ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Victoria L. Bailey
Attorney General of Indiana Indianapolis, Indiana
Cynthia L. Ploughe
Deputy Attorney General
FILED
Indianapolis, Indiana
______________________________________________________________________________
May 26 2011, 3:17 pm
In the
CLERK
Indiana Supreme Court of the supreme court,
court of appeals and
tax court
_________________________________
No. 49S05-1105-PC-305
STATE OF INDIANA,
Appellant (Plaintiff below),
V.
CHARLES BOYLE,
Appellee (Defendant below).
_________________________________
Appeal from the Marion County Superior Court, No. 49F18-9709-PC-137207
The Honorable Reuben Hill, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, 49A05-0911-PC-627
_________________________________
May 26, 2011
David, Justice.
On the defendant‟s petition for post-conviction relief, the trial court modified the
defendant‟s conviction several years after the case had concluded. The Court of Appeals
overturned the trial court on grounds that the trial court lacked statutory authority to modify the
conviction and ordered the original conviction to be reinstated. We agree with the Court of
Appeals and grant transfer and reverse the trial court‟s order. We hold it is in violation of
statutory authority to modify the conviction under the circumstances of this case. We remand to
the trial court to reinstate the original conviction.
Facts and Procedural History
In September 1997, the State charged Charles Boyle with operating a motor vehicle while
a habitual traffic offender as a Class D felony, and failing to stop after an accident resulting in
personal injury as a Class A misdemeanor. In June 1999, the State and Boyle entered into a plea
agreement and Boyle pled guilty to operation of a motor vehicle while a habitual traffic offender.
The State agreed to make the following recommendations: “Open Argument as to AMS, 365
days / 365 days susp., 365 days probation, drivers license suspended for life, restitution to
Tamkia Dominquez.”
In September 1999, the trial court judge accepted the plea and entered judgment of
conviction. We note that the transcripts of the plea and sentencing hearing from 1999 are not
available. Boyle filed both a “Verified Petition for Post Conviction Relief” on October 17, 2008,
and a “Petition for Modification of Sentencing from „D‟ Felony to Alternate Misdemeanor
Sentence” in February 2009. In February 2009, Judge Maryann Oldham heard the first
arguments. At the hearing, counsel for Boyle stated,
We praeciped for the transcript of the hearing which they could not find, so the
only thing I can say as to whether or not he would be getting A.M.S. on the
backend if he completed probation successfully is always been—always has been
Judge Hill‟s1 policy to do so.
The State countered Boyle‟s argument by saying,
The plea agreement itself said open to argument as to A.M.S. which implies that
the State could contest A.M.S. Also in the Court‟s file there is copy of the
certification of Indiana abstracts court record. That shows that Petitioner‟s
driving privileges were suspended for life which also is indicative of a D Felony
with no A.M.S.
Judge Oldham set the matter for Judge Hill‟s calendar.
In September 2009, Boyle submitted a memorandum in support of his motion arguing
that “pursuant to I.C. 35-38-1-1.5(a), a court may enter judgment of conviction as a Class D
felony with the express provision that the conviction will be converted as a Class A
1
Much of Boyle‟s argument was premised on Judge Hill sentencing Boyle in September 1999. However, the CCS
entry reveals that Judge Elizabeth Christ sentenced Boyle on September 2, 1999. Thus, Boyle‟s argument of Judge
Hill‟s policy regarding A.M.S. is not compelling.
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misdemeanor within three (3) years if the person fulfills certain conditions,” that, pursuant to
Indiana Code section 35-38-1-1.5(d), the court “shall” modify the conviction to a Class A
misdemeanor “if the person fulfills the conditions,” and that Boyle fulfilled the conditions “and
even did so earlier than expected as evidenced by the successful early termination by the
probation department.” Shortly thereafter, the State filed its memorandum and argued that “the
1999 Guilty Plea agreement states that the parties would argue the issue of AMS, which shows
that the State did not agree to AMS.” The State further argued that Indiana Code section 35-38-
1-1.5 “was not in effect at the time of [Boyle‟s] sentencing,” due to it being added by P.L. 98-
2003. The State argued further that if Boyle could avail himself of Indiana Code section 35-38-
1-1.5, it requires the consent of the prosecuting attorney and requires the conversion within three
years.
