## 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, In diana


## IN THE COURT OF APPEALS OF INDIANA

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

- 1 006

- CM

- 045499
JANUARY 25, 2012 OPINION

– FOR PUBLICATION

SHARPNACK , Senior Judge2 STATEMENT OF THE CASE Timot hy Long appeals his sentence for Class A misdemeanor operating a vehicle while intoxicated, Ind. Code § 9

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- 2(b) (2001), and being a hab itual substance offender, Ind. Code § 35

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- 10 (2006). We affirm. ISSUE Long raises one issue, which we re state as: whether the trial judge erred by rejecting the sentence imposed by the master commissioner who presided at the guilty plea hearing. FACT S AND PROCEDURAL HISTORY I n May 2010, police officers observed Long driving unsafely on W est 34th Street in Indianapolis and stopped his vehicle. Wh ile 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 Sta te 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 co nviction in 2004 and a Class D felony operating a vehicle while intoxicated conviction in 2001. On February 14, 2011, Long ple a d ed guilty before Master Commissioner Teresa Hall to Class A misdemeanor operating a vehicle while intoxicated and being a habit ual3

substance offender in exchange for the State’s dismissal of the other two charges . The written plea agreement provided for a n 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. A ppellant’s App. p. 33; Tr. p. 9. Master Commissioner H all accepted the plea agreement and set the matt er 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

e xecuted in the Marion County Jail and two years executed in the Marion County Community Corrections W ork R elease Program for bein g a habitual substance offender. On March 4, 2011, t he presiding judge, Linda Brown, issued an order declin ing to
approve Maste r Commissioner Hall ’s sentencing recommendation and r eset ting the matter for sentencing. At the sentencing hearing o n 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 impo se his sentence and that Jud ge Brown thus erred by rejecting that sentence. Indiana Code section 33

- 33

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- 16(e) (2004) provides that a Ma rion County master commissioner4

“has the powers and duties prescribed for a magistrate under IC 33

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- 5

- 5 through IC 3 3

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- 9.” Indiana Code chapter 33

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- 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

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- 8(2) (2008) (“Except as
pr ovided under sections 5(14) and 9(b) of this chapter, a magistrate . . . may not enter a final appealable order unless sitting as a judge pr o tempore or a special judge.”). The principal exception to this rule is Indiana Code section 33

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- 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

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- 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 crimi nal trial. Instead, Long ple a d ed 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 t o senten ce him and enter a final order. In Boyer , however, the magistrate presided at the defendant’s criminal trial , i d. at 160, and this Court held that Section 33

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- 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.5

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. Stat e , 947 N.E. 2d 496 (Ind. Ct. App. 2011), fo r support. In that case, the defendant ple a d ed guilty to Class B felony burglary and being a habitual offender , and the State agreed to dismiss the remaining charges. The p lea agreement set

a sixte en - year executed sentence and contain ed a prov ision 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 consi der 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 pr ecluded him from seeking a modification. Id. at 497. In its analysis of the issues, t his 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, a re authorized to enter final orders in criminal trials, conduct sentencing hearings, and impose sentences on convicted pe rsons.” Id. at 498

- 99. We then concluded that the trial court’s incorrect advisement at the6

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 therefor e 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 un necessary 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 C ourt w as 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 . I n fact, detrimental to Long’s own argument, there is no evidence that t he master commissioner even preside d at the defendant’s guilty plea hearing. We would have

con cluded that the master commissioner did not have the authority to enter a final order on the defendant’s motion to modify his sentence. Lon g 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 hearin g.” Appellant’s Reply Br. p. 4. This is not a judgment for us to make. Section 33

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- 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

.7

that a magistrate, and thus a mast er 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 f inal judgment on Long’s sentence. Judge Brown therefo re 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.