MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 09 2018, 9:41 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT APPELLEE PRO SE Curtis T. Hill, Jr. Alan Jenkins Attorney General of Indiana Pendleton, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
State of Indiana, February 9, 2018 Appellant-Respondent, Court of Appeals Case No. 41A04-1707-CR-1517 v. Appeal from the Johnson Superior Court Alan Jenkins, The Honorable Kevin M. Barton, Appellee-Petitioner. Judge Trial Court Cause No. 41D01-0402-FA-1
Mathias, Judge.
[1] The State of Indiana appeals the order of the Johnson Superior Court granting a
petition filed by Alan Jenkins (“Jenkins”) seeking to modify his sentence. On
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 1 of 18 appeal, the State argues that the applicable sentence modification statute does
not authorize a court to modify a sentence imposed pursuant to a fixed-sentence
agreement without an express reservation of such authority in the agreement.
We agree with the State and therefore reverse the order of the trial court and
remand with instructions to impose the agreed-upon sentence.
Facts and Procedural History [2] As we briefly set forth in Jenkins’s direct appeal: “In the winter of 2002,
Jenkins’s sister . . . and her twelve-year-old daughter, G.P., moved in with
Jenkins. Shortly thereafter, Jenkins and G.P. began engaging in sexual
intercourse and oral sex that was often accompanied with drug and alcohol
use.” Jenkins v. State, No. 41A01-0502-CR-67, slip op. at 3 (Ind. Ct. App. June
28, 2005) (“Jenkins I”). A more detailed description was given in our decision
affirming the trial court’s partial denial of Jenkins’s subsequent petition for post-
conviction relief:
In the winter of 2002, Jenkins’s sister, S.P., and her twelve-year- old daughter, G.P., moved in with Jenkins. During the following two to three months, Jenkins’s relationship with G.P. changed from an “uncle/niece relationship,” to being friends, and then to a “boyfriend/girlfriend relationship.” Jenkins and G.P., who was in sixth grade at the time, regularly engaged in sexual intercourse and oral sex, activities that were often accompanied by alcohol and drug use. G.P. would steal liquor and cigarettes from drugstores, and Jenkins would sometimes drive her to the stores. The two spent a great deal of time together, often because G.P. was skipping school. At some point, the two “started doing ‘crack’ together.”
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 2 of 18 Jenkins v. State, No. 41A01-1502-PC-77, 2015 WL 5970434, slip op. at 2–3 (Ind.
Ct. App. Oct. 14, 2015) (“Jenkins II”) (citations omitted).
[3] Following a jury trial in May 2004, Jenkins was convicted of two counts of
Class A felony child molesting and determined to be a habitual offender. Id. at
5. The jury acquitted Jenkins of another count of Class A felony child molesting
and Class A felony contributing to the delinquency of a minor. Id. at 5–6. The
trial court sentenced Jenkins to two terms of thirty-five years for the child
molesting convictions and an additional thirty-year term for being a habitual
offender, all to be served consecutively, for an aggregate sentence of 100 years.
[4] On direct appeal, Jenkins claimed only that his sentence was improper because
the trial court, when imposing sentence, relied on facts that were not found by
the jury, in violation of his Sixth Amendment rights as outlined in the then-
recent case of Blakely v. Washington, 542 U.S. 296 (2004). We rejected Jenkins’s
Blakely claim, but we remanded with instructions that the trial court attach the
habitual offender enhancement to one of the sentences imposed on the Class A
felony convictions. Jenkins I, slip op. at 6.
[5] In 2006, Jenkins filed a petition for post-conviction relief claiming ineffective
assistance of trial counsel and ineffective assistance of appellate counsel. After
numerous continuances and other delays, the post-conviction court finally held
evidentiary hearings on Jenkins’s petition on November 28, 2012, May 29,
2013, and September 17, 2013. On February 6, 2015, the post-conviction court
entered an order denying Jenkins’s petition for the most part, but partially
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 3 of 18 granting relief on grounds that Jenkins’s appellate counsel failed to inform him
when the opinion of this court on direct appeal had been issued, thereby
depriving Jenkins of the opportunity to seek transfer to the Indiana Supreme
Court. The post-conviction court was of the opinion that there was a reasonable
probability that our supreme court would have granted transfer and reduced
Jenkins’s sentence under Appellate Rule 7(B). See Appellant’s App. p. 24.
