Alberto Baiza Rodriguez v. State of Indiana

OPINION ON REMAND
FILED
Dec 14 2018, 9:29 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jessica R. Merino Curtis T. Hill, Jr.
Merino Law Firm, PC Attorney General
Goshen, Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Alberto Baiza Rodriguez, December 14, 2018
Appellant-Petitioner, Court of Appeals Case No.
20A03-1704-CR-724
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable David C.
Appellee-Respondent Bonfiglio, Judge
Trial Court Cause No.
20D06-1503-F6-264

Crone, Judge.

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 Case Summary
[1] In our prior opinion in this case, Rodriguez v. State, 91 N.E.3d 1033 (Ind. Ct.

App. 2018), trans. granted, we held that the trial court erred in ruling that

Alberto Baiza Rodriguez had waived his right to seek modification of his fixed

sentence imposed pursuant to a plea agreement in 2016 for crimes committed in

2015. We based our holding on a 2014 statutory amendment which

unambiguously provides that “[a] person may not waive the right to sentence

modification under this section as part of a plea agreement.” Ind. Code § 35-

38-1-17(l) (2014). Our supreme court granted transfer. The court did not hold

that our interpretation of the statute was erroneous and affirm the trial court’s

ruling; instead, the court remanded with instructions to reconsider our holding

in light of the legislature’s 2018 amendments to Indiana Code Sections 35-38-1-

17 and 35-35-1-2.

[2] We invited the parties to submit supplemental materials, which they did.

Rodriguez argues that the 2018 amendments are not intended to apply

retroactively, and, even if they were, such an application would

unconstitutionally impair his contractual rights under his plea agreement with

the State. We agree with Rodriguez. Therefore, we reaffirm our original

holding, reverse the trial court’s denial of Rodriguez’s motion to modify his

sentence, and remand for further proceedings consistent with this opinion.

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 Facts and Procedural History
[3] Based on a March 2015 incident, the State charged Rodriguez with several

offenses and with being a habitual vehicle substance offender. In January 2016,

Rodriguez and the State entered into a written plea agreement in which

Rodriguez agreed to plead guilty to all but one of the charges and serve seventy-

two months in the Department of Correction on work release, and the State

agreed to dismiss the remaining charge and not file additional charges. The

trial court accepted the agreement and sentenced Rodriguez accordingly.

[4] In January 2017, Rodriguez filed a motion to modify his sentence on the basis

of family hardship and asserted that the then-current version of Indiana Code

Section 35-38-1-17(e) permitted the trial court to modify his remaining sentence

to home detention:

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.

Rodriguez asked the trial court to order a report from the work release program

and set the matter for hearing, which it did.

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[5] At the hearing, the trial court acknowledged that the work release report was

“very outstanding[,]” Tr. Vol. 2 at 7, but ultimately it issued an order

concluding that it did “not have the authority to modify the sentence because

the court accepted the parties’ plea agreement which requires the defendant to

serve the sentence in Work Release.” The court referenced Indiana Code

Section 35-35-3-3(e), which states, “If the court accepts a plea agreement, it

shall be bound by its terms.” The court also quoted the then-current version of

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[, which limit the
number of times a person may file a petition for sentence
modification without the consent of the prosecuting attorney].

(Emphasis added.) This provision had been added to the statute in 2014. The

court concluded that the italicized phrase “applies to the specific terms of a plea

agreement that the court has accepted[,]” and thus “entering into a binding plea

agreement waives the right to seek or receive a modification of sentence.”

[6] Rodriguez appealed, arguing that the trial court erred in ruling that he had

waived his right to seek modification of his sentence. We addressed his

argument as follows:

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 It is hornbook law that a plea agreement is contractual in nature,
binding both the defendant and the State. E.g., St. Clair v. State,
901 N.E.2d 490, 492 (Ind. 2009). “Bargaining between the State
and a pleading defendant will have produced for court
consideration an agreement that either specifies a precise penalty
or leaves some or all of the specifics to the judgment of the trial
court.” Id. at 493. “[I]t is up to the trial court to accept or reject
the plea agreement as filed.” Badger v. State, 637 N.E.2d 800, 802
(Ind. 1994). As noted above, once a trial court accepts a plea
agreement, it is bound by its terms. Ind. Code § 35-35-3-3(e).

