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


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  • 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
    

Document Info

Docket Number: 18A-CR-1027

Filed Date: 11/8/2018

Precedential Status: Precedential

Modified Date: 11/8/2018