Court of Appeals of Indiana | Opinion 20A03-1704-CR-724 | January 11, 2018 Page 1 of 16

ATTORNEY FOR APPELLANT

Jessica R. Merino

Merino Law Firm, PC

Goshen, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Ellen H. Meilaender

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Alberto Baiza Rodriguez,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

January 11, 2018

Court of Appeals Case No.

20A03-1704-CR-724

Appeal from the Elkhart Superior 

Court

The Honorable David C. 

Bonfiglio, Judge

Trial Court Cause No.

20D06-1503-F6-264

Crone, Judge.

Case Summary

[1] Alberto Baiza Rodriguez appeals the trial court’s denial of his motion to modify 

his sentence, which was imposed pursuant to a written plea agreement

containing a fixed sentence of seventy-two months executed on work release. 
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Rodriguez argues that modification of his sentence is permissible under Indiana 

Code Section 35-38-1-17(l), which provides that a person may not waive the 

right to sentence modification as part of a plea agreement. We agree and 

therefore reverse and remand for further proceedings.

Facts and Procedural History

[2] Based on an incident that occurred on March 11, 2015, the State charged 

Rodriguez with class A misdemeanor operating while intoxicated (“OWI”), 

level 6 felony OWI with a prior conviction, class C misdemeanor operating a 

vehicle with an alcohol concentration equivalent of .08 or more, and with being 

a habitual vehicular substance offender (“HVSO”).

[3] On January 6, 2016, pursuant to a written plea agreement, Rodriguez agreed to 

plead guilty to the OWI charges and the HVSO allegation. The plea agreement 

specified that Rodriguez would serve thirty months for the OWI convictions

and an additional forty-two months for the HVSO adjudication in the 

Department of Correction, all to be executed on Elkhart County Work Release. 

The agreement further provided that the State would agree to dismiss the class 

C misdemeanor charge and not to file additional charges arising out of the 

incident. The trial court accepted the plea agreement and sentenced Rodriguez 

according to its terms. Rodriguez began serving his sentence on January 20, 

2016.

[4] On January 12, 2017, Rodriguez filed a motion to modify his sentence, alleging 

that his work release placement had caused an undue hardship on his son and 
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father and that Indiana Code Section 35-38-1-17(e) permitted the trial court to 

modify his remaining sentence from work release to home detention. Section 

35-38-1-17(e) states,

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.

Rodriguez asked the trial court to order a report from Elkhart County Work 

Release and set the matter for hearing.

[5] The trial court held a hearing on Rodriguez’s motion and acknowledged that 

his “report from the Work Release [was] very, very good, very outstanding.” 

Tr. Vol. 2 at 7. The court took the matter under advisement and issued an 

order concluding that it did “not have the authority to modify the sentence 

because the court accepted the parties’ plea agreement which requires the 

defendant to serve the sentence in Work Release.”1 The court referenced 

 

1 A handwritten notation on the plea agreement states, “Agreed all time in work release no discretion to 

change.” Appellant’s Ap. at 13. Unlike other handwritten notations on the document, this one is not 

initialed by Rodriguez as an indication that he understood it. The sentencing order states that Rodriguez is 

to be placed “in ECCC [Elkhart County Community Corrections] WORK RELEASE ONLY” and that 

“ECCC has NO discretion to change” his placement. Id. at 17. The transcript of the guilty plea hearing is 

not in the record before us, so there is no indisputable evidence that Rodriguez agreed either verbally or in 
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Indiana Code Section 35-35-3-3(e), which states, “If the court accepts a plea 

agreement, it shall be bound by its terms.” The court also quoted Indiana Code 

Section 35-38-1-17(l), which states,

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[, which limit the 

number of times a person may file a petition for sentence 

modification without the consent of the prosecuting attorney].

(Emphasis altered.) The court concluded that the italicized phrase “applies to 

the specific terms of a plea agreement that the court has accepted[,]” and thus 

“entering into a binding plea agreement waives the right to seek or receive a 

modification of sentence.”

[6] Rodriguez now appeals. Additional facts will be provided as necessary.

