Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

James W. Hamilton

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James W. Hamilton,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

December 22, 2015

Court of Appeals Cause No.

32A01-1508-CR-1201

Appeal from the Hendricks 

Superior Court

The Honorable Mark A. Smith, 

Judge

Trial Court Cause No.

32D04-0909-FA-7

Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015 Page 2 of 7

Case Summary

[1] James Hamilton appeals the trial court’s denial of his motion for modification 

of sentence. We affirm.

Issue

[2] Hamilton raises two issues, which we consolidate and restate as whether the 

trial court properly denied his motion for modification of sentence.

Facts

[3] In September 2009, the State charged Hamilton with two counts of Class A 

felony dealing in cocaine or a narcotic drug, Class C felony dealing in a 

Schedule IV controlled substance, two counts of Class C felony possession of 

cocaine or a narcotic drug, and Class D felony possession of a Schedule IV 

controlled substance. In May 2011, Hamilton pled guilty to Class B felony 

dealing in cocaine or a narcotic drug, and the State dismissed the remaining 

charges. The plea agreement provided for a sentence of 7,300 days with 5,110 

days suspended, fourteen days of credit, 2,190 days served on work release, and 

4,010 days of probation. The plea agreement also provided: “Upon any 

probation violation of any kind, Mr. Hamilton must serve the entire suspended 

sentence of 5,110 days at the Indiana Department of Corrections (not work 

release or home detention). Mr. Hamilton may not petition the court for early 

release of probation.” Appellant’s Br. p. 13.

[4] After only a couple weeks on work release, Hamilton tested positive for cocaine 

and tried to bribe a correctional officer to “pull” the screen. Hamilton v. State, 
Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015 Page 3 of 7

No. 32A05-1110-CR-599, slip op. at 3 (Ind. Ct. App. July 16, 2012). The trial 

court revoked Hamilton’s placement in work release, revoked his probation,

and ordered him to serve 7,272 days at the Indiana Department of Correction. 

Hamilton appealed the revocation of his probation, and we affirmed.

1

 See id. at

11. 

[5] On May 14, 2015, Hamilton filed a petition for modification of his sentence. 

Hamilton argued, in part, that the provision in the plea agreement requiring the 

imposition of the entire suspended sentence upon any probation violation was a 

“waiver of his right to a sentence modification” and was invalid under the 

newly amended Indiana Code Section 35-38-1-17(1). The State objected to 

Hamilton’s petition to modify his sentence. After a hearing, the trial court 

denied Hamilton’s petition. The trial court concluded:

The Court, having considered the evidence and arguments does 

now find that the Defendant’s request to modify his sentence 

should be denied. To be sure, it seems as if the Defendant has 

been active in taking steps to improve his self while incarcerated. 

For this he is to be commended. However, even taking these 

things into account, the Defendant has received some benefit 

already by virtue of the 5-month time cut he received. 

Additionally, the Defendant has only served about 21% of the 

executed portion of his sentence taking into account his time cut.

 

1 Hamilton also filed a petition for post-conviction relief challenging his guilty plea, claiming prosecutorial 

misconduct, and arguing that his trial counsel and appellate counsel were ineffective. The post-conviction 

court denied the petition, and we affirmed the denial. Hamilton v. State, No. 32A01-1403-PC-128 (Ind. Ct. 

App. Dec. 16, 2014).
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Furthermore, the Court finds that the Defendant’s reliance on the 

newly amended I.C. § 35-38-1-17 is misplaced. The Defendant’s 

plea agreement does not contain an express waiver against 

sentence modification of the kind contemplated by the statute. A 

“waiver” is an intentional relinquishment of a known right. 

Here, the Defendant did not waive a right to modify, but instead 

agreed to serve an agreed sentence upon a violation. The 

provision in the plea agreement prohibiting the Defendant from 

seeking an early release from probation became moot once the 

Court revoked probation at the time of violation hearing. 

Moreover, even if I.C. § 35-38-1-17(1) is applicable, it’s clear the 

Indiana Legislature did not intend for the prohibition against 

waiver to be absolute. The express language of the statute makes 

clear that a finding of waiver of the right to modify may occur for 

any other reason.