Accordingly, the post-conviction court determined that “the relief to which
[Jenkins] is entitled for his Petition for Post-Conviction Relief is for correction
of sentence. The issue is whether the aggregate sentence of one hundred (100)
years executed is an appropriate sentence.” Id. at 25. The court then ordered
Jenkins to be re-sentenced after a new sentencing hearing.
[6] At the May 17, 2016 re-sentencing hearing, the State indicated that it and
Jenkins’s counsel had reached an agreement as to what Jenkins’s sentence
should be. Jenkins’s counsel confirmed this, stating, “[w]e do have a[n] agreed
resolution as to what the appropriate sentence would have been at the time.”
Re-sentencing Tr. p. 4. Jenkins’s counsel then continued:
[Jenkins] was found guilty of Counts II and Counts III. In the original order those were to be run consecutively. Based on the agreement, those would . . . run concurrently and Count V which was the habitual offender enhancement which did attach to Count II by law is required to run consecutive, so aggregately his sentence would be 65 years[.]
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 4 of 18 Id. at 4–5. When asked by his counsel if this was his understanding, Jenkins
indicated in the affirmative. The trial court then confirmed that Jenkins
understood the agreement:
Representation has been made by [the prosecutor] and [defense counsel] that they have entered into discussion and, with consultation with you, and it’s my understanding that the result of that discussion is that . . . they have agreed to change one word in the Sentencing Order and I believe that one word would be that the sentences upon the two Counts would run then concurrent as opposed to consecutive. So the word change would be to change consecutive to concurrent. [T]hereby reducing the sentence from a total of one hundred years to sixty-five years. [I]s that your understanding of the agreement that you have entered into with the State of Indiana?
Id. at 8. Jenkins again responded in the affirmative. The trial court then
questioned Jenkins and ensured that his agreement was his own free and
voluntary act and that nothing else had been said or done to coerce him into
entering into the agreement. The exchange between Jenkins and the court
continued:
THE COURT: And do you understand that . . . if the sentence is then modified in accordance with that agreement effectively then the issue is then resolved and that is then the sentence that you will then, the final sentence so to speak? MR. JENKINS: Yes, I understand that. THE COURT: . . . [B]ut you understand that you have no obligation to accept that agreement and that if it is your desire you could ask that [defense counsel] proceed to re-sentencing today
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 5 of 18 MR. JENKINS: I understand that. THE COURT: And you understand that if that were the case, then obviously I would listen to what you, what [defense counsel] would have to say, what, what you would have to say and what the State’s contentions . . . , but in that event that decision would be mine and mine alone, you understand that? MR. JENKINS: Yes. THE COURT: And you understand that to that extent the agreement then takes away that discretion from me and basically you are . . . then bound by the terms of that agreement? MR. JENKINS: Yes. THE COURT: Ok. With that all being said, is that what you wish to do?
MR. JENKINS: Yes sir.
Id. at 9–10 (emphasis added). The court then accepted the agreement and re-
sentenced Jenkins according to the terms thereof, i.e., two concurrent terms of
thirty-five years with a thirty-year habitual offender enhancement, for an
aggregate term of sixty-five years.
[7] On January 12, 2017, Jenkins filed a petition to modify his sentence. The State
responded on April 17, 2017, objecting to Jenkins’s petition, arguing that
Jenkins’s request required the approval of the prosecuting attorney and that
Jenkins could not seek modification because he had entered into an agreement
with the State regarding his sentence. The trial court held a hearing on Jenkins’s
petition on April 19, 2017, and on August 10, 2017, entered an order granting
Jenkins’s petition. In its order, the trial court reduced the concurrent sentences
imposed on the Class A felony convictions from thirty to twenty years; the
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 6 of 18 habitual offender enhancement remained at thirty years. Thus, Jenkins’s
sentenced was reduced to an aggregate of fifty years. The State now appeals.1
Standard of Review [8] The State argues that the trial court erred in granting Jenkins’s petition to
modify his sentence. Generally, a trial court’s ruling on a defendant’s petition to
modify is subject to review only for an abuse of discretion. Carr v. State, 33
N.E.3d 358, 358 (Ind. Ct. App. 2015), trans. denied. Here, however, the State
does not argue that the trial court abused its discretion in modifying Jenkins’s
sentence; it argues that the trial court lacked authority to modify Jenkins’s
sentence as a matter of law. Thus, the State claims that the trial court
misinterpreted the sentence modification statute. Courts on appeal review issues
of statutory interpretation de novo because they present questions of law. See
State v. Harper, 8 N.E.3d 694, 696 (Ind. 2014) (because State claimed trial court
lacked statutory authority to modify sentence as a matter of law, court’s review
was de novo).