Discussion and Decision

[7] Rodriguez contends that the trial court erred in denying his motion to modify 

his sentence. We review such rulings for an abuse of discretion. Carr v. State, 

33 N.E.3d 358, 358 (Ind. Ct. App. 2015), trans. denied. “The trial court abuses 

 

writing that his placement could not be changed, and the sentencing order does not prohibit the trial court 

from changing his placement.
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its discretion by ruling in a way clearly against the logic and effect of the facts 

and circumstances before it, or by misinterpreting the law.” Perryman v. State, 

80 N.E.3d 234, 241 (Ind. Ct. App. 2017). To the extent that our analysis hinges 

on interpreting statutes, we note that “statutory interpretation is a question of 

law and determinations in that regard are subject to de novo appellate review.” 

Higgins v. State, 855 N.E.2d 338, 341 (Ind. Ct. App. 2006). “When construing a 

statute our primary goal is to ascertain the legislature’s intent. To discern that 

intent, we look first to the statutory language itself and give effect to the plain 

and ordinary meaning of statutory terms.” Suggs v. State, 51 N.E.3d 1190, 1193 

(Ind. 2016) (citation omitted). “Statutes relating to the same subject matter are 

in pari materia (on the same subject) and should be construed together so as to 

produce a harmonious statutory scheme.” Jones v. State, 928 N.E.2d 285, 287 

(Ind. Ct. App. 2010). “‘As a general rule, there is a presumption that the 

Legislature in enacting a particular piece of legislation has in mind existing 

statutes covering the same subject.’” Simmons v. State, 773 N.E.2d 823, 826 

(Ind. Ct. App. 2002) (quoting Citizens Action Coalition of Ind. v. Pub. Serv. Comm’n 

of Ind., 425 N.E.2d 178, 184 (Ind. Ct. App. 1981)), trans. denied. “[W]e will not 

read into the statute that which is not the expressed intent of the legislature. As 

such, it is just as important to recognize what the statute does not say as it is to 

recognize what it does say.” N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002) 

(citation omitted).

[8] It is hornbook law that a plea agreement is contractual in nature, binding both 

the defendant and the State. E.g., St. Clair v. State, 901 N.E.2d 490, 492 (Ind. 
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2009). “Bargaining between the State and a pleading defendant will have 

produced for court consideration an agreement that either specifies a precise 

penalty or leaves some or all of the specifics to the judgment of the trial court.” 

Id. at 493. “[I]t is up to the trial court to accept or reject the plea agreement as 

filed.” Badger v. State, 637 N.E.2d 800, 802 (Ind. 1994). As noted above, once a 

trial court accepts a plea agreement, it is bound by its terms. Ind. Code § 35-35-

3-3(e).

[9] In years past, the legislature placed significant limitations on a trial court’s

authority to modify a sentence imposed after a trial. A trial court could reduce 

or suspend a defendant’s sentence within the first three hundred sixty-five days

(commonly known as “shock probation”), but after that point most reductions 

or suspensions were subject to approval of the prosecuting attorney. See Ind. 

Code § 35-38-1-17 (formerly 35-38-1-23) (historical statutes). With respect to 

plea agreements containing a fixed sentence, our supreme court held as follows:

Once it has accepted a plea agreement recommending a specific 

sentence, ... the terms of the agreement constrain the discretion 

the court would otherwise employ in sentencing. Even after a 

sentence has been imposed pursuant to a plea agreement 

containing a recommendation of a specific term of years, that 

sentence may not be altered upon subsequent motion, such as 

under Ind. Code § 35-38-1-23 for “shock probation,” unless the 

agreement contained a specific reservation of such authority for 

the trial judge. [State ex rel. Goldsmith v. Marion Cty. Super. Ct., 275 

Ind. 545, 551-52, 419 N.E.2d 109, 114 (1981)].

Goldsmith and its progeny each uphold the principle that a deal is 

a deal. Once it has accepted a plea agreement, the sentencing 
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court possesses only that degree of discretion provided in the plea 

agreement with regard to imposing an initial sentence or altering 

it later.

Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994).2

[10] Since 2014, however, the legislature has gradually relaxed the restrictions on 

sentence modification, allowing trial courts to reduce or suspend sentences for 

nonviolent offenders “[a]t any time” without prosecutorial approval in certain 

circumstances. Ind. Code § 35-38-1-17(e), -(j).3 The legislature also added what 

is now Section 35-38-1-17(l), which, as mentioned above, provides that “[a] 

person may not waive the right to sentence modification under this section as 

part of a plea agreement” and that “[a]ny purported waiver of the right to 

sentence modification under this section in a plea agreement is invalid and 

unenforceable as against public policy.” Section 35-38-1-17(l) also provides that 

it “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 the statute.

 

2

See also Robinett v. State, 798 N.E.2d 537, 539-40 (Ind. Ct. App. 2003) (denying motion to modify fixed 

sentence imposed pursuant to plea agreement based on Pannarale), trans. denied (2004). The trial court in this 

case cited both Pannarale and Robinett in its order denying Rodriguez’s motion to modify.

3

Section 35-38-1-17(j) provides that a nonviolent offender “may file a petition for sentence modification ... 

(1) not more than one (1) time in any three hundred sixty-five (365) day period; and (2) a maximum of two 

(2) times during any consecutive period of incarceration; without the consent of the prosecuting attorney.” 

Section 35-38-1-17(k) provides that a violent offender may file one petition for sentence modification without 

the consent of the prosecuting attorney within three hundred sixty-five days from the date of sentencing; 

thereafter, the offender “may not file a petition for sentence modification without the consent of the 

prosecuting attorney.”
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[11] In this case, Rodriguez’s plea agreement contained a specific reservation of 

authority for the trial court to modify his sentence, but only in the event that he 

was incarcerated, which he was not. See Appellant’s App. Vol. 2 at 14 (“In the 

event [Rodriguez] is incarcerated, he specifically reserves the right to request a 

modification of sentence; however, the State is not bound to consent to 

jurisdiction therefore [sic.].”). The trial court essentially concluded that by 

entering into a plea agreement with a fixed sentence to be served on work 

release, Rodriguez waived the right to modification of that sentence. But that is 

precisely what Section 35-38-1-17(l) prohibits in no uncertain terms as a 

violation of public policy; it does not distinguish between implicit or explicit 

waivers, and we may not read such a distinction into the statute. N.D.F., 775 

N.E.2d at 1088.

[12] The State argues,

In plea bargains, the State is often agreeing to dismiss other 

(often, more serious) charges or to forego filing additional 

charges in exchange for the certainty of a definite sentence or 

definite limits on sentencing options that ensure the defendant 

will receive no less than a certain sentence. If that fixed sentence 

can be modified at any time, or if the negotiated limits on 

sentencing discretion can be ignored at any time, then the 

agreement is purely illusory, and the State is not receiving the 

benefit for which it bargained. The State will be unwilling to 

enter into plea agreements if they will not be enforced.

Appellee’s Br. at 12. We acknowledge the State’s concern, but as another panel 

of this Court stated in response to a similar argument in a recent case,
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the statute says what it says, and we are bound to interpret and 

apply statutes in a way that fulfills the legislature’s intent. Unless 

and until the General Assembly clarifies the statute at issue, it 

clearly and unambiguous states that offenders “may not waive 

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

agreement.”

State v. Stafford, 86 N.E.3d 190, 193 (Ind. Ct. App. 2017) (quoting Ind. Code § 

35-38-1-17(l)), trans. granted.

4

[13] The State also points to Section 35-35-3-3(e), which provides that a trial court 

“shall be bound” by the terms of a plea agreement that it accepts, and argues 

that if the legislature “had intended to change this law and allow modifications 

of fixed-sentence pleas, it would have said so directly.” Appellee’s Br. at 13-14. 

We think that the legislature said so directly in Section 35-38-1-17(l). The State 

also mentions Section 35-38-1-17(e), which states that a court “may reduce or 

suspend [a] sentence and impose a sentence that the court was authorized to 

impose at the time of sentencing”; the State contends that “in 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 

 

4 The Stafford court also stated,

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.

