Court of Appeals of Indiana | Opinion 39A04-1705-CR-930 | December 27, 2018 Page 1 of 17

ATTORNEYS FOR APPELLANT

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Supervising Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Jason J. Pattison

Madison, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Defendant,

v.

Pebble Stafford,

Appellee-Plaintiff

December 27, 2018

Court of Appeals Case No.

39A04-1705-CR-930

Appeal from the Jefferson Circuit 

Court

The Honorable Darrell M. Auxier, 

Judge

The Honorable W. Gregory Coy, 

Special Judge

Trial Court Cause No.

39C01-1307-FB-696

Altice, Judge.

Case Summary

[1] On June 10, 2014, Pebble Stafford pled guilty to three offenses each under a 

separate cause number, and her plea agreement provided that she would receive 
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consecutive sentences of six years executed, thirty days in jail, and four years 

executed with direct placement in community corrections. The trial court 

accepted the plea agreement and sentenced Stafford accordingly. In 2017, 

Stafford petitioned the trial court for a sentence modification. Over the State’s 

objection, the trial court granted Stafford’s motion. The State appealed.

[2] We issued an opinion in this case in October 2017 and determined that in light 

of the legislature’s 2014 amendment to Ind. Code § 35-38-1-17, Stafford did not 

waive her right to sentence modification by entering into a fixed plea 

agreement, and thus, the trial court was authorized to modify her sentence

without the approval of the prosecutor. We therefore affirmed the trial court’s 

modification of Stafford’s sentence, but asked the legislature for clarification. 

[3] Likely in response to our request, the legislature amended I.C. § 35-38-1-17

effective on July 1, 2018. Our Supreme Court granted transfer, vacated our 

original opinion in this case, and remanded to us with instructions to reconsider 

in light of this amendment. For the reasons set forth below, we now conclude 

that the trial court was not authorized to amend Stafford’s sentence as it was 

pursuant to a fixed plea agreement.

[4] Judgment reversed and remanded with instructions.

Facts & Procedural History

[5] On July 18, 2013, the State charged Stafford with Class B felony dealing in a 

controlled substance. At that time, Stafford also faced two unrelated charges 
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under two separate cause numbers. On June 10, 2014, Stafford entered into a 

plea agreement with the State resolving all three cases. Stafford agreed to plead 

guilty to Class B felony dealing in a controlled substance, Class B misdemeanor 

possession of a substance to interfere with a screening test, and Class C felony 

battery. The plea agreement provided that Stafford would receive consecutive 

sentences of six years in the Department of Correction (DOC) with none

suspended for the Class B felony; thirty days in the Jefferson County Jail for the 

Class B misdemeanor; and four years in the DOC with direct placement in 

community corrections for the Class C felony battery. The plea agreement 

contained no provision for sentence modification. The trial court accepted the 

plea agreement and sentenced Stafford in accordance therewith.

[6] Effective July 1, 2014, weeks after Stafford pled guilty, the legislature amended 

I.C. § 35-38-1-17 in an effort to relax the rules regarding sentence modification. 

On January 30, 2017, Stafford filed a petition to modify her sentence. The 

State objected, citing Ind. Code § 35-35-3-3(e), which dictates that a trial court 

is bound by the terms of the plea agreement. Following a hearing, the trial 

court granted Stafford’s petition on April 12, 2017. In relevant part, the trial 

court found as follows:

2. The plea agreement was silent as to the right of [Stafford]

to seek a modification; nor did it preclude her from doing 

so.

3. [Stafford] has completed a therapeutic community 

[program] for which she was given credit toward her 

sentence.
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4. After completion of the CLIFF program [Stafford] served 

as a mentor in the program.

5. [Stafford] also obtained a GED, completed a course in 

Problem Solving, and took courses in building trades.

6. [Stafford’s] plan upon release is to go to the Ruth Haven 

halfway house, obtain a full time job, remain clean, and 

continue her education at IVY Tech as a part time student.

* * *

10. This court finds that there is no purpose in requiring 

[Stafford] to remain in the DOC until her current release 

date of August, 2019; she has completed multiple 

programs while at DOC and no further programs or 

treatment are available there which will avail [Stafford] of 

any further opportunity to improve herself or her situation 

at DOC and has been rehabilitated to the extent the DOC 

is able to do so.

11. [Stafford] can seek to become employed and educated if 

released from imprisonment.

12. The Court finds that the remainder of [Stafford]’s sentence 

should be suspended to probation with monitoring by the 

community corrections department.