In years past, the legislature placed significant limitations on a
trial court’s authority to modify a sentence imposed after a trial.
A trial court could reduce or suspend a defendant’s sentence
within the first three hundred sixty-five days (commonly known
as “shock probation”), but after that point most reductions or
suspensions were subject to approval of the prosecuting attorney.
See Ind. Code § 35-38-1-17 (formerly 35-38-1-23) (historical
statutes). With respect to plea agreements containing a fixed
sentence, our supreme court held as follows:

Once it has accepted a plea agreement
recommending a specific sentence, … 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. [State ex rel. Goldsmith v. Marion Cty.
Super. Ct., 275 Ind. 545, 551-52, 419 N.E.2d 109, 114
(1981)].

Goldsmith and its progeny each uphold the principle

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 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).

Since 2014, however, the legislature has gradually relaxed the
restrictions on sentence modification, allowing trial courts to
reduce or suspend sentences for nonviolent offenders “[a]t any
time” without prosecutorial approval in certain circumstances.
Ind. Code § 35-38-1-17(e), -(j). The legislature also added what is
now Section 35-38-1-17(l), which, as mentioned above, provides
that “[a] person may not waive the right to sentence modification
under this section as part of a plea agreement” and that “[a]ny
purported waiver of the right to sentence modification under this
section in a plea agreement is invalid and unenforceable as
against public policy.” Section 35-38-1-17(l) also provides that it
“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 the statute.

In this case, Rodriguez’s plea agreement contained a specific
reservation of authority for the trial court to modify his sentence,
but only in the event that he was incarcerated, which he was
not.… The trial court essentially concluded that by entering into
a plea agreement with a fixed sentence to be served on work
release, Rodriguez waived the right to modification of that
sentence. But that is precisely what Section 35-38-1-17(l)
prohibits in no uncertain terms as a violation of public policy; it
does not distinguish between implicit or explicit waivers, and we
may not read such a distinction into the statute. [N.D.F. v. State,
775 N.E.2d 1085, 1088 (Ind. 2002)].

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 The State argues,

In plea bargains, the State is often agreeing to dismiss
other (often, more serious) charges or to forego filing
additional charges in exchange for the certainty of a
definite sentence or definite limits on sentencing
options that ensure the defendant will receive no less
than a certain sentence. If that fixed sentence can be
modified at any time, or if the negotiated limits on
sentencing discretion can be ignored at any time,
then the agreement is purely illusory, and the State is
not receiving the benefit for which it bargained. The
State will be unwilling to enter into plea agreements
if they will not be enforced.

Appellee’s Br. at 12. We acknowledge the State’s concern, but as
another panel of this Court stated in response to a similar
argument in a recent case,

the statute says what it says, and we are bound to
interpret and apply statutes in a way that fulfills the
legislature’s intent. Unless and until the General
Assembly clarifies the statute at issue, it clearly and
unambiguous[ly] states that offenders “may not
waive the right to sentence modification … as part of
a plea agreement.”

State v. Stafford, 86 N.E.3d 190, 193 (Ind. Ct. App. 2017) (quoting
Ind. Code § 35-38-1-17(l)), trans. granted.

The State also points to Section 35-35-3-3(e), which provides that
a trial court “shall be bound” by the terms of a plea agreement
that it accepts, and argues that if the legislature “had intended to
change this law and allow modifications of fixed-sentence pleas,
it would have said so directly.” Appellee’s Br. at 13-14. We

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 think that the legislature said so directly in Section 35-38-1-17(l).
The State also mentions Section 35-38-1-17(e), which states that a
court “may reduce or suspend [a] sentence and impose a sentence
that the court was authorized to impose at the time of
sentencing”; the State contends that “in a case involving a fixed-
sentence plea, the only sentence that the court ‘was authorized to
impose at the time of sentencing’ is the precise sentence provided
for in the plea agreement.” Appellee’s Br. at 11. As the Stafford
court said, “[w]e cannot agree with the State’s tortured
interpretation of the plain statutory language.” 86 N.E.3d at 193.

[A]s to what sentence the trial court is “authorized”
to impose at the time of sentencing, that
authorization is bound not only by the language of
the plea agreement but also by the law. And the
General Assembly has quite clearly stated that, as of
July 2014, “[a] person may not waive the right to
sentence modification under this section as part of a
plea agreement.” I.C. § 35-38-1-17(l). Therefore,
following the enactment of these statutory
amendments, the legislature has declared that trial
courts are not authorized to impose a sentence that
purports to waive the defendant’s right to a later
modification.

Id.

