Timothy Long v. State of Indiana , 2012 Ind. App. LEXIS 28 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 25 2012, 8:54 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
TIMOTHY LONG, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1105-CR-381
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda Brown, Judge
Cause No. 49F10-1006-CM-045499
JANUARY 25, 2012
OPINION – FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Timothy Long appeals his sentence for Class A misdemeanor operating a vehicle
while intoxicated, Ind. Code § 9-30-5-2(b) (2001), and being a habitual substance
offender, Ind. Code § 35-50-2-10 (2006). We affirm.
ISSUE
Long raises one issue, which we restate as: whether the trial judge erred by
rejecting the sentence imposed by the master commissioner who presided at the guilty
plea hearing.
FACTS AND PROCEDURAL HISTORY
In May 2010, police officers observed Long driving unsafely on West 34th Street
in Indianapolis and stopped his vehicle. While speaking with Long, the officers detected
the odor of alcohol and observed that his speech was slurred, his eyes were bloodshot and
glassy, and his dexterity was poor. Long submitted to and failed three field sobriety tests.
A breath test indicated that he had an alcohol concentration equivalent to 0.25 grams of
alcohol per 210 liters of breath.
The State charged Long with Class A misdemeanor operating a vehicle while
intoxicated, being a habitual substance offender, and two other offenses. The habitual
substance offender charge was based on a Class A misdemeanor operating a vehicle
while intoxicated conviction in 2004 and a Class D felony operating a vehicle while
intoxicated conviction in 2001.
On February 14, 2011, Long pleaded guilty before Master Commissioner Teresa
Hall to Class A misdemeanor operating a vehicle while intoxicated and being a habitual
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substance offender in exchange for the State’s dismissal of the other two charges. The
written plea agreement provided for an executed one-year sentence for the Class A
misdemeanor and a three-year enhancement for being a habitual substance offender, for
an aggregate sentence of four years. The agreement left to the court’s discretion the
amount of the three-year enhancement that would be executed and Long’s placement for
the executed sentence. Appellant’s App. p. 33; Tr. p. 9. Master Commissioner Hall
accepted the plea agreement and set the matter for sentencing. At the sentencing hearing
on February 28, 2011, Master Commissioner Hall imposed a sentence of one year
executed in the Marion County Jail on the Class A misdemeanor enhanced by one year
executed in the Marion County Jail and two years executed in the Marion County
Community Corrections Work Release Program for being a habitual substance offender.
On March 4, 2011, the presiding judge, Linda Brown, issued an order declining to
approve Master Commissioner Hall’s sentencing recommendation and resetting the
matter for sentencing. At the sentencing hearing on March 31, 2011, Judge Brown
imposed a sentence of one year executed in the Marion County Jail on the Class A
misdemeanor enhanced by two years executed in the Department of Correction and one
year executed in the Marion County Community Corrections Work Release Program.
Long now appeals.
DISCUSSION AND DECISION
Long contends that Master Commissioner Hall was statutorily authorized to
impose his sentence and that Judge Brown thus erred by rejecting that sentence. Indiana
Code section 33-33-49-16(e) (2004) provides that a Marion County master commissioner
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“has the powers and duties prescribed for a magistrate under IC 33-23-5-5 through IC 33-
23-5-9.” Indiana Code chapter 33-23-5 grants various powers to magistrates but
generally precludes them from entering a final appealable order. Boyer v. State, 883
N.E.2d 158, 160 (Ind. Ct. App. 2008); see Ind. Code § 33-23-5-8(2) (2008) (“Except as
provided under sections 5(14) and 9(b) of this chapter, a magistrate . . . may not enter a
final appealable order unless sitting as a judge pro tempore or a special judge.”). The
principal exception to this rule is Indiana Code section 33-23-5-9(b) (2004), which
provides:
If a magistrate presides at a criminal trial, the magistrate may do the
following:
(1) Enter a final order.
(2) Conduct a sentencing hearing.
(3) Impose a sentence on a person convicted of a criminal offense.
See also Ind. Code § 33-23-5-5(14) (2008) (“A magistrate may . . . [e]nter a final order,
conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal
offense as described in section 9 of this chapter.”).