[9] Our goal in construing a statute is to determine, give effect to, and implement
the intent of our General Assembly. Alvey v. State, 10 N.E.3d 1031, 1033 (Ind.
Ct. App. 2014), aff’d on reh’g, 15 N.E.3d 72. To determine the intent of the
legislature, we examine the statute as a whole and also read sections of an act
together so that no part is rendered meaningless if it can be harmonized with
1 The State has the authority to appeal the trial court’s order. See Hardley v. State, 905 N.E.2d 399, 404 (Ind. 2009) (holding that the State has the authority to challenge erroneous sentences on appeal if “the issue is a pure question of law and does not require resort to evidence outside the appellate record.”).
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 7 of 18 the remainder of the statute. Id. We presume that the legislature intended that
the language used in the statute be applied logically and not to bring about an
unjust or absurd result. Id. The best evidence of legislative intent is the language
of the statute itself. Id. Thus, we must give all words their plain and ordinary
meaning unless otherwise indicated by statute. Id. When the language in a
statute is ambiguous or uncertain, we may look not only to the language, but
also to the nature and subject matter of the act and the object to be
accomplished thereby in ascertaining the legislative intent. Id. If, however, the
statutory language is clear and unambiguous on its face, we will give such a
statute its apparent and obvious meaning. Id.
The Sentence Modification Statute [10] A trial court generally has no authority over a defendant after sentencing unless
such authority is conferred by statute. State v. Harper, 8 N.E.3d 694, 696 (Ind.
2014). One such statute is the sentence modification statute, which gives trial
courts authority under certain circumstances to modify a sentence after it is
imposed. The sentence modification statute,2 with the most relevant parts
emphasized, reads as follows:
2 The applicable version of the statute is that in effect at the time the petition to modify was filed. Moore v. State, 30 N.E.3d 1241, 1245–46 (Ind. Ct. App. 2015).
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 8 of 18 (a) Notwithstanding IC 1-1-5.5-21,[3] this section applies to a person who: (1) commits an offense; or (2) is sentenced; before July 1, 2014.
(b) This section does not apply to a credit restricted felon.
(c) Except as provided in subsections (k) and (m), this section does not apply to a violent criminal.
(d) As used in this section, “violent criminal” means a person convicted of any of the following offenses: *** (10) Child molesting (IC 35-42-4-3).[4] ***
(e) At any time after: (1) a convicted person begins serving the person’s sentence; and (2) the court obtains a report from the department of correction concerning the convicted person’s conduct while imprisoned;
3 Indiana Code section 1-1-5.5-21, is a “savings clause,” which provides that the provisions of the revised criminal code do not apply to the “penalties incurred,” “crimes committed,” or “proceedings begun,” before the effective date of the revised code. The 2015 amendments to the sentence modification statute added this exception to the savings clause. See P.L. 164-2015 § 2. 4 The full list of crimes set forth in this subsection includes; (1) murder; (2) attempted murder; (3) voluntary manslaughter; (4) involuntary manslaughter; (5) reckless homicide; (6) aggravated battery; (7) kidnapping; (8) rape; (9) criminal deviate conduct; (10) child molesting; (11) sexual misconduct with a minor as a Class A felony, Class B felony, Level 1 felony, or Level 2 felony; (12) robbery as a Class A felony, Class B felony, Level 1 felony, Level 2 felony, or Level 3 felony; (13) burglary as a Class A felony, Class B felony, Level 1 felony, Level 2 felony, Level 3 felony or Level 4 felony; and (14) unlawful possession of a firearm by a serious violent felon. Ind. Code § 35-38-1-17(d).
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 9 of 18 the court may reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing. The court must incorporate its reasons in the record.
(f) If the court sets a hearing on a petition under this section, the court must give notice to the prosecuting attorney and the prosecuting attorney must give notice to the victim (as defined in IC 35-31.5-2-348) of the crime for which the convicted person is serving the sentence.
(g) The court may suspend a sentence for a felony under this section only if suspension is permitted under IC 35-50-2-2.2.
