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).
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[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.
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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
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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.
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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.]
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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.
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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
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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).
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[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.
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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.
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