Based on the foregoing, we believe that Sections 35-35-3-3(e), 35-
38-1-17(e), and 35-38-1-17(l) may be harmonized to preserve a
defendant’s right to modification of a fixed sentence imposed
under a plea agreement.… If the legislature disagrees with our
interpretation of Section 35-38-1-17(l), then it may clarify the
statute accordingly. We hold that modification of Rodriguez’s
sentence is permissible under Section 35-38-1-17(l), and therefore
we reverse and remand for further proceedings consistent with
this opinion.
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 Rodriguez, 91 N.E.3d at 1036-38 (footnotes omitted).

[7] The State filed a petition for transfer, which our supreme court granted in

March 2018, thereby vacating our opinion. On July 12, the court issued a two-

paragraph order in which it remanded this case for reconsideration “in light of”

the legislature’s most recent amendments to Sections 35-38-1-17 and 35-35-1-2,

which became effective July 1, 2018. Rodriguez v. State, 100 N.E.3d 696, 696

(Ind. 2018).1 The court also mentioned that Section 35-38-1-17 “provides that

the section applies to a person who commits an offense or is sentenced before

July 1, 2014, notwithstanding Indiana Code section 1-1-5.5-21.” Id.2 Although

the court vacated our opinion, it did not expressly disagree with or disapprove

of our interpretation of the 2014 amendments to Section 35-38-1-17.

[8] Both parties accepted our invitation to submit supplemental materials, and we

thank them for their submissions. Having reconsidered our holding in light of

the 2018 legislative amendments, as well as the parties’ supplemental briefs, we

reaffirm that holding for the reasons given below.

1
The court issued a similar order in Stafford. 100 N.E.3d 696 (Ind. 2018).
2
Indiana Code Section 1-1-5.5-21(a) states,

A SECTION of P.L. 158-2013 or P.L. 168-2014 [both of which amended Section 35-38-1-17]
does not affect:
(1) penalties incurred;
(2) crimes committed; or
(3) proceedings begun;
before the effective date of that SECTION of P.L. 158-2013 or P.L. 2014. Those penalties,
crimes, and proceedings continue and shall be imposed and enforced under prior law as if that
SECTION of P.L.158-2013 or P.L.168-2014 had not been enacted.

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 Discussion and Decision
[9] For context, we set out the relevant parts of Sections 35-38-1-17 and 35-35-1-2,

with the 2018 amendments italicized:

(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
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

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

Ind. Code § 35-38-1-17 (2018) (emphases added).

(a) The court shall not accept a plea of guilty or guilty but
mentally ill at the time of the crime without first determining that
the defendant:

(1) understands the nature of the charge against the
defendant;

….

(5) has been informed that if:

(A) there is a plea agreement as defined by IC 35-
31.5-2-236; and

(B) the court accepts the plea;

the court is bound by the terms of the plea agreement at the
time of sentencing and with respect to sentence modification under
IC 35-38-1-17.

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 Ind. Code § 35-35-1-2 (2018) (emphasis added). In sum, the 2018 amendments

provide that a sentence imposed “under the terms of a plea agreement” may not

be modified to “a sentence not authorized by the plea agreement” without the

prosecuting attorney’s consent, which was not the case between July 1, 2014,

and July 1, 2018.

[10] Rodriguez posits that “[t]he Supreme Court’s remand for reconsideration …

seems to suggest that the General Assembly’s changes to the law may have

some retroactive effect on this Court’s prior ruling[,]” and he correctly observes

that, “[a]s a general rule, changes in law apply prospectively only unless the

General Assembly expressly provided otherwise.” Appellant’s Supp. Br. at 4, 5.

See Diaz v. State, 753 N.E.2d 724, 728 n.5 (Ind. Ct. App. 2001) (“Generally,

amendatory acts are given prospective effect only, unless retrospective

application is expressly provided therein.”), trans. denied; see also Sales v. State,

723 N.E.2d 416, 421 (Ind. 2000) (“Subsequent legislation does not serve

retroactively to amend legislation or declare the intent of a prior General

Assembly.”).3 Rodriguez further observes that “[e]ven when [amendments] are

remedial, retroactive application is disfavored when existing rights would be

3
In arguing that the legislature intended for the 2018 amendments to apply retroactively to Rodriguez, the
State asserts that their enactment only several months after Stafford is “remarkably similar to the legislature’s
statutory amendments regarding untimely amendments to a charging information” in response to our
supreme court’s opinion in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). Appellee’s Supp. Br. at 10. In Hurst
v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), trans. denied, this Court found that the legislature intended
for those amendments to apply retroactively, even though it “did not expressly provide” for that. We need
not address this argument because even if we were to conclude that the legislature intended for the 2018
amendments to apply retroactively, we would find such an application unconstitutional as to Rodriguez for
the reasons given below.