(h) The court may deny a request to suspend or reduce a sentence under this section without making written findings and conclusions.
(i) The court is not required to conduct a hearing before reducing or suspending a sentence under this section if: (1) the prosecuting attorney has filed with the court an agreement of the reduction or suspension of the sentence; and (2) the convicted person has filed with the court a waiver of the right to be present when the order to reduce or suspend the sentence is considered.
(j) This subsection applies only to a convicted person who is not a violent criminal. A convicted person who is not a violent criminal may file a petition for sentence modification under this section: (1) not more than one (1) time in any three hundred sixty- five (365) day period; and (2) a maximum of two (2) times during any consecutive period of incarceration; without the consent of the prosecuting attorney.
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 10 of 18 (k) This subsection applies to a convicted person who is a violent criminal. A convicted person who is a violent criminal may, not later than three hundred sixty-five (365) days from the date of sentencing, file one (1) petition for sentence modification under this section without the consent of the prosecuting attorney. After the elapse of the three hundred sixty-five (365) day period, a violent criminal may not file a petition for sentence modification without the consent of the prosecuting attorney.
(l) A person may not waive the right to sentence modification under this section as part of a plea agreement. Any purported waiver of the right to sentence modification under this section in a plea agreement is invalid and unenforceable as against public policy. This subsection does not prohibit the finding of a waiver of the right to sentence modification for any other reason, including failure to comply with the provisions of this section.
(m) Notwithstanding subsection (k), a person who commits an offense after June 30, 2014, and before May 15, 2015, may file one (1) petition for sentence modification without the consent of the prosecuting attorney, even if the person has previously filed a petition for sentence modification.
Ind. Code § 35-38-1-17 (“Section 17”) (emphases added).
Discussion and Decision [11] Pursuant to the explicit language of Subsection 17(c), the sentence modification
statute does not apply to violent criminals “[e]xcept as provided in subsections
(k) and (m).” Subsection 17(k) provides in relevant part:
A convicted person who is a violent criminal may, not later than three hundred sixty-five (365) days from the date of sentencing, file one (1) petition for sentence modification under this section
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 11 of 18 without the consent of the prosecuting attorney. After the elapse of the three hundred sixty-five (365) day period, a violent criminal may not file a petition for sentence modification without the consent of the prosecuting attorney.
And Subsection 17(m) provides:
(m) Notwithstanding subsection (k), a person who commits an offense after June 30, 2014, and before May 15, 2015, may file one (1) petition for sentence modification without the consent of the prosecuting attorney, even if the person has previously filed a petition for sentence modification.
These are the only portions of the sentence modification statute that are
applicable to violent criminals. And Subsection 17(m) is inapplicable to Jenkins
because he did not commit his offenses after June 30, 2014 and before May 15,
2015.
[12] Accordingly, the only portion of the sentence modification statute that is
directly applicable to Jenkins is Subsection 17(k). This subsection states that a
violent criminal such as Jenkins may, within 365 days from the date of
sentencing, file a petition for sentence modification without the consent of the
prosecuting attorney. Here, the date of Jenkins’s sentencing—or more
accurately, re-sentencing—was May 17, 2016. Jenkins filed his petition for
sentence modification on January 12, 2017, well within the 365-day limit. Thus,
Jenkins was not required to obtain the consent of the prosecuting attorney
before seeking sentence modification. The State does not argue to the contrary.
