COA split on amended sentence modification statute

In an opinion interpreting a sentence modification statute, a divided panel of Indiana Court of Appeals has ruled that a trial court lacked authority to modify a sentence that was entered pursuant to a fixed plea agreement. The majority’s ruling contrasts with the panel’s earlier decision in the same case, which was revisited on remand from the Indiana Supreme Court after a legislative amendment last year.

At issue in State of Indiana v. Pebble Stafford, 39A04-1705-CR-930, are two sets of amendments to Indiana Code Section 35-38-1-17. The first amendment, passed in 2014, included language in subsection (l) that prohibited the waiver of “the right to sentence modification under this section as part of a plea agreement.” Stafford, who pleaded guilty in June 2014 to drug and battery charges, argued that language allowed her to seek a modification of her three consecutive sentences, despite those sentences being imposed pursuant to a fixed plea agreement.

The Jefferson Circuit Court and Indiana Court of Appeals agreed, with the former finding Stafford had been sufficiently rehabilitated and the latter ruling in October 2017 that subsection (l) “plainly stated that a person may not waive the right to sentence modification as part of a plea agreement — any plea agreement [including fixed plea agreements].” Another appellate panel reached a similar decision the following January in Alberto Baiza Rodriguez v. State.

In response to those two rulings, the Indiana Legislature again amended I.C. 35-38-1-17 in 2018 to require that judges obtain the consent of the prosecutor if they wish to modify a fixed plea sentence. The 2018 amendment further provides that the statute “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… .”

Sen. Mike Young, the Indianapolis Republican who authored the 2018 amendments via Senate Enrolled Act 64, said the 2014 amendment was meant only to prohibit explicit sentence modification waivers in plea agreements. But the original Stafford and Rodriguez panels misinterpreted the 2014 language, Young said, so SEA 64 was meant to codify the longstanding practice of not allowing modification of fixed plea sentences without prosecutorial consent.

Meanwhile, the Stafford and Rodriguez decisions went up to the Indiana Supreme Court, which granted transfer and remanded the cases to the COA for reconsideration in light of SEA 64, which was passed in February. On remand, the majority of the panel in Stafford said Thursday that SEA 64 “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.”

Relying partially on former justice and now-Senior Judge Robert Rucker’s dissent in Rodriguez, the panel determined the Jefferson Circuit Court did not have authority to modify Stafford’s sentence for an “other reason” – because I.C. 35-35-3-3(e) bound the trial court to the terms of the plea agreement. The “other reason” language was included in the 2014 amendment.

“Here, the legislature acted swiftly following the decisions in Stafford and Rodriguez,” Judge Robert Altice wrote for the majority joined by Judge L. Mark Bailey. “We can glean from this that the legislature was simply making clear its original intent, and thus, the 2018 amendment to I.C. section 35-38-1-17(e) and (l) did not change the original meaning of the statute. We therefore conclude that the legislature never intended to create a right to modification of fixed sentences imposed under a plea agreement.”

Stafford’s case was remanded for the trial court to reinstate the sentence considered under the plea agreement, which included consecutive terms of six years in the Department of Correction, 30 days in the Jefferson County Jail and four years in community corrections.

“Notably, however, Indiana trial courts retain broad discretion to accept or reject plea agreements,” Altice concluded. “… Thus, if ever desired, a trial court may avoid the instant issue by rejecting a ‘fixed sentence’ plea agreement that fails to authorize sentence modification in the case of changed circumstances.”

But in a separate dissenting opinion, Judge John Baker said he believes the COA’s original Stafford ruling was “right and reasonable,” and he disagreed with the state’s “tortured” interpretation of the 2014 version of the statute.

“First, as to what sentence the trial court is ‘authorized’ to impose at the time of sentencing, the authorization is bound not only by the language of the plea agreement but also by the law,” Baker wrote. “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.”

“… Second, while the State insists that subsection -17(l) does not allow modifications of fixed sentence plea agreements, I disagree,” Baker continued. “The General Assembly could have easily carved out an explicit exception for fixed sentence plea agreements, but it did not do so.”

Turning to the 2018 amendments, Baker said the General Assembly cannot and should not “attempt to retroactively void a court order by statute.” A similar argument was advanced by the majority in the COA’s second review of Rodriguez on remand from the Supreme Court. In the second Rodriguez decision handed down earlier this month, the majority determined SEA 64 was not retroactive, and even if it were, retroactive application would violate Rodriguez’s constitutional contract rights.

As with the original Rodriguez holding, Rucker dissented from the court’s reaffirmation of Rodriguez’s sentence modification.