Gary Amick v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 8, 2018
• Docket: 18A-CR-1027
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Nov 08 2018, 8:18 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Gary Amick Curtis T. Hill, Jr. Branchville, Indiana Attorney General of Indiana

Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gary Amick, November 8, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1027 v. Appeal from the Scott Circuit Court State of Indiana, The Honorable Roger L. Duvall, Appellee-Plaintiff. Judge Trial Court Cause Nos. 72C01-1512-F5-63 72C01-1405-FA-7

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018 Page 1 of 5 Case Summary [1] Gary Amick entered into a plea agreement with the State which provided for a

fixed sentence of eight years of incarceration and was sentenced accordingly.

On January 15, 2018, Amick moved for modification of sentence, which

motion was denied. Amick contends that the trial court erred in denying his

motion for modification. Because we disagree, we affirm.

Facts and Procedural History [2] On August 15, 2016, pursuant to a plea agreement, Amick pled guilty to a

Level 5 felony possession of a handgun without a license under cause number

72C01-1512-F5-63 (“Cause No. F5-63”) and a Class C felony dealing in a

scheduled IV controlled substance under cause number 72C01-1405-FA-7

(“Cause No. FA-7”). The plea agreement provided for a fixed term of four

years of incarceration in Cause No. F5-63 and a fixed term of four years of

incarceration in Cause No. FA-7, to be served consecutively. In exchange for

Amick’s plea, the State agreed to dismiss numerous additional counts in each

cause.1 On September 12, 2016, the trial court sentenced Amick pursuant to the

plea agreement. On January 15, 2018, Amick moved to modify his sentence,

which motion the trial court denied. The trial court found that Amick was

1 The State dismissed nine counts in F5-63, three counts in FA-7, and a petition to revoke Amick’s suspended sentence in another cause.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018 Page 2 of 5 sentenced pursuant to the terms of the plea agreement and was therefore not

entitled to modification.

Discussion and Decision [3] Amick contends that the trial court erred in denying his motion for

modification of sentence. Amick asserts that, pursuant to Indiana Code section

35-38-1-17, he was eligible for, and the trial court could have granted,

modification of his sentence. Amick also contends that he could not have

waived his right to seek modification in the plea agreement under the statute.

As an initial matter, because the trial court never found that Amick waived his

right to seek modification, we do not address that claim. We review the trial

court’s decision concerning 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 or

when the court misinterprets the law.” Id. Where parties differ as to the

interpretation of a statute, which is a question of law, we review the trial court’s

decision interpreting such statute de novo. Id.

[4] Plea agreements are contractual in nature, binding the defendant, the State, and

the trial court once the trial court accepts it. St. Clair v. State, 901 N.E.2d 490,

492 (Ind. 2009). Once the trial court accepts the plea agreement, it possesses

only the amount of sentencing discretion provided for in the agreement. Id. at

493. A plea agreement may be modified by statute

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018 Page 3 of 5 [a]t any time after a convicted person begins serving the person’s sentence; and 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 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.

Ind. Code § 35-38-1-17(e) (emphasis added).

[5] Although Amick contends that the trial court could have modified his sentence

because of his eligibility pursuant to Indiana Code section 35-38-1-17, he bases

his argument on case law that has been vacated by the Indiana Supreme Court.

See Rodriguez v. State, 100 N.E.3d 696 (Ind. 2018) (vacating the Court of

Appeals’s opinion and remanding for further proceedings consistent with recent

changes made to Indiana Code section 35-38-1-17 regarding the modification of

sentences imposed pursuant to plea agreements). Indiana Code section 35-38-1-

17 is clear that if a trial court chooses to modify a defendant’s sentence, it may

only impose a sentence that it could have imposed at the time of sentencing.

The plea agreement that Amick and the State agreed to, and the trial court

accepted, provided for a fixed sentence of eight years. No other sentence was

authorized by the plea agreement. Therefore, the trial court could not modify

Amick’s sentence because the eight-year sentence was the only one it was

authorized to impose. Rivera v. State, 851 N.E.2d 299, 301 (Ind. 2006). Amick

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018 Page 4 of 5 has failed to establish that the trial court erred in denying his motion for

modification of sentence.

[6] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1027 | November 8, 2018 Page 5 of 5