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 12 of 18 [13] The State does, however, argue that the trial court could not modify Jenkins’s
sentence because, at his re-sentencing, Jenkins’s counsel and the State entered
into an agreement that Jenkins would receive an aggregate sentence of sixty-five
years. In support of its claim, the State refers to the language of Subsection
17(e), which provides that the trial court may “reduce or suspend the sentence
and impose a sentence that the court was authorized to impose at the time of
sentencing.” (emphasis added). The State contends that the trial court was only
authorized at the time of sentencing to impose the sentence agreed by the
parties, and therefore the trial court could not modify Jenkins’s sentence to a
lesser sentence. However, Subsection 17(e) is inapplicable because Jenkins is a
violent criminal. Therefore, the trial court was not limited by the statutory
language of Subsection 17(e) to impose only a sentence it was authorized to
impose at sentencing.5
5 Recently, in State v. Lamaster, 84 N.E.3d 630 (Ind. Ct. App. 2017), a panel of this court held that, under Section 17(e), the trial court could not modify the sentence of a defendant whose plea agreement called for a fixed sentence because “[a]t the time of sentencing, the trial court was authorized to impose the sentence provided for in the plea agreement.” Id. at 634. After the opinion in Lamaster was issued, another panel of this court came to the opposite conclusion in State v. Stafford, 86 N.E.3d 190 (Ind. Ct. App. 2017), trans. granted, opinion vacated. The Stafford court held that the anti-waiver provisions of Subsection 17(l) meant that sentence modification was available even to a defendant whose plea agreement called for a fixed sentence. Id. at 193. The Stafford court further held that Subsection 17(e) did not limit the trial court’s authority to modify, because “as to what sentence the trial court is ‘authorized’ to impose at the time of sentencing, that authorization is bound not only by the language of the plea agreement but also by the law,” which includes the anti-waiver provisions of Subsection 17(l). As noted, however, our supreme court granted transfer in Stafford, thereby vacating that opinion. Although Stafford was vacated, another panel of this court recently came to the same conclusion. See Rodriguez v. State, No. 20A03-1704-CR-724, 2018 WL 360544, at *5 (Ind. Ct. App. Jan. 11, 2018). The State asks that we follow Lamaster. We, however, do not think that Lamaster, Stafford, or Rodriquez are controlling here, because they do not involve a defendant, like Jenkins, deemed to be a “violent criminal” by Subsection 17(d). Because Jenkins is a violent criminal, the anti-waiver provision of Subsection 17(l) is inapplicable.
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 13 of 18 [14] But even before the language of Subsection 17(e) was added to the sentence
modification statute, our courts had consistently held that a defendant who
enters into a plea agreement that calls for a fixed sentence cannot later seek to
modify his sentence under the sentence modification statute unless the plea
agreement reserved to the court the right to modify.6 See Robinett v. State, 798
N.E.2d 537, 540 (Ind. Ct. App. 2003) (citing Pannarale v. State, 638 N.E.2d
1247, 1248 (Ind. 1994)), trans. denied. These cases did not rely on the language
of the sentence modification statute, but on the law governing plea agreements.
As explained in Pannarale:
[A]fter a sentence has been imposed pursuant to a plea agreement containing a recommendation of a specific term of years, that sentence may not be altered upon subsequent motion . . . unless the agreement contained a specific reservation of such authority for the trial judge.
[State ex rel. Goldsmith v. Superior Court, 275 Ind. 545, 419 N.E.2d 109 (1981)] and its progeny each uphold the principle that a deal is a deal. Once it has accepted a plea agreement, the sentencing court possesses only that degree of discretion provided in the plea agreement with regard to imposing an initial sentence or altering it later.
6 Of course, this is not the case if the plea agreement gave the trial court discretion in sentencing. As explained in Pannarale v. State, 638 N.E.2d 1247, 1248–49 (Ind. 1994): While the trial court may not impose a sentence greater or lesser than that contained in the plea agreement, it does not lose any discretion it possessed at the time of initial sentencing when subsequent petitions for modification are presented. Rather, the court retains the authority to modify a sentence so long as the modified sentence would not have violated the plea agreement had it been the sentence originally imposed.
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 14 of 18 638 N.E.2d at 1248 (citing Goldsmith, 275 Ind. at 551–52, 419 N.E.2d at 114)
(emphasis added); accord Robinett, 798 N.E.2d at 540; see also Schippers v. State,
622 N.E.2d 993, 995 (Ind. Ct. App. 1993) (holding that defendant who entered
into plea agreement calling for a fixed term had received the benefit of his
bargain and that to permit reduction or modification of his sentence would
deprive the State of its end of the bargain).
[15] Although this line of reasoning may have been altered by subsequent
amendments to the sentence modification statute, such as the anti-waiver
provision contained in Subsection 17(l),7 that subsection is inapplicable to
violent criminals such as Jenkins. Thus, the holdings of Robinette and Pannarale
still control when it comes to modifying the sentences of those defined as
“violent criminals” by the sentence modification statute.