Appellant’s Appendix Vol. 2 at 118-19. The trial court ordered that Stafford be on 

supervised probation for three years, but that after successful completion of one 

year of probation, she could petition for unsupervised probation. The State 

appeals. 
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Discussion & Decision

[7] In our original decision, we considered the legislature’s 2014 amendment to 

I.C. § 35-38-1-17, in which the following language was added:

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.

I.C. § 35-38-1-17(l).1 We determined that with the addition of this language, the 

legislature “plainly stated that a person may not waive the right to sentence 

modification as part of a plea agreement—any plea agreement [including fixed 

plea agreements].” State v. Stafford, 86 N.E.2d 190, 193 (Ind. Ct. App. 2017), 

trans. granted. Thus, although Stafford entered into a fixed plea agreement, she 

did not thereby waive her right to seek modification of her sentence. We 

therefore held that notwithstanding Stafford’s fixed plea agreement, the trial 

court was authorized to modify her sentence without the prosecutor’s approval. 

Id.

[8] In a later dissent regarding the same issue in Rodriguez v. State, 91 N.E.3d 1033, 

1038 (Ind. Ct. App. 2018), trans. granted, Senior Judge Rucker focused on the 

 

1 When originally added, this language was found in subsection (i). Through a subsequent amendment, the 

language was moved to subsection (l).
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last sentence of the 2014 amendment: “This subsection 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). In light of this language, Senior Judge 

Rucker reached a contrary interpretation of the statute:

[T]he trial court lacked the authority to modify [a sentence] not 

because of a “waive[r] to the right of sentence modification ... as 

part of a plea agreement.” [See I.C. § 35-38-1-17(l).] Instead, the 

trial court lacked such authority for a wholly different reason – or 

in the language of the statute “for any other reason”—namely: 

because of the bargain . . . struck with the State of Indiana. 

91 N.E.3d at 1040. In other words, the “other reason” the trial court lacked 

authority to modify the sentence was because, pursuant to I.C. § 35-35-3-3(e), 

the trial court remained bound by the terms of the plea agreement.

[9] “[I]f a statute admits of more than one interpretation, then it is ambiguous; and 

we thus resort to rules of statutory interpretation so as to give effect to the 

legislature’s intent.” Suggs v. State, 51 N.E.3d 1190, 1194 (Ind. 2016). Upon 

further reflection, we conclude that the 2014 amendment rendered I.C. § 35-38-

1-17 ambiguous, in that the statute was reasonably susceptible to (1) the 

interpretation Senior Judge Rucker articulated in his Rodriguez dissent, i.e., that 

waiver of modification is permissible when the defendant has negotiated a fixed 

plea agreement; and (2) the interpretation we articulated in our original 

decision—an interpretation also reached by the majority in Rodriguez—i.e., that 

a defendant cannot waive the right to modification under these circumstances.
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[10] Notably, in our original decision, we called upon the legislature to clarify its 

intent. In direct response to our call for clarification, the legislature, at its first 

opportunity in the next legislative session, amended I.C. § 35-38-1-17. The 

legislature added language to both subsection (e) and subsection (l), which is 

emphasized in italics below:

(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. 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. 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:
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(1) have a court modify a sentence and impose a sentence not 

authorized by the plea agreement, as described under subsection 

(e); or

(2) sentence modification for any other reason, including 

failure to comply with the provisions of this section.

I.C. § 35-38-1-17(e), (l) (emphasis supplied).

[11] Through its amendment, the legislature made a definitive statement that trial 

courts are not authorized to modify sentences that were imposed by virtue of a 

plea agreement unless the agreement itself contemplated such a modification 

and/or the prosecuting attorney agrees to the modification. In other words, it is 

now clear that the sentencing parameters of a plea agreement continue to bind a 

trial court during subsequent modification proceedings. See I.C. § 35-35-3-3(e).

[12] Just as inaction by the legislature can be viewed as acquiescence in a judicial 

interpretation of a statute, “the opposite is also true, i.e., that action by the 

legislature to amend a law can help clarify the legislature’s original intent in 

adopting the law.” In re J.S., 48 N.E.3d 356, 366 (Ind. Ct. App. 2015). When 

the legislature disagrees with judicial rulings, it can act swiftly to assert that a 

court’s interpretation of its statute is incorrect. Durham ex rel. Estate of Wade v. 