86 N.E.3d at 192. Our supreme court granted the State’s petition to transfer on December 19, 2017, and has 

not yet issued an opinion.
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agreement.” Appellee’s Br. at 11. As the Stafford court said, “[w]e cannot agree 

with the State’s tortured interpretation of the plain statutory language.” 86 

N.E.3d at 193.

[A]s 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.

Id.

[14] Based on the foregoing, we believe that Sections 35-35-3-3(e), 35-38-1-17(e), 

and 35-38-1-17(l) may be harmonized to preserve a defendant’s right to 

modification of a fixed sentence imposed under a plea agreement. We 

respectfully disagree with the dissent’s interpretation of these statutes, which 

would effectively render Section 35-38-1-17(l) a nullity. If the legislature

disagrees with our interpretation of Section 35-38-1-17(l), then it may clarify the 

statute accordingly. We hold that modification of Rodriguez’s sentence is 
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permissible under Section 35-38-1-17(l), and therefore we reverse and remand 

for further proceedings consistent with this opinion.5

[15] Reversed and remanded.

Mathias, J., concurs.

Rucker, S.J., dissents with opinion.

 

5 After this appeal was fully briefed, the State submitted a notice of additional authority citing State v. 

Lamaster, 84 N.E.3d 630 (Ind. Ct. App. 2017), trans. not sought. In that case, another panel of this Court relied 

in part on Section 35-38-1-17(e) in holding that the trial court erred in granting Lamaster’s petition to modify 

his fixed sentence imposed under a plea agreement. We find Lamaster unpersuasive, however, because it 

does not even mention Section 35-38-1-17(l). 
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ATTORNEY FOR APPELLANT

Jessica R. Merino

Merino Law Firm, PC

Goshen, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Ellen H. Meilaender

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Alberto Baiza Rodriguez,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

January 11, 2018

Court of Appeals Case No.

20A03-1704-CR-724

Appeal from the Elkhart Superior 

Court

The Honorable David C. 

Bonfiglio, Judge

Trial Court Cause No.

20D06-1503-F6-264

Rucker, Senior Judge, dissenting.

[16] I agree with the majority that “Sections 35-35-3-3 (e) . . . and 35-38-1-17 (l) may 

be harmonized. . . .” Slip op. at 10. But I reach a much different conclusion on 

how these harmonized provisions work together. Therefore, I respectfully 

dissent. 
Court of Appeals of Indiana | Opinion 20A03-1704-CR-724 | January 11, 2018 Page 13 of 16

[17] Enacted in 1980, Indiana Code Section 35-35-3-3 (e) dictates “[i]f the court 

accepts a plea agreement, it shall be bound by its terms.” In like fashion, our 

courts have long declared that a “plea agreement is contractual in nature, 

binding the defendant, the state and the trial court.” Pannarale v. State, 638 

N.E.2d 1247, 1248 (Ind. 1994) (citing State ex rel Goldsmith v. Superior Court, 419 

N.E.2d 109, 114 (Ind.1981)). And “although not a party to the agreement, 

once the court accepts a plea agreement, it is bound by the terms of that 

agreement.” Blackburn v. State, 493 N.E.2d 437, 439 (Ind. 1986). The question 

presented is whether Indiana Code section 35-35-3-3(e) still remains in full force 

and effect in light of subsequent legislative enactments. 

[18] Effective July 1, 2014, as part of a comprehensive revision to the Indiana 

criminal code, the Legislature amended Indiana Code Section 35-38-1-17. Prior 

to the revision the statute was largely focused on prosecutorial approval to the 

modification of a sentence. See Manley v. State, 868 N.E.2d 1175 (Ind. Ct. App. 

2007); Schweitzer v. State, 700 N.E.2d 488 (Ind. Ct. App. 1998). However, the 

Legislature shifted focus and among other things enacted a wholly new 

paragraph “(l)” which provides in relevant part:

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. 

Ind. Code § 35-38-1-17 (l) (emphasis added).
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[19] In construing statutes, our primary goal is to determine and give effect to the 

intent of the legislature. Moryl v. Ranone, 4 N.E.3d 1133, 1137 (Ind. 2014). 