Master Commissioner Hall did not preside at a criminal trial. Instead, Long
pleaded guilty, and Master Commissioner Hall presided at the guilty plea hearing. Long
cites Boyer v. State, 883 N.E.2d 158 (Ind. Ct. App. 2008), to support his assertion that
Master Commissioner Hall was statutorily authorized to sentence him and enter a final
order. In Boyer, however, the magistrate presided at the defendant’s criminal trial, id. at
160, and this Court held that Section 33-23-5-9(b) gives “a magistrate presiding over a
criminal trial the power to enter a final order and to enter a judgment of conviction,” id.4
at 161-62. The facts in Boyer are thus unlike the facts presented here, where Master
Commissioner Hall presided at a guilty plea hearing and not a criminal trial.
Long also cites Ivy v. State, 947 N.E.2d 496 (Ind. Ct. App. 2011), for support. In
that case, the defendant pleaded guilty to Class B felony burglary and being a habitual
offender, and the State agreed to dismiss the remaining charges. The plea agreement set
a sixteen-year executed sentence and contained a provision in which the defendant agreed
that the sentence was appropriate and waived any request to modify his sentence. The
trial court sentenced the defendant to sixteen years in the Department of Correction but
noted that it would consider alternative placement for the last two years. The defendant
later filed a motion to modify his sentence in Marion Superior Court. A master
commissioner denied the motion. On appeal, the defendant argued that the master
commissioner did not have the authority to rule on his motion. The State responded that
the terms of the plea agreement precluded the defendant from seeking a modification of
his sentence.
At the outset, this Court stated that it was affirming the denial of the defendant’s
motion to modify his sentence because the terms of the plea agreement precluded him
from seeking a modification. Id. at 497. In its analysis of the issues, this Court first
addressed the defendant’s argument and concluded that the master commissioner had the
power to enter a final judgment on the defendant’s motion to modify his sentence because
“magistrates, and therefore master commissioners, are authorized to enter final orders in
criminal trials, conduct sentencing hearings, and impose sentences on convicted persons.”
Id. at 498-99. We then concluded that the trial court’s incorrect advisement at the
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sentencing hearing had no effect on the defendant’s knowing and voluntary waiver of the
right to request a modification of his sentence. Id. at 500. We therefore affirmed the
denial of the defendant’s motion to modify his sentence.
Long argues that Ivy establishes that a master commissioner can enter a final order
after a defendant has pleaded guilty. We disagree. This Court’s conclusions regarding
the master commissioner’s authority were unnecessary to the decision, which was on the
basis, announced at the outset, that the defendant could not challenge his sentence
pursuant to the terms of the plea agreement. Moreover, there is no indication that this
Court was asked to consider whether the legislature intended to treat guilty pleas in the
same manner as criminal trials with regard to the authority of magistrates and master
commissioners.1 Further, to the extent Ivy stands for the proposition argued by Long, we
respectfully disagree. The master commissioner did not preside at a criminal trial. In
fact, detrimental to Long’s own argument, there is no evidence that the master
commissioner even presided at the defendant’s guilty plea hearing. We would have
concluded that the master commissioner did not have the authority to enter a final order
on the defendant’s motion to modify his sentence.
Long also argues that “[i]f the legislature has deemed master commissioners
competent to preside over criminal trials, pronounce the sentence, and enter final
judgment, then they are quite competent to do so at a guilty plea hearing.” Appellant’s
Reply Br. p. 4. This is not a judgment for us to make. Section 33-23-5-9(b) clearly states
1
For the same reason, Long’s citations to Offringa v. State, 637 N.E.2d 190, 191 (Ind. Ct. App. 1994),
and In re Involuntary Commitment of A.M., No. 82A01-1101-MH-29, 2011 WL 4829666, at *2 n.1 (Ind.
Ct. App. Oct. 12, 2011), are unavailing.
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that a magistrate, and thus a master commissioner, may enter a final order, conduct a
sentencing hearing, and impose a sentence if he or she has presided at a criminal trial.
We are not at liberty to conclude that the clear language of the statute indicating
“criminal trial” really means “criminal trial or guilty plea hearing.”
Finally, Long presents us with a scenario in which a defendant decides to plead
guilty after a trial has commenced before a master commissioner and asks if the master
commissioner would have the authority to enter a final order after the guilty plea. These
are not the facts before us. On the facts before us, Master Commissioner Hall presided at
Long’s guilty plea hearing. Because she did not preside at a criminal trial, she did not
have the authority to enter a final judgment on Long’s sentence. Judge Brown therefore
did not err by rejecting Master Commissioner Hall’s sentence and imposing her own
sentence.
CONCLUSION
For the reasons stated above, we affirm Long’s sentence.
Affirmed.
CRONE, J., and BRADFORD, J., concur.
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