Gary Amick v. State of Indiana (mem. dec.) ( 2018 )

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.
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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
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[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
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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.
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