MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Jan 30 2019, 8:04 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Horacio Lopez Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Horacio Lopez, January 30, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-786
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Appellee-Plaintiff. Christofeno, Judge
Trial Court Cause No.
20C01-0907-FA-19
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-786 | January 30, 2019 Page 1 of 10
Case Summary
[1] Horacio Lopez appeals the denial of his motion to modify his sentence, which
was imposed pursuant to a fixed sentence plea agreement. We affirm.
Issue
[2] Lopez raises two issues on appeal, which we consolidate and restate as:
Whether the trial court erred in denying Lopez’s motion for
sentence modification by enforcing the express terms of Lopez’s
fixed sentence plea agreement, wherein Lopez waived his right to
sentence modification until 2021.
Facts
[3] On July 20, 2009, the State charged Lopez with six counts of dealing in cocaine
or a narcotic, Class A felonies. In October 2009, Lopez entered into a fixed
sentence plea agreement with the State. Lopez agreed to plead guilty to two
counts of dealing cocaine, Class A felonies, and the State agreed to dismiss the
remaining four counts. The plea agreement expressly provided: “The
Defendant shall serve an executed sentence of thirty-five years at the Indiana
Department of Correction. All other terms shall be left to the Court. The State
grants the Defendant/Court jurisdiction (jurisdiction only) to consider
modification with regard to time and placement during calendar year of 2021.”
App. Vol. II p. 16. The trial court approved the plea agreement and imposed
two, concurrent thirty-five-year sentences.
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[4] On January 24, 2018, Lopez filed a motion for sentence modification. The
Department of Correction submitted a progress report on February 12, 2018.
On February 19, 2018, the trial court found that it lacked jurisdiction to modify
Lopez’s sentence until 2021 and denied Lopez’s motion. Lopez now appeals.
Analysis
[5] Lopez argues that the trial court erred in denying his motion for modification of
sentence because Indiana Code Section 35-38-1-17 “plainly authorizes the
modification of a ‘fixed’ or ‘agreed upon’ sentence.” Appellant’s Br. p. 12. We
review a trial court’s decision regarding modification of a sentence for an abuse
of discretion. Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015),
trans. denied. An abuse of discretion occurs when the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court. Id.
[6] Lopez argues that, by finding that the plea agreement precluded modification of
his sentence until 2021, the trial court permitted a blanket waiver of his right to
sentence modification in violation of Indiana Code Section 35-38-1-17. At issue
here is the interplay between Indiana Code Section 35-35-3-3(e) and Indiana
Code Section 35-38-1-17(l).
[7] Indiana Code Section 35-35-3-3(e) states: “If the court accepts a plea agreement,
[the court] shall be bound by its terms.” Berry v. State, 10 N.E.3d 1243, 1246
(Ind. 2014); see Vaughn v. State, 982 N.E.2d 1071, 1073 (Ind. Ct. App. 2013)
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(“A plea agreement is contractual in nature, binding the defendant, the State
and the trial court.”).
[8] When Lopez filed his motion for sentence modification in January 2018,
Indiana Code Section 35-38-1-17, which governs reduction or suspension of
sentence, provided, in part, as follows:
...
(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. 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 sentence modification for any other reason,
including failure to comply with the provisions of this section.
I.C. § 35-38-1-17.
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[9] Indiana Code Section 35-38-1-17 has undergone two noteworthy amendments
in recent years. In 2014, our legislature amended Indiana Code Section 35-38-
1-17 (“the 2014 amendment”) to add the following language, which is presently
codified in 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.
I.C. § 35-38-1-17(l); see I.C. § 35-38-1-17(i)(2014).
[10] Subsequently, we applied the 2014 amendment in deciding the appeal in State v.
Stafford, 86 N.E.3d 190 (Ind. Ct. App. 2017) (“Stafford I”), trans. granted.
Stafford pleaded guilty pursuant to a fixed sentence plea agreement that
purported to waive her right to sentence modification. Stafford subsequently
moved for and was granted a sentence modification. In affirming the trial
court’s judgment on appeal, we found that, “in light of our legislature’s 2014
amendment to Indiana Code Section 35-38-1-17, Stafford did not waive her
right to sentence modification by entering into a fixed plea agreement, and thus,
the trial court was authorized to modify her sentence without approval of the
prosecutor.” See State v. Stafford, No 39A04-1705-CR-930, slip. op. at p. 1 (Dec.
27, 2018) (“Stafford II”).
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[11] In the same vein, in Rodriguez v. State, 91 N.E.3d 1033 (Ind. Ct. App. 2018)
(“Rodriguez I”), Rodriguez pleaded guilty pursuant to a fixed sentence plea
agreement and agreed to serve a seventy-two-month term in the Department of
Correction on work release. Subsequently, Rodriguez moved for sentence
modification; he alleged family hardship from his incarceration and sought
modification of his sentence to home detention. The trial court found that it
lacked authority to modify Rodriguez’s sentence because the court was bound
by Rodriguez’s agreement with the State to serve his sentence on work release
and denied Rodriguez’s motion. We reversed on appeal and found that, in light
of the 2014 amendment, modification of Rodriguez’s sentence was permissible.
