When a court accepts a fixed-sentence plea agreement, prosecutors and defenders alike say the long-standing practice has been for courts to uphold the exact terms of that sentence, absent an agreement between the parties. A recent Indiana Court of Appeals ruling, however, has seemingly put an end to that practice, leading to both a legislative and judicial review of the sentencing issue.
Questions surrounding courts’ ability to modify fixed plea agreements began when the Court of Appeals handed down its October opinion in State of Indiana v. Pebble Stafford, 86 N.E.3d 190, 193 (Ind. Ct. App. 2017). In that case, the court upheld a trial court’s decision to allow a woman to serve the remainder of her sentence on probation, even though she had been sentenced to incarceration pursuant to a fixed-plea agreement.
In reaching its decision, the court relied on Indiana Code section 35-38-1-17(l), which holds, “A person may not waive the right to sentence modification under this section as part of a plea agreement.” That language came about as part of the 2014 criminal code reform legislation, but legislators are now attempting to clarify the language to correct what they view as a misinterpretation of their intent.
To add the clarity lawmakers say is needed, Sen. Mike Young, R-Indianapolis, has authored Senate Bill 64, which would prohibit courts from modifying a fixed plea agreement without prosecutorial consent. Sen. Aaron Freeman, R-Indianapolis, put forth similar legislation through Senate Bill 199.
The language of SB 64 would hold that, “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 idea is that plea agreements are contractual in nature, Young said, so if an agreement does not originally allow for later modification — which occurs in the case of fixed agreements — then judges are not authorized to modify sentences.
Freeman — who, like Young, is an attorney — told members of the Senate Corrections and Criminal Law Committee that roughly 98 percent of criminal cases result in pleas, and fixed pleas generally mean prosecutors are sacrificing certain charges against an offender in exchange for the assurance that the offender will serve a set jail sentence. Allowing courts to later modify those sentences would strip prosecutors of the benefits they gain by agreeing to drop charges and enter into a plea, he said.
What’s more, victims and their families would lose the assurance a fixed-sentence agreement provides, Indiana Prosecuting Attorneys Council executive director Dave Powell told the committee. Prior to the Stafford ruling, prosecutors could promise their clients that an offender who had wronged them would not get out of jail for a set period of time if a fixed plea was agreed to, Powell said. But if Stafford remains law, then those promises could no longer be made.
Statutory interpretation questions
The Stafford decision goes against longstanding criminal law practices, Young said, and that deviation likely came about as a result of the 2014 criminal code reform. Prior to the reform, statutory language permitted courts to modify a sentence and impose a new sentence “that the court was authorized to impose at the time of sentencing.”
The 2014 legislation added the language prohibiting the waiver of modification “as part of” an agreement, which Young said the court took to mean modification could not be waived in any circumstance, even fixed-sentence agreements. But the intent of that language was to prohibit specific provisions in plea agreements that explicitly waived the right to modification, Larry Landis, executive director of the Indiana Public Defender Council, told the committee.
The state put forth a similar argument in its petition to transfer the Stafford case, which the Supreme Court accepted in December.
“Read properly, this section reinforces the codification of (Pannarale v. State, 638 N.E.2d 1247 (Ind. 1994)) and works consistently with it,” the state wrote in its petition. “It is addressed not to the inherent ramification of a fixed-sentence plea but rather to specific waiver provisions within the terms of the plea agreement that would preclude future modifications that the sentencing terms of the plea otherwise would have allowed.”
The state further argued that had the legislature intended to ban all waivers of sentence modification, the statutory language would have prohibited waiver “by means of” an agreement, rather than “as part of” it. Additionally, subsection (l) “does not prohibit the finding of a waiver of the right to sentence modification for any other reason.” That “other reason” includes fixed plea agreements, the state claimed.
The appellate court, however, dismissed that argument as a “tortured interpretation of the plain statutory language.” Stafford’s counsel likewise argued the 2014 statutory language has only one clear meaning.
“The statute plainly authorizes the trial Court to modify even ‘fixed’ or ‘agreed upon’ sentences, as it expressly authorizes modification of a Defendant’s sentence without the prosecutor’s consent, expressly forbids waiver of sentence modifications in plea agreements, and expressly states that provisions which waive the right to a sentence modification, included in plea agreements, are a violation of public policy in Indiana,” Stafford’s counsel, Jason J. Pattison, wrote in an appellee’s brief.
Though prosecutors and defense counsel agree the statutory language needs additional clarity, some concerns have been raised about SB 64.
For example, Landis told the committee the proposed language could be broadly read to require prosecutorial consent even for open plea agreements. The Indiana Judges Association also advocated for a clearer definition of what a “plea agreement” is in the context of the bill.
Further, Senate Minority Leader Tim Lanane, D-Anderson, expressed concern about whether defendants who enter into fixed plea agreements are aware of the implications of such an agreement. Chris Eskew, founder of criminal defense firm Eskew Law, said defense attorneys have an obligation to make sure their clients understand that a fixed plea generally means modifications will not be available. Similarly, clients have a duty to ask questions if they do not understand what they are agreeing to, Eskew said.
To ensure clients have a full understanding of their pleas and to ease Lanane’s concerns, the committee unanimously passed an amendment requiring courts to advise defendants that they will be bound by the terms of the agreement “both at the time of sentencing and with respect to sentence modification.”
While attorneys await guidance from the legislature and/or the Supreme Court on when sentences can be modified, the Stafford ruling is already beginning to take hold in Indiana’s judicial community.
In its Jan. 11 decision in Alberto Baiza Rodriguez v. State of Indiana, 20A03-1704-CR-724, the appellate court once again upheld a sentence modification in a fixed-plea situation, relying on Stafford to reach its decision. But former justice and now-Senior Judge Robert Rucker dissented from that ruling, writing “it does not appear the Legislature intended to repeal long-standing statutory authority or to overrule long-standing judicial precedent by the enactment of Ind. Code section 35-38-1-17 (l).”
The Rodriguez ruling signifies the need for either the legislature or the court to act on the issue, Young said. Eskew agreed, saying that if Stafford remains law, criminal sentencing practices will dramatically change.
The Supreme Court will hear oral arguments in Stafford at 9:45 a.m. on Jan. 25.•