herbert Cox III pled guilty to Class
C felony habitual traffic violator. Pursuant to the terms of Cox’s plea
agreement, the trial court sentenced Cox to a term of seven years, all of which
was to be executed in the Department of Correction. In December of 2014,
Cox filed a petition seeking a modification of his sentence. The trial court
denied Cox’s petition. On appeal, Cox contends that the trial court abused its
discretion in denying his petition. Finding no abuse of discretion, we affirm.
Facts and Procedural History
[2] On or about May 3, 1995, Cox’s driving privileges were suspended for life after
Cox was found to have driven while being a habitual traffic violator. On
October 6, 2012, Cox was stopped by the Lake Station Police Department for
operating a motor vehicle, i.e., a black Harley Davidson motorcycle, at the
speed of approximately 100 miles per hour in a posted thirty-five miles per hour
zone. Cox was subsequently charged with Class C felony habitual traffic
violator. He was also alleged to have committed numerous traffic infractions.
[3] On or about February 19, 2013, Cox pled guilty to the Class C felony habitual
traffic violator charge. The terms of Cox’s plea agreement are as follows:
A. [Cox] agrees to plead guilty to the charge of Habitual Traffic
Violator, a Class C Felony, in Cause #45G03-1210-FD-00239;
B. The Parties agree that [Cox] shall be sentenced to seven (7)
years to be executed in the Department of Correction.
C. The Parties agree and understand that participation in an
alternative sentence program is not an option for [Cox], for his plea of
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guilty to the charge of Habitual Traffic Violator, a Class C Felony, in
Cause #45G03-1210-FD-00239;
D. The Parties agree and understand that the sentence imposed in
Cause #45G03-1210-FD-00239 shall be served consecutive to any/all
sentences(s) currently imposed in Lake County and Porter County;
E. The Parties agree and understand that the sentence imposed in
Cause #45G03-1210-FD-00239 shall be served consecutive to any/all
sentence(s) to be imposed in Lake County and Porter County;
F. Additionally, any Defendant on Pretrial ICU Monitoring will
not receive credit days toward their sentence[;]
G. At the time of sentencing, [Appellee-Plaintiff the State of
Indiana (the “State”)] agrees to dismiss Cause #45G03-1206-FD-
00136 in its entirety; [and]
F. Attached hereto and incorporated herein as Exhibit ‘A’ is the
Stipulated Factual Basis.
Appellant’s App. p. 7 (italics added, bold in original). The trial court approved
the parties’ plea agreement and sentenced Cox in accordance with its terms.
[4] On December 4, 2014, Cox filed a pro-se petition for the modification of his
sentence. The trial court denied Cox’s petition, stating that “The Court rules
that pursuant to Robinette v. State[,] 798 N.E.2d 537 (Ind. App. 2003) and ex
rel Goldsmith v. Superior Court, 419 N.E.2d 109 (Ind. 1981), the Court is
without authority to, and may not, modify the sentence.” Appellant’s App. p. 4
(bold in original). Cox subsequently filed a pro-se motion to reconsider. The
motion to consider was also denied by the trial court. This appeal follows.
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Discussion and Decision 1
[5] Cox contends that the trial court abused its discretion by denying his petition
for a modification of his seven-year sentence. Specifically, Cox claims that the
trial court abused its discretion in determining that it did not have the authority
to modify Cox’s sentence. “We review a trial court’s decision to modify a
sentence only for abuse of discretion.” Hobbs v. State, 26 N.E.3d 983, 985 (Ind.
Ct. App. 2015) (citing 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.” Id. (citing Myers v. State,
718 N.E.2d 783, 789 (Ind. Ct. App. 1999)).
[6] Again, Cox claims that the trial court abused its discretion in stating that it did
not have the authority to modify Cox’s sentence. In support of this claim, Cox
relies on sub-section (i) of the version of Indiana Code section 35-38-1-17 which
went into effect on July 1, 2014. Cox asserts that it was the General Assembly’s
intent that this subsection would apply retroactively to a defendant who
committed a criminal act, was found guilty, and was sentenced prior to the date
when the amended version of Indiana Code section 35-38-1-17 went into effect.