U-Haul Intern., 745 N.E.2d 755, 761 (Ind. 2001). “Where it appears that the 

Legislature amends a statute to express its original intention more clearly, the 

normal presumption that an amendment changes a statute’s meaning does not 

apply.” Ind. Dep’t of Revenue v. Kitchin Hospitality, LLC, 907 N.E.2d 997, 1002 

(Ind. 2009); see also Olatunji v. State, 788 N.E.2d 1268, 1272 (Ind. Ct. App. 2003) 
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(noting that “an amendment to a statute raises the presumption that the 

legislature intended to change the law, unless it clearly appears that the 

amendment was passed in order to express the original intent more clearly”).

[13] Here, the legislature acted swiftly following the decisions in Stafford and 

Rodriguez. We can glean from this that the legislature was simply making clear 

its original intent, and thus, the 2018 amendment to I.C. § 35-38-1-17(e) and (l)

did not change the original meaning of the statute. We therefore conclude that 

the legislature never intended to create a right to modification of fixed sentences 

imposed under a plea agreement. Thus, we conclude that the trial court did not 

have authority to modify Stafford’s sentence without the prosecutor’s approval.2

[14] In light of the foregoing, we reverse the trial court and remand with instructions 

to reinstate Stafford’s sentence as provided in the plea agreement. In doing so, 

we observe that I.C. § 35-38-1-17(l) still reflects the overriding public policy 

against waiver-of-modification provisions. Nonetheless, the statutory 

framework limits the range of possible modification to that “authorized by the 

plea agreement.” I.C. § 35-38-1-17(e), -17(l)(1). In this case, Stafford entered 

into—and the trial court accepted—a plea agreement with just one authorized 

 

2

In revisiting Rodriguez, the majority there adheres to its original interpretation of the 2014 amendment, and 

proceeds to address the interplay between the plea agreement, the 2018 amendment, and the Contract Clause 

of the United States Constitution. Rodriguez v. State, No. 20A03-1704-CR-724, slip op. at 13-17 (Ind. Ct. 

App. Dec. 14, 2018). The Court ultimately concludes that retroactive application of the 2018 amendment 

would be unconstitutional as applied and also fundamentally unfair. Id. at 17. We note in passing, however, 

that Stafford—unlike the defendant in Rodriguez—entered her plea agreement before the effective date of the 

2014 amendment. Thus, even if we shared the interpretation and approach espoused in Rodriguez, we would 

discern no such constitutional infirmity or fundamental unfairness in the instant case.
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sentence, thereby leaving no room for modification. Notably, however, Indiana 

trial courts retain broad discretion to accept or reject plea agreements. See I.C. § 

35-35-3-3; Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994); Meadows v. 

State, 428 N.E.2d 1232, 1235 (Ind. 1981). Thus, if ever desired, a trial court 

may avoid the instant issue by rejecting a “fixed sentence” plea agreement that 

fails to authorize sentence modification in the case of changed circumstances.

[15] Judgment reversed and remanded with instructions.

Bailey, J., concurs.

Baker, J., dissents with opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Respondent,

v.

Pebble Stafford,

Appellee-Petitioner

Court of Appeals Case No.

39A04-1705-CR-930

Baker, Judge, dissenting.

[16] I respectfully dissent. In the legislative session that convened following our 

original decision in Stafford, our General Assembly reconsidered and amended

the language included in the 2014 amendment of Indiana Code section 35-38-1-

17. In my view, the General Assembly realized that this Court’s interpretation 

of the statute was both right and reasonable. For that reason, the legislature 

followed our suggestion to clarify the statute.
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Pre-2018 Amendment 

[17] I continue to believe that our original decision was both right and reasonable, 

based on the language of the statute at that time. A plea agreement is 

contractual in nature, binding upon the defendant, the State, and the trial court. 

St. Clair v. State, 901 N.E.2d 490, 492 (Ind. 2009). Once a trial court accepts a 

plea agreement, it is bound by the terms of that agreement. Ind. Code § 35-35-

3-3(e).

[18] For many years, it was well established that a trial court had no authority to 

later modify a fixed plea sentence unless the plea agreement reserved to the 

court the right to engage in such a modification. E.g., Pannarale v. State, 638 

N.E.2d 1247, 1248 (Ind. 1994). In 2014, however, the General Assembly 

amended the statute regarding sentence modification, adding the following new 

provision:

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.
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Ind. Code 35-38-1-17(l).3 This statute has explicit retroactive application to 

offenders who were convicted and sentenced before July 2014. I.C. § 35-38-1-

17(a). The General Assembly also loosened other rules regarding sentence 

modification with these amendments, including the elimination of all time 

periods related to when a non-violent offender could seek a sentence 

modification and the express authorization of sentence modification without 

the consent of the prosecutor. I.C. § 35-38-1-17.