When two statutes on the same subject must be construed together, a court 

should attempt to give effect to both and must attempt to harmonize any 

inconsistencies or conflicts before applying any other rule of statutory 

construction. Id. “As a general rule, there is a presumption that the Legislature 

in enacting a particular piece of legislation has in mind existing statutes 

covering the same subject.” Simmons v. State, 773 N.E.2d 823, 826 (Ind. Ct. 

App. 2002). “When two statutes or two sets of statutes are apparently 

inconsistent in some respects, and yet can be rationalized to give effect to both, 

then it is our duty to do so. It is only when there is irreconcilable conflict that 

we can interpret the legislative intent to be that one statute gives way to the 

other.” Wright v. Gettinger, 428 N.E.2d 1212, 1219 (Ind. 1981). 

[20] In this case both Indiana Code section 35-35-3-3(e) and Indiana Code section 

35-38-1-17(l) address the same subject – plea agreements. And, at first blush, 

they appear to be inconsistent – the earlier statute declaring on the one hand 

that the court is bound by the terms of a plea agreement if the court accepts the 

agreement, while the later statute on the other hand declares a person may not 

waive the right to sentence modification as part of a plea agreement. However, 

closer examination reveals the two statutes may be harmonized. In particular, 

the third sentence of Indiana Code section 35-38-1-17(l) makes clear that the 

statute “does not prohibit the finding of waiver of the right to sentence 

modification for any other reason.” Id. (emphasis added). This language is not 
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in irreconcilable conflict with Indiana Code section 35-35-3-3(e) which declares 

“[i]f the court accepts a plea agreement, it shall be bound by its terms.” Id. 

Instead, “[w]here possible, if conflicting portions of a statute can be reconciled 

with the remainder of the statute, every word in the statute must be given effect 

and meaning, with no part being held meaningless.” State v. Universal Outdoor, 

Inc., 880 N.E.2d 1188, 1191 (Ind. 2008). Such is the case here. Although 

Indiana Code section 35-38-1-17(l) prohibits a plea agreement from containing 

express language waiving the right to sentence modification, the statute does 

not prohibit a finding of waiver on other grounds. To conclude otherwise 

would mean that Indiana Code section 35-38-1-17(l) effectively repealed 

Indiana Code section 35-35-3-3(e). But the Legislature did not expressly repeal 

Indiana Code section 35-35-3-3. And the implied repeal of statutes is 

disfavored under Indiana law. Waldridge v. Futurex Industries, Inc., 714 N.E.2d 

783, 785 (Ind. Ct. App. 1999). “We repeal statutes by implication only where a 

later statute is so repugnant to and inconsistent with an earlier statute that it 

must be assumed the legislature did not intend both statutes to stand.” Id. If at 

all possible, we will adopt a construction that gives effect to both statutes. Id. 

[21] Here, the conflicting provisions of the two statutes may be harmonized in a way 

that gives effect to both. In particular, the trial court lacked the authority to 

modify Rodriquez’s sentence from work release to home detention not because 

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

agreement.” Ind. Code § 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 
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other reason” - namely: because of the bargain Rodriquez struck with the State 

of Indiana that his sentence would be served with a specific entity. More 

specifically, Rodriguez agreed to serve a precise sentence with a specific entity: 

30 months executed to be served on Elkhart County Work Release for his class 

A misdemeanor and level 6 felony offenses; and an additional consecutive fixed 

term of 42 months for his HVSO adjudication also to be served on Elkhart 

County Work Release. Rodriguez was bound by his agreement with the State, 

and having accepted the parties’ agreement the trial court was bound as well. 

See e.g. State v. Smith, 71 N.E.3d 368, 370 (Ind. 2017) (reaffirming long standing 

precedent which declares “[t]he terms of a plea agreement between the State 

and the defendant are contractual in nature. When a trial court accepts a plea 

agreement, it is bound by its terms.”) (internal quotations omitted). 

[22] In essence, it does not appear the Legislature intended to repeal long-standing 

statutory authority or to overrule long-standing judicial precedent by the 

enactment of Ind. Code § 35-38-1-17 (l). I conclude therefore the trial court 

properly denied Rodriguez’s motion to modify his sentence and I would thus 

affirm the trial court’s judgment.