We disagree.
1
We note that the State argued, on cross-appeal, that Cox’s appeal should be dismissed
because it was not timely filed. Given our preference to decide matters on the merits, we will
not address the State’s argument regarding whether the instant appeal was timely filed and
will instead decide Cox’s claim on the merits.
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[7] Indiana Code section 35-38-1-17 relates to the reduction or suspension of a
sentence. Effective July 1, 2014, the Indiana General Assembly amended
Indiana Code section 35-38-1-17 to read, in pertinent part,
(i) 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.
2014 Ind. Legis. Serv. P.L. 168-2014. In light of this language, which again
Cox argues was intended to apply retroactively, Cox claims that the trial court
abused its discretion in finding that it did not have the authority to modify his
sentence because Cox’s plea agreement was for a fixed term and indicated that
Cox had waived any potential future request for a sentence modification.
[8] However, the General Assembly made it clear that it did not intend for the
version of Indiana Code section 35-38-1-17 that went into effect on July 1,
2014, to apply retroactively. Also effective July 1, 2014, the General Assembly
passed Indiana Code section 1-1-5.5-21 which stated as follows:
(a) A SECTION of P.L. … P.L.168-2014 does not affect:
(1) penalties incurred;
(2) crimes committed; or
(3) proceedings begun;
before the effective date of that SECTION of … P.L.168-2014. Those
penalties, crimes, and proceedings continue and shall be imposed and
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enforced under prior law as if that SECTION of … P.L.168-2014 had
not been enacted.
(b) The general assembly does not intend the doctrine of amelioration
(see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any
SECTION of … P.L.168-2014.
[9] In addition, we have previously concluded that the revisions of Indiana Code
section 35-38-1-17 that went into effect on July 1, 2014, do not apply
retroactively. See Swallows v. State, 31 N.E.3d 544, 545-47 (Ind. Ct. App. 2015)
(noting the plain meaning of the savings clause, and following the intent of the
Legislature and our court’s reasoning in Hobbs, we conclude that the current
version of Indiana Code section 35-38-1-17, which became effective July 1,
2014, does not apply to Swallows’s petition to modify a sentence that he began
serving in 1989); Hobbs, 26 N.E.3d at 985 (concluding that “despite Hobbs’[s]
assertions to the contrary on appeal, there is no question that the current
version of Indiana Code Section 35-38-1-17 does not apply to him”); Marley v.
State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (concluding that “[i]t is
abundantly clear from these statutes that the General Assembly intended the
new criminal code to have no effect on criminal proceedings for offenses
committed prior to the enactment of the new code”), trans. denied. As such, we
conclude that the version of Indiana Code section 35-38-1-17 that was in effect
at the time Cox committed the underlying offense applies to Cox.
[10] Again, Cox committed the underlying offense of Class C felony habitual traffic
violator on October 6, 2012. The version of Indiana Code section 35-38-1-17
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that was in effect at the time Cox committed this criminal offense read as
follows:
(a) Within three hundred sixty-five (365) days after:
(1) a convicted person begins serving the person's
sentence;
(2) a hearing is held:
(A) at which the convicted person is
present; and
(B) of which the prosecuting attorney has
been notified; and
(3) 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. The court
must incorporate its reasons in the record.
(b) If more than three hundred sixty-five (365) days have elapsed since
the convicted person began serving the sentence and after a hearing at
which the convicted person is present, the court may reduce or
suspend the sentence, subject to the approval of the prosecuting
attorney. However, if in a sentencing hearing for a convicted person
conducted after June 30, 2001, the court could have placed the
convicted person in a community corrections program as an
alternative to commitment to the department of correction, the court
may modify the convicted person’s sentence under this section without
the approval of the prosecuting attorney to place the convicted person
in a community corrections program under IC 35-38-2.6.
