MEMORANDUM DECISION FILED
08/22/2017, 10:54 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Memorandum Decision shall not be regarded as Indiana Supreme Court
Court of Appeals
precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Kerry L. Thompson
Attorney General of Indiana Houston, Thompson & Lewis, PC
Scottsburg, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, August 22, 2017
Appellant-Plaintiff, Court of Appeals Case No.
72A01-1702-CR-227
v. Appeal from the Scott Circuit Court.
The Honorable Roger L. Duvall,
Senior Judge.
Codee Lamaster, Trial Court Cause No.
Appellee-Defendant. 72C01-1402-FC-9
Barteau, Senior Judge
Statement of the Case
[1] Codee Lamaster’s plea agreement provided for potential sentence modification
by the trial court without objection by the State upon Lamaster’s successful
completion of the Purposeful Incarceration Program while serving his executed
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sentence in the Indiana Department of Correction. Lamaster was terminated
from the program, but, nonetheless, requested sentence modification, which the
trial court granted. The State argues that the trial court’s modification of
Lamaster’s sentence violated the terms of the fixed plea agreement and was not
otherwise authorized by statute. We reverse and remand.
Issue
[2] We restate the issues presented as the following one: Whether the trial court’s
order modifying Lamaster’s sentence was in violation of the terms of the plea
agreement or merely a modification of the place of service of Lamaster’s
sentence, a modification which was not foreclosed by the terms of the plea
agreement and which was authorized by statute.
Facts and Procedural History
[3] Lamaster faced four felony counts for criminal activity committed in February
2014 under the lower cause number. On January 19, 2016, Lamaster and the
State entered into a plea agreement which provided that in exchange for
1
Lamaster’s guilty plea to two counts of Class C felony forgery, the State would
dismiss two other charges under the same cause number and charges pending
against him in other cases.
1
Ind. Code § 35-43-5-2 (2006).
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[4] The specific terms of the plea agreement relevant to this appeal provide as
follows:
4. In exchange for this Plea, the State of Indiana and the
Defendant shall recommend the following, and the parties agree
that, if accepted by the Court, the Court shall be bound by the
terms and conditions contained herein:
a. On Count I in 72C01-1402-FC-9
A sentence of SIX (6) YEARS to the Indiana Department of
Corrections,[sic] TWO (2) YEARS of said sentence to be
suspended, FOUR (4) YEARS of said sentence to be executed in
the Indiana Department of Corrections,[sic] with credit for 70
days actual with “good time” credit as of January 24, 2016.
TWO (2) YEARS of said sentence to be served on supervised
probation.
b. On Count II in 72C01-1402-FC-9
A sentence of SIX (6) YEARS to the Indiana Department of
Corrections,[sic] TWO (2) YEARS of said sentence to be
suspended, FOUR (4) YEARS of said sentence to be executed in
the Indiana Department of Corrections,[sic] with credit for 70
days actual with “good time” credit as of January 24, 2016.
TWO (2) YEARS of said sentence to be served on supervised
probation.
c. With respect to both Counts I and II:
- Counts to run CONCURRENTLY.
- State agrees that the Court may recommend the defendant for
PURPOSEFUL INCARCERATION through the Indiana
Department of Corrections,[sic] and upon successful completion
of that program, Defendant may petition the Court for
modification of his sentence, and the Court may consider and
grant the same. The State agrees not to object to modification if
the program is completed without any conduct violations on the
part of the Defendant. Further the State agrees to recommend
that the Defendant serve no more than TWO (2) YEARS on
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probation after his release from incarceration, although any
executed sentence that is modified by the Court may be
converted to suspended time and may exceed two (2) years.
- The State agrees that, should the Defendant complete
Purposeful Incarceration, and upon successful completion of
probation without any revocations, conviction in this matter may
be reduced to the lesser-included offense of CONVERSION as a
Class A Misdemeanor.
Appellant’s App. Vol. II, pp. 57-58.
[5] On January 25, 2016, the trial court accepted the guilty plea, entered judgment
of conviction, and sentenced Lamaster according to the terms of the plea
agreement, including recommendation of expedited placement in the program.
[6] In October 2016, Lamaster was warned with termination from the program for
incidents involving his behavior and was referred back to orientation.