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 infringed.” Id. (quoting Brane v. Roth, 590 N.E.2d 587, 590 (Ind. Ct. App.

1992), trans. denied). He argues that applying the 2018 amendments to Sections

35-38-1-17 and 35-35-1-2 retroactively to plea agreements made between July 1,

2014, and July 1, 2018, “would infringe on a plea bargainer’s right to petition

for a modification as it existed under the modification statute at the time.” Id.

“The challenger to the validity of a statute must overcome a presumption that

the statute is constitutional. That party bears the burden of proving otherwise.”

Johnson v. State, 38 N.E.3d 686, 690 (Ind. Ct. App. 2015) (citation omitted). We

conclude that Rodriguez has met that burden here.

[11] Plea agreements are contracts, and contract law principles provide guidance in

considering the agreement. Fowler v. State, 977 N.E.2d 464, 467 (Ind. Ct. App.

2012), aff’d on reh’g, 981 N.E.2d 623 (2013), trans. denied. “Generally, unless a

contract provides otherwise, all applicable law in force when the agreement is

made impliedly forms a part of the agreement without any statement to that

effect.” Id. at 468. The applicable law in force when Rodriguez entered his

plea agreement with the State included the 2014 amendments to Section 35-38-

1-17, which we have held allow the modification of fixed sentences. “Article I,

Section 10 of the United States Constitution provides that no state shall pass

any law impairing the obligations of contracts.” Mainstreet Prop. Grp., LLC v.

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 Pontones, 97 N.E.3d 238, 244 (Ind. Ct. App. 2018), trans. denied.4 “It long has

been established that the Contract Clause limits the power of the States to

modify their own contracts as well as to regulate those between private parties.”

Id. (quoting U.S. Tr. Co. of New York v. New Jersey, 431 U.S. 1, 17 (1977)); see also

Carr v. State ex rel. Du Coetlosquet, 127 Ind. 204, 207, 26 N.E. 778, 779 (1891)

(“The principle that a state, in entering into a contract, binds itself substantially

as an individual does under similar circumstances, necessarily carries with it the

inseparable and subsidiary rule that it abrogates the power to annul or impair its

own contract.”).

[12] The federal constitution’s “Contract Clause prohibits changes in law only if

they operate ‘as a substantial impairment of a contractual relationship.’” Elliott

v. Bd. of Sch. Trs. of Madison Consol. Sch., 876 F.3d 926, 932 (7th Cir. 2017)

(quoting Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992) (quoting Allied

Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978)), cert. denied (2018).

“This standard balances individual rights to organize personal affairs against

the States’ ‘necessarily reserved’ sovereign power to protect the general

welfare.” Id. (quoting U.S. Tr. Co., 431 U.S. at 21). “The Supreme Court has

harmonized these interests by applying a two-step analysis, asking first whether

a change in state law has substantially impaired a contractual relationship, and

4
“Similarly, Article 1, Section 24 of the Indiana Constitution provides that no law impairing the obligation
of contracts shall ever be passed.” Mainstreet Prop. Grp., LLC, 97 N.E.3d at 244. Because we hold that
retroactive application of the 2018 amendments would be unconstitutional as to Rodriguez under the federal
constitution, we need not address his state constitutional argument.

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 second whether the impairment is reasonable and necessary for a legitimate

public purpose.” Id. (citation omitted).

[13] Regarding the first step, we must consider “(1) whether there is a contractual

relationship; (2) whether a change in law impairs that contract; and (3) whether

the impairment is substantial.” Id. The answer to (1) is obviously yes. As for

(2), assuming for argument’s sake that the 2018 amendments apply

retroactively, they would impair Rodriguez’s plea agreement by requiring

prosecutorial consent for modification of his sentence, whereas none was

required when the plea agreement was made.

[14] And as for (3), we note that “substantial impairment does not require a

complete destruction of the contractual relationship.” Id. at 934. “The issue is

whether the impairment disrupts reasonable contractual expectations.” Id.