[16] Jenkins contends that he did not enter into a plea agreement calling for a
specific term of years. He notes that the agreement mentioned by both his
counsel and the State at the re-sentencing hearing was never reduced to writing
before it was submitted to the trial court. Jenkins notes that Indiana Code
section 35-35-3-3 requires that a prosecutor submit a plea agreement on a felony
charge in writing to the trial court. See Shepperson v. State, 800 N.E.2d 658, 659
(Ind. Ct. App. 2003) (noting the statutory requirement that plea agreements
involving felony charges be reduced to writing); see also Petty v. State, 532
N.E.2d 610, 612 (Ind. 1989) (holding that defendant’s acceptance of oral plea
7 See Rodriguez, 2018 WL 360544, at *5.
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 15 of 18 offer from the State did not constitute a binding plea agreement), overruled in
part on other grounds by Whedon v. State, 765 N.E.2d 1276 (Ind. 2002).
[17] However, in some situations, oral plea agreements are enforceable. For
example, in Shepperson, the prosecution and the defendant reached an
agreement whereby the defendant would plead guilty to one charge in each of
two different causes and the remaining charges would be dropped; the parties
also agreed to a two-year sentence. Id. at 659. Defense counsel informed the
trial court of the terms of the oral agreement, and clarified that the sentences
upon the two counts were to be served concurrently for an aggregate term of
two years. The trial court accepted the plea, but at the subsequent sentencing
hearing sentenced the defendant to a total of three years. On appeal, the
defendant claimed that his sentence was in violation of the terms of his plea
agreement. The State argued that the defendant’s agreement was an
unenforceable oral agreement. On appeal, we held that the oral agreement was
enforceable once the trial court accepted it, and therefore remanded with
instructions that the trial court re-sentence the defendant pursuant to the terms
of the agreement. Id. at 660.
[18] The Shepperson court relied on Rogers v. State, 715 N.E.2d 428 (Ind. Ct. App.
1999), which came to the same conclusion. In Rogers, the terms of the plea
agreement were presented to the court orally by defense counsel. Specifically,
the defendant agreed to plead guilty to burglary and sexual battery, and
sentencing was left to the discretion of the trial court with the exception that
any sentences were to be served concurrently. The trial court accepted the plea,
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 16 of 18 but, at sentencing, ordered the sentences to be served consecutively. On appeal,
we reversed, noting that the trial court had accepted the plea and was therefore
bound by the terms of the agreement that the sentences be served concurrently.
Id. at 428.
[19] These cases instruct us that although a plea agreement that has not been
reduced to writing is not binding on the State vis-à-vis the defendant, once an
oral agreement has been accepted by the trial court, it is binding on all parties,
including the trial court. Thus, here, even though the agreement with regard to
sentencing was never reduced to writing, it was presented by Jenkins’s own
counsel to the trial court, the State indicated its agreement with the presented
terms, and the trial court accepted the terms. Indeed, when it accepted the
agreement, the trial court warned Jenkins that the agreement “takes away
[sentencing] discretion from me and basically you are . . . then bound by the
terms of that agreement.” Re-sentencing Tr. p. 10. Thus, the agreement was
binding on all parties, including Jenkins.
[20] Here, Jenkins entered into an agreement with the State that specifically called
for a fixed sentence, i.e., two concurrent terms of thirty-five years with a thirty-
year habitual offender enhancement. Under the controlling precedent of
Pannarale and its progeny, Jenkins cannot now seek to modify his sentence
unless the agreement reserved to the court such a right to modify. See 638
N.E.2d at 1248; Robinett, 798 N.E.2d at 540. There is nothing in the record that
would indicate that the terms of the agreement reached by the State and Jenkins
included the reservation of such a right to the trial court. To the contrary, the
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 17 of 18 trial court informed Jenkins that, if it accepted the agreement, he would be
bound by the terms thereof.
Conclusion [21] In summary, the only provision of the sentence modification statute applicable
to Jenkins is Subsection 17(k), because he is defined by the statute as a “violent
criminal.” As such, the anti-waiver provision contained in Subsection 17(l) is
inapplicable. Moreover, Jenkins’s oral agreement regarding sentencing was
binding once it was accepted by the trial court. Because Jenkins entered into an
agreement calling for a fixed sentence, he cannot now seek to modify his
sentence. We therefore reverse the order of the trial court modifying Jenkins’s
sentence and remand with instructions to impose the sentence the parties agreed
to, namely two concurrent thirty-five year sentences with a thirty-year habitual
offender enhancement, for an aggregate term of sixty-five years.
[22] Reversed and remanded.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A04-1707-CR-1517 | February 9, 2018 Page 18 of 18