[7] On December 14, 2016, Lamaster filed a petition to modify his sentence and for
immediate release, alleging that he had successfully completed the program,
and was entitled to total credit time of 394 actual days. Id. at 81-83. On
December 16, 2016, the State filed an objection to Lamaster’s immediate
release, alleging that after contacting Westville Correctional Facility, it had
learned that Lamaster had not completed the program as required by the terms
of the plea agreement. Id. at 85-87. The trial court requested a progress report
from the Department of Correction and set the matter for a hearing.
[8] On December 21, 2016, Lamaster tested positive for methamphetamine,
received a conduct report for possession of a controlled substance and was
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terminated from the program due to failure to comply with the minimum
standard of conduct required for participation. At the hearing on his petition,
Lamaster admitted that he was terminated from the program after testing
positive for methamphetamine.
[9] After reviewing the report and hearing evidence, including Lamaster’s
admission to being terminated from the program, the trial court found that
Lamaster had not successfully completed the program. However, the trial court
concluded that it retained the authority to modify Lamaster’s sentence, ordering
Lamaster to serve 590 days–the balance of the executed sentence–through
community corrections, finding that his support system justified placement in
community corrections instead of the Department of Correction. This appeal
ensued.
Discussion and Decision
[10] The question here is whether the trial court could modify Lamaster’s sentence
despite Lamaster’s violation of the terms of the plea agreement or under the
authority of Indiana Code section 35-38-1-17(e) (2016). We conclude that
neither option supports the trial court’s order.
[11] A plea agreement is contractual in nature, binding the defendant, the state, and
the trial court. Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). Once a
trial court accepts the plea agreement, the court is bound by its terms. Ind.
Code § 35-35-3-3(3) (1987). Where a plea agreement recommending a specific
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sentence has been accepted by the trial court, the trial court loses the discretion
it might otherwise exercise in sentencing. Pannarale, 638 N.E.2d at 1248.
[12] Here, the State recognized in the plea agreement that the trial court could
recommend placement in the program, and the State agreed that if Lamaster
successfully completed the program without any conduct violations, it would
not object if Lamaster sought a sentence modification. As Lamaster admitted
and the trial court found, Lamaster did not successfully complete the program.
Therefore, the trial court’s order is not supported by the terms of the plea
agreement.
[13] Instead, the trial court relied on Indiana Code section 35-38-1-17(e). Appellate
courts review a trial court’s decision to modify a sentence only for an abuse of
discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). Issues of
statutory interpretation are reviewed de novo because they present pure
questions of law. Id.
[14] As a general rule, courts must sentence a convicted person under the statute in
effect at the time the person committed the offense. Moore v. State, 30 N.E.3d
1241, 1246 (Ind. Ct. App. 2015). However, in the context of sentence
modification, the date on which the petition was filed is the critical date. Id. at
1248.
[15] The applicable statute provides in pertinent part as follows to a person who
commits an offense or is sentenced prior to July 1, 2014:
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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.
[16] The trial court partially complied with the directives of the statute by first
obtaining a report from the department of correction and stating its reasons for
the modification on the record––consent by the State was not required.
However, modification under the statute is inappropriate because the trial court
was not authorized to reduce or suspend the sentence for the purpose of
imposing a sentence the court was authorized to impose at the time of sentencing.
[17] At the time of sentencing, the trial court was authorized to impose the sentence
provided for in the plea agreement. The plea agreement called for concurrent,
executed sentences of four years in the Department of Correction with credit for
seventy actual days and good time credit as of January 24, 2016. Placement on
probation or a community corrections program is a matter of grace and a
conditional liberty that is a favor, not a right. Cox v. State, 706 N.E.2d 547, 549
(Ind. 1999). Lamaster explicitly agreed to executed sentences in the
Department of Correction and to the conditions he needed to fulfill to be
eligible for sentence modification. The trial court’s order is not supported by
the clear language of the statute or the terms of the plea agreement accepted and
imposed by the trial court.
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Conclusion
[18] In light of the foregoing, we reverse the trial court’s order on sentencing
modification and remand with instructions to deny Lamaster’s petition.
[19] Reversed and remanded.
Bailey, J., and Mathias, J., concur.
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