“The Supreme Court’s decisions under the Contract Clause show that reliance

interests are key to this inquiry.” Id. “When a State makes an express

commitment to private businesses or individuals, reliance may be highly

justified.” Id. at 937. We must make the following inquiries: (1) whether the

impaired term was “a ‘central undertaking’ of the bargain such that it

‘substantially induced’” Rodriguez to enter the plea agreement; and (2) whether

the change in law was foreseeable, “meaning that the risk of change was

reflected in the original contract[.]” Id. at 934 (quoting City of El Paso v.

Simmons, 379 U.S. 497, 514 (1965)).

[15] Regarding the first inquiry, Rodriguez argues,

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 the plea agreement called for 72 months in the IDOC to be
served on Work Release. Although this Court previously stated
that Rodriguez was not incarcerated as a result of his plea, a 72-
month term of incarceration at the IDOC is contemplated in the
plea, and as the Court noted, the plea discusses a modification.
Thus, the modification statute was invoked in Rodriguez’s
agreement, and by “knowingly” entering his plea, Rodriguez
executed his plea agreement with the understanding that the
plain language of I.C. § 35-38-1-17 gave him a right to petition
the court for a sentence modification. Regardless of whether
Rodriguez was incarcerated as a result of his plea, the express
term in his agreement squarely places the prior version of the
modification statute within his contract expectations, and
Rodriguez was entitled to rely on the continuing application of
the law.

Appellant’s Supp. Br. at 9-10 (citations omitted). And regarding the second

inquiry, Rodriguez argues that although he “could have foreseen that the

General Assembly would change the law, he could not have foreseen a

retroactive application. ‘One can anticipate that any state law may change in

the future, but retroactive application to impair existing contract rights and

reliance interests is another question.’” Id. at 10 (quoting Elliott, 876 F.3d at

936). We find both arguments persuasive.

[16] “Still, not even all substantial impairments of contracts are unconstitutional. If

the impairment is both reasonable and necessary for an important public

purpose, then the law does not violate the Contract Clause.” Elliott, 876 F.3d at

936. “Courts owe at least some deference to legislative determinations of

reasonableness and necessity. The degree of deference differs depending on the

severity of the impairment and on the State’s self-interest.” Id. at 936-37

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 (citations omitted). “When a State impairs its own contracts, the impairment

must be ‘clearly necessary’ or ‘essential,’ not merely convenient or expedient.”

Id. at 938 (quoting Simmons, 379 U.S. at 516, and U.S. Trust Co., 431 U.S. at

29). “A substantial impairment is not necessary if the State could achieve the

goal through a less drastic modification’ or ‘without modifying’ the contract ‘at

all.’” Id. (quoting U.S. Trust Co., 431 U.S. at 29).

[17] Rodriguez contends,

Although the General Assembly has amended the statute to
reflect their present intentions, the prior version cannot be viewed
as a mere drafting error. The language was plain, and
individuals relied upon its plain meaning when entering into
fixed-sentence pleas. Retroactive application is neither necessary
nor reasonable when applied to [] plea agreements entered under
the 2014 version of the modification statute because the State
could have protected [itself] via contract [i.e., by stipulating
conditions in a plea offer by which a defendant may seek a
modification] ….

Appellant’s Supp. Br. at 11. We find this argument persuasive as well and

therefore hold that retroactive application of the 2018 amendments as to

Rodriguez would violate the federal constitution’s Contract Clause.

[18] On a more basic level, regardless of whether retroactive application of the 2018

amendments would substantially impair Rodriguez’s contractual rights under

the plea agreement, it would be fundamentally unfair. As the Seventh Circuit

Court of Appeals stated in Elliott, “It is not fair to change the rules so

substantially when it is too late for the affected parties to change course.” 876

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 F.3d at 935; see also Woody’s Grp., Inc. v. City of Newport Beach, 183 Cal. Rptr. 3d

318, 330 (Cal. Ct. App. 2015) (“[C]hanging the rules in the middle of the game

does not accord with fundamentally fair process.”). Based on the foregoing, we

reaffirm our prior holding, reverse the trial court’s denial of Rodriguez’s motion

to modify his sentence, and remand for further proceedings consistent with this

opinion.

[19] Reversed and remanded.

Mathias, J., concurs.

Rucker, S.J., dissents with separate opinion.

Rucker, S.J., dissenting.

For the reasons expressed in my earlier dissenting opinion, I respectfully dissent

from the majority’s opinion in the instant case. See Rodriguez v. State, 91 N.E.3d

1033, 1038-40 (Ind. Ct. App. 2018).

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