[19] It is apparent that, by relaxing the rules regarding sentence modification, our

General Assembly was guided by Article I, Section 18, of the Indiana 

Constitution, which provides that “[t]he penal code shall be founded on the 

principles of reformation, and not of vindictive justice.” In keeping with this 

philosophy is the legislature’s recognition of the public policy against a 

purported waiver in a plea agreement of a defendant’s ability to seek sentence 

modification.

[20] The State focuses on the following section of the statute:

(e) At any time after:

(1) a convicted person begins serving the person’s 

sentence; and

 

3 When first enacted, this section was codified as subsection -17(i); it was later codified as subsection -17(l) 

but is otherwise identical to the earliest version.
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(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.

I.C. § 35-38-1-17(e) (emphasis added). According to the State, this provision 

means that a trial court may not modify a sentence following a fixed sentence 

plea agreement if the right to modify was not included in the agreement:

[I]n a case involving a fixed-sentence plea, the only sentence that 

the court “was authorized to impose at the time of sentencing” is 

the precise sentence provided for in the plea agreement. Thus, by 

the plain language of the modification statute, a court does not 

have any authority to modify where it had no discretion at the 

time of the original imposition of sentence. . . . If a trial court 

had no authority to impose a particular sentencing term when it 

originally imposed sentence, then it has no authority to impose 

that term through a subsequent modification.

Original Appellant’s Br. p. 12 (internal citations omitted). And the State further 

argues that subsection -17(l) does not provide the trial court with sentence 

modification authority:

[Subsection -17(l)] further provides that “[t]his subsection does 

not prohibit the finding of a waiver of the right to sentence 

modification for any other reason.” Thus, this subsection is only 

speaking to waiver provisions within a plea agreement that 

would remove the authority to modify that a court would 

otherwise possess under the terms of the agreement. It does not 
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speak to any other way in which the right to seek a modification 

could otherwise be waived, such as by entering into an agreement 

to receive a specific sentence. . . . If the General Assembly had 

intended to . . . allow modifications of fixed-sentence pleas, it 

would have said so directly. Instead, the legislature included 

language allowing trial courts to find the right to seek a 

modification waived “for any other reason,” which would 

include the reason that the defendant bargained for and agreed 

that she would serve this specific sentence.

Id. at 13-14.

[21] I cannot agree with the State’s tortured interpretation of the plain statutory 

language. First, 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. And the General Assembly has quite 

clearly stated that, as of July 2014, “[a] person may not waive the right to 

sentence modification under this section as part of a plea agreement.” I.C. § 35-

38-1-17(l). Therefore, following the enactment of these statutory amendments, 

the legislature has declared that trial courts are not authorized to impose a 

sentence that purports to waive the defendant’s right to a later modification. 

[22] Second, while the State insists that subsection -17(l) does not allow 

modifications of fixed sentence plea agreements, I disagree. The General 

Assembly could easily have carved out an explicit exception for fixed sentence 

plea agreements, but it did not do so. Instead, it plainly stated that a person 

may not waive the right to sentence modification as part of a plea agreement—
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any plea agreement—and went a step further, cautioning that any such 

purported waiver is invalid, unenforceable, and against public policy. Id.

[23] The statute says what it says, and we are bound to interpret and apply statutes 

in a way that fulfills the legislature’s intent. And this version of the statute 

clearly and unambiguously states that offenders “may not waive the right to 

sentence modification . . . as part of a plea agreement.” I.C. § 35-38-1-17(e). 

[24] Here, the trial court explicitly found that Stafford has completed many 

programs while incarcerated, has a solid plan in place for her reentry into 

society, and has been rehabilitated to the extent it is possible to do so during her 

incarceration. Under these circumstances, I believe that the trial court did not 

err by granting Stafford’s motion to modify in this case.

2018 Amendment

[25] The 2018 amendment does not change my opinion regarding the way in which 

this case should be resolved. I do not believe that the General Assembly can or 

should attempt to retroactively void a court order by statute. In my view, such 

an attempt violates the Indiana Constitution’s Separation of Powers provision 

by overstepping and taking away the judicial power of the trial court. Ind. 

Const. Art. 3, Section 1.

[26] Here, the amendment of Indiana Code section 35-38-1-17 was aimed squarely 

at this Court’s Stafford decision as well as the trial court’s original order under 

consideration. While it is clear that the amended statutory language precludes 

future trial courts from taking the actions that were taken in this case, in my 
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opinion, the after-the-fact amendment should not be allowed to vitiate what has 

already occurred in this particular case. For these reasons, I would again affirm

the trial court. Therefore, I respectfully dissent.