(c) The court must give notice of the order to reduce or suspend the
sentence under this section to the victim (as defined in IC 35-31.5-2-
348) of the crime for which the convicted person is serving the
sentence.
(d) The court may suspend a sentence for a felony under this section
only if suspension is permitted under IC 35-50-2-2.
(e) The court may deny a request to suspend or reduce a sentence
under this section without making written findings and conclusions.
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(f) Notwithstanding subsections (a) and (b), the court is not required to
conduct a hearing before reducing or suspending a sentence if:
(1) the prosecuting attorney has filed with the court an
agreement of the reduction or suspension of the sentence;
and
(2) the convicted person has filed with the court a waiver
of the right to be present when the order to reduce or
suspend the sentence is considered.
[11] In addition, we have previously concluded that where the trial court accepted a
plea agreement that contained a term of years and sentenced the defendant
accordingly, the trial court does not have the authority to subsequently modify
the defendant’s sentence. Robinett v. State, 798 N.E.2d 537, 539-40 (Ind. Ct.
App. 2003). We explained the reasons for reaching this conclusion in detail in
Robinett, stating:
Nor did the trial court abuse its discretion by denying Robinett’s
motion for modification of sentence. Robinett’s plea agreement
provided he would receive a thirty-year sentence, and pursuant to his
guilty plea, the trial court sentenced Robinett to thirty years. Our
supreme court has explained why trial courts may not modify
sentences in these circumstances:
Plea agreements between criminal defendants and
prosecutors are designed to induce the defendant to plead
guilty, typically in return for a promise of less than the
maximum sentence. As we observed in [State ex rel.
Goldsmith v. Superior Court, 275 Ind. 545, 419 N.E.2d 109
(1981)], a plea agreement is contractual in nature, binding
the defendant, the state and the trial court. See also
Thompson [v. State], 617 N.E.2d [576,] 578 [Ind. Ct. App.
(1993)]. 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
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accepts a plea agreement, it shall be bound by its terms.”
Ind. Code Ann. § 35-35-3-3(e) (West Supp. 1993).
As the statute suggests, the trial court may at its discretion
reject the plea agreement and try the case or consider any
new plea agreement the parties negotiate. Once it has
accepted a plea agreement recommending a specific
sentence, however, the terms of the agreement constrain
the discretion the court would otherwise employ in
sentencing. Even after a sentence has been imposed
pursuant to a plea agreement containing a
recommendation of a specific term of years, that sentence
may not be altered upon subsequent motion, such as
under Ind. Code § 35-38-1-23 for “shock probation,”
unless the agreement contained a specific reservation of
such authority for the trial judge. Goldsmith, 275 Ind. at
551-52, 419 N.E.2d at 114.
Goldsmith and its progeny each uphold the principle that a
deal is a deal. Once it has accepted a plea agreement, the
sentencing court possesses only that degree of discretion
provided in the plea agreement with regard to imposing
an initial sentence or altering it later.
Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). Because the
court sentenced Robinett to the number of years provided in his plea
agreement, the court had no authority to reduce that sentence. See id.
Id. As such, we concluded that “[b]ecause the trial court had no authority to
modify Robinett’s sentence, the trial court did not abuse its discretion when it
denied his motion.” Id. at 540.
[12] Considering the language contained in the version of Indiana Code section 35-
38-1-17 that was in effect at the time Cox committed the underlying criminal
offense together with our prior conclusion in Robinett, we conclude that the trial
court did not abuse its discretion in determining that it did not have the
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authority to modify Cox’s previously agreed upon seven-year executed
sentence. Accordingly, we affirm the judgment of the trial court.
[13] The judgment of the trial court is affirmed.
Vaidik, C.J., and Kirsch, J., concur.
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