In October 2009, Judge Hill conducted a hearing in the matter. Boyle testified under oath
that at the time of the sentencing the judge promised alternative misdemeanor sentencing upon
his successful completion of probation. We quote the trial court as follows:
Well see, I don‟t know if the Court promised him A.M.S. or not. The file does
not indicate that. And generally there is an entry made to that effect. Sometimes
I can look at the criminal history and tell if the Court would have favorably
considered A.M.S. But his criminal history really doesn‟t indicate that the Court
would make that kind of consideration. But I believe that if the Court is going to
sit in judgment on every case that comes before it and try to be fair that it must in
the light of or the absence of evidence to the contrary, just give the benefit of the
doubt to the Defendant. . . . [Boyle‟s] request is granted over the objection of the
State.
Modification of Conviction
The sole issue is whether the trial court erred in granting Boyle‟s petition for
modification of his conviction for operation of a motor vehicle while a habitual traffic violator as
a Class D felony to a Class A misdemeanor. We agree with the State and the Court of Appeals
that the trial court improperly granted Boyle‟s request. For the reasons explained in State v.
Brunner, No. 57S04-1010-CR-603, _____ N.E.2d _____ (Ind. May 26, 2011), also decided
today, we hold that the trial court erred in modifying Boyle‟s conviction from a Class D felony to
a Class A misdemeanor.
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As we held in Brunner, the applicable statute at the time of the conviction was Indiana
Code section 35-50-2-7 (1998). Indiana Code section 35-50-2-7(b) states, “if a person has
committed a Class D felony, the court may enter judgment of conviction of a Class A
misdemeanor and sentence accordingly.” In interpreting statutes, we take words and phrases in
their plain and usual meaning. Ind. Code § 1-1-4-1(1) (2005). As such, we hold that 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. As we held in Brunner, the language of the
statute itself described the specific timeframe codified for this action of entering conviction 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.” Ind. Code § 35-50-2-7(b)
(emphasis added). The judgment of conviction is entered first, and then the sentence is handed
down.
As we noted in Brunner, pursuant to Indiana Code section 35-38-1-1.5, enacted under
P.L. 98-2003, the trial court could enter a conviction as a misdemeanor, but it must be entered
within three years of the entry of judgment, all parties must agree to the conditions, and the
defendant must meet those agreed upon conditions. We note, as the Court of Appeals correctly
found that neither a copy of Boyle‟s sentencing order is in the record, nor does the CCS entry
mention the possibility of modifying his sentence from a Class D felony to a Class A
misdemeanor. Furthermore, as stated in the facts, the State did not consent to a misdemeanor
sentence. And finally, even if Boyle would have been availed of Indiana Code section 35-38-1-
1.5, the trial court would have to modify the conviction within three years. As we held in State
v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001), “the fact that the sentencing judge particularly
reserved . . . the right to modify this sentence, [pursuant to Indiana Code section 35-38-1-17] is
of no moment,” because the sentencing court was seeking to use power it was not granted. “A
sentencing judge cannot circumvent the plain provisions in the sentence modification statute
simply by declaring that he or she reserves the right to change the sentence at any future time.”
Id.
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Conclusion
The plain meaning of Indiana Code section 35-50-2-7(b), as well as the meaning taken in
context with Indiana Code section 35-38-1-1.5, shows that the trial court erred in granting
Boyle‟s motion for modification of conviction. We grant transfer and reverse the trial court and
remand with instructions for the trial court to reinstate the original judgment of conviction.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
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