Senior Judge Rucker wrote a dissenting opinion, which we discuss below.
[12] Our legislature responded by amending Indiana Code Section 35-38-1-17 (“the
2018 amendment”), effective July 1, 2018. As amended, with the added
language shown in italics, the statute provides as follows:
(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
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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
(2) sentence modification for any other reason, including
failure to comply with the provisions of this section.
I.C. §§ 35-38-1-17(e), 35-38-1-17(l) (emphasis added).
[13] Our supreme court granted transfer in Stafford I and remanded for our
reconsideration in light of the 2018 amendment. On remand in Stafford II, we
opined as follows:
Through its amendment, the legislature made a definitive
statement that trial courts are not authorized to modify sentences
that were imposed by virtue of a plea agreement unless the
agreement itself contemplated such a modification and/or the
prosecuting attorney agrees to the modification. In other words,
it is now clear that the sentencing parameters of a plea agreement
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continue to bind a trial court during subsequent modification
proceedings.
Stafford II, No. 39A04-1705-CR-930, slip. op. at p. 3; see I.C. § 35-35-3-3(e). The
Stafford II panel, thus, reversed the trial court and remanded for reinstatement of
Stafford’s original sentence. See Stafford II, No. 39A04-1705-CR-930, slip. op. at
p. 4.
[14] As in Stafford I, our supreme court granted transfer in Rodriguez I and remanded
for our reconsideration in light of the legislature’s 2018 amendments to Indiana
Code Section 35-38-1-17. On remand, we reaffirmed our holding and found
that retroactive application to Rodriguez of the 2018 amendments would be
fundamentally unfair and would violate the contract clause of the United States
Constitution. See Rodriguez v. State, No. 20A03-1704-CR-724, slip. op. at pp. 7-8
(Ind. Ct. App. Dec. 14, 2018) (“Rodriguez II”). Senior Judge Rucker dissented
on the same grounds as in his Rodriguez I dissent.
[15] For purposes of our analysis here, Senior Judge Rucker’s dissenting opinion in
Rodriguez I is instructive. Senior Judge Rucker reasoned that Indiana Code
Section 35-35-3-3(e) and Indiana Code Section 35-38-1-17(l) may be
harmonized as follows:
[T]he third sentence of Indiana Code [S]ection 35-38-1-17(l)
makes clear that the statute “does not prohibit the finding of
waiver of the right to sentence modification for any other reason.”
This language is not in irreconcilable conflict with Indiana Code
[S]ection 35-35-3-3(e) which declares “[i]f the court accepts a plea
agreement, it shall be bound by its terms.” Id. * * * * *
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Here, the conflicting provisions of the two statutes may be
harmonized in a way that gives effect to both. In particular, the
trial court lacked the authority to modify Rodriguez’s sentence
from work release to home detention not because of a “waive[r]
to the right of sentence modification . . . as part of a plea
agreement.” Ind. Code § 35-38-1-17(l). Instead, the trial court
lacked such authority for a wholly different reason- or in the
language of the statute[-] “for any other reason”—namely:
because of the bargain Rodriguez struck with the State of Indiana
that his sentence would be served with a specific entity. More
specifically, Rodriguez agreed to serve a precise sentence . . . .
Rodriguez was bound by his agreement with the State, and
having accepted the parties’ agreement the trial court was bound
as well.
Rodriguez I, 91 N.E.3d 1033, 1039 (Ind. Ct. App. 2008), trans. granted (citations
omitted).
[16] We find Senior Judge Rucker’s reasoning to be persuasive and agree that,
although Indiana Code Section 35-38-1-17(l) prohibits a plea agreement from
containing express language that purports to waive an offender’s right to
sentence modification, the statute does not prohibit a finding of waiver on other
grounds.” Id. (emphasis added). From our reading, Indiana Code Section 35-
38-1-17(l) prohibits wholesale or blanket waivers of the right to sentence
modification. Stated differently, in light of Indiana Code Section 35-38-1-17(l),
a plea agreement cannot properly provide, for instance, that “Offender X is per
se ineligible for sentence modification.” Indiana Code Section 35-38-1-17(l)
does, however, allow for a finding of waiver “on other grounds,” such as a
finding of waiver pursuant to a fixed sentence plea agreement. See id.
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[17] Here, in exchange for the State’s dismissal of four pending Class A felonies,
Lopez agreed (1) to serve a thirty-five-year sentence and (2) that he would not
be eligible for a sentence modification until 2021. Bound by the terms of
Lopez’s fixed sentence plea agreement, the trial court correctly found that it
lacked authority to modify Lopez’s sentence in light of the bargain that Lopez
had struck with the State. We agree with Senior Judge Rucker and with the
Stafford II panel that Indiana Code Section 35-38-1-17(l) does not prohibit a
finding of waiver of sentence modification under this circumstance. The trial
court’s decision to deny Lopez’s motion for sentence modification is not clearly
against the logic and effect of the facts and circumstances before the court.
Conclusion
[18] The trial court did not abuse its discretion in denying Lopez’s motion for
sentence modification. We affirm.
[19] Affirmed.
[20] Brown, J., and Altice, J., concur.
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