Divided COA again allows sentence modification in fixed-sentence agreement

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A divided panel of the Indiana Court of Appeals has ordered a trial court to reconsider a sentence modification for an offender who agreed to a fixed-sentence plea agreement, a ruling that goes against proposed legislation currently pending before an Indiana Senate committee. However, in his first writing as an appellate senior judge, former Indiana Supreme Court Justice Robert Rucker dissented from the majority ruling.

After being charged with multiple charges related to drunk driving, Alberto Rodriguez pleaded guilty to Class A misdemeanor operating while intoxicated and to being a habitual vehicular substance offender. The agreement required Rodriguez to serve six years on the Elkhart County Work Release program in exchange for the state dropping all other charges against him.

The Elkhart Superior Court accepted the agreement in January 2016, but Rodriguez moved for a modification one year later, alleging his placement had caused undue hardship on his family. The trial court denied Rodriguez’s motion, finding Indiana statute deprived the court of authority to modify the fixed-sentence plea agreement.

But a divided panel of the Indiana Court of Appeals reversed that denial Thursday in Alberto Baiza Rodriguez v. State of Indiana, 20A03-1704-CR-724, with Judge Terry Crone writing for the majority joined by Judge Paul Mathias that Indiana Code section 35-38-1-17(l) does not permit a person to “waive the right to sentence modification under this section as part of a plea agreement.” Crone also noted the agreement allowed the trial court to modify Rodriguez’s sentence only if he became incarcerated, which he did 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,” Crone wrote. “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.”

Thus, the majority determined section (l), when harmonized with sections 35-35-3-3(e) and 35-38-1-17(e) preserves a defendant’s right to modification in fixed plea agreements. The majority remanded Rodriguez’s case for further proceedings, also drawing on precedent from State v. Stafford, 86 N.E.3d 190, 193 (Ind. Ct. App. 2017).

The Stafford court held that, “Unless and until the General Assembly clarifies the statute at issue, it clearly and unambiguously states that offenders ‘may not waive the right to sentence modification … as part of a plea agreement.’” The General Assembly is currently taking steps to offer that clarification through Senate Bill 64, which would allow modifications of fixed-sentence agreements only with prosecutorial consent.

Former Justice and now Senior Judge Robert Rucker also disagreed with the ruling that fixed plea agreements may be modified, pointing to language in section (l) that holds the statute “does not prohibit the finding of waiver of the right to sentence modification for any other reason” not included “as part of the plea agreement.”

“In particular, the trial court lacked the authority to modify Rodriguez’s sentence from work release not because of a ‘waive(r) to the right of sentence modification … as part of a plea agreement,’” Rucker wrote. “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.”

“In essence, it does not appear the Legislature intended to repeal long-standing statutory authority or to overrule long-standing judicial precedent by the enactment of (section (l)),” Rucker wrote, echoing the arguments put forth by supporters of SB 64.

The Senate Corrections and Criminal Law Committee is currently considering SB 64, while Stafford will go before the Indiana Supreme Court for oral arguments on Jan. 25.

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