[6] App. p. 31. Hamilton filed a motion to reconsider, which the trial court also 

denied. Hamilton now appeals.

Analysis

[7] Hamilton argues that the trial court abused its discretion by denying his petition 

for modification of sentence. “We review a trial court’s decision to modify a 

sentence only for abuse of discretion.” Gardiner v. State, 928 N.E.2d 194, 196 

(Ind. 2010). An abuse of discretion occurs if the court’s decision is clearly 

against the logic and effect of the facts and circumstances before the court. 

Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999).
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[8] Indiana Code Section 35-38-1-172 provides in part:

(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;

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.

* * * * *

(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.

 

2

Indiana Code Section 35-38-1-17 was amended effective July 1, 2014, to add the language of subsection (l). 

See P.L.158-2013, § 396 (eff. July 1, 2014); P.L.168-2014, § 58 (eff. July 1, 2014). The statute was then 

amended to apply to a person who commits an offense or is sentenced before July 1, 2014. See P.L.164-2015, 

§ 2 (May 5, 2015). 
Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015 Page 6 of 7

[9] According to Hamilton, the probation violation provision of his plea agreement 

violated Indiana Code Section 35-38-1-17(l). The plea agreement provided: 

“Upon any probation violation of any kind, Mr. Hamilton must serve the entire 

suspended sentence of 5110 days at the Indiana Department of Corrections (not 

work release or home detention). Mr. Hamilton may not petition the court for 

early release of probation.” Appellant’s Br. p. 13. Hamilton violated his 

probation, and the trial court sentenced him accordingly. When Hamilton filed 

his request for a sentence modification, the trial court concluded that the plea 

agreement provision was not invalidated by Indiana Code Section 35-38-1-17(l). 

[10] Our primary goal in interpreting statutes is to determine and give effect to the 

Legislature’s intent. Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012). The best 

evidence of that intent is a statute’s text. Id. The first step is therefore to decide 

whether the Legislature has spoken clearly and unambiguously on the point in 

question. Id. When a statute is clear and unambiguous, we must apply the 

plain and ordinary meaning of the language. Id. There is no need to resort to 

any other rules of statutory construction. Id. As a result, we need not delve 

into legislative history if no ambiguity exists. Id. But a statute is ambiguous 

when it admits of more than one reasonable interpretation. Id. In that case, we 

resort to the rules of statutory construction so as to give effect to the 

Legislature’s intent. Id. For example, we read the statute as a whole, avoiding 

excessive reliance on a strict, literal meaning or the selective reading of 

individual words. Id. In a criminal case, we construe an ambiguous statute in 

favor of the defendant. Id.
Court of Appeals of Indiana | Memorandum Decision 32A01-1508-CR-1201 | December 22, 2015 Page 7 of 7

[11] The clear language of Indiana Code Section 35-38-1-17(l) prohibits only the 

waiver of the right to sentence modification as part of a plea agreement. 

Hamilton did not agree in his plea agreement to waive a right to sentence 

modification; rather, he agreed to serve a certain sentence upon a probation 

violation. The statute specifically “does not prohibit the finding of a waiver of 

the right to sentence modification for any other reason . . . .” I.C. § 35-38-1-

17(l). Consequently, Hamilton’s argument fails.

[12] Moreover, even if the provision of the plea agreement was invalid under 

Indiana Code Section 35-38-1-17(l), Hamilton was not guaranteed a 

modification of his sentence. The trial court commended Hamilton for taking 

classes to better himself. However, the trial court also noted that Hamilton had 

been awarded a five-month time cut, that he had a lengthy criminal history and 

a history of violating his probation, that he had five conduct violations between 

January 2012 and December 2014, and that he had served only twenty-one 

percent of the executed portion of his sentence. Hamilton has not shown that 

the trial court abused its discretion by denying his petition for modification of 

his sentence. 

Conclusion

[13] The trial court did not abuse its discretion by denying Hamilton’s petition for 

modification of his sentence. We affirm.

[14] Affirmed.

Robb, J., and Altice, J., concur.