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, Indiana

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. 49F10-1006-CM-045499

JANUARY 25, 2012

OPINION – FOR PUBLICATION

SHARPNACK, Senior Judge
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STATEMENT OF THE CASE

Timothy Long appeals his sentence for Class A misdemeanor operating a vehicle 

while intoxicated, Ind. Code § 9-30-5-2(b) (2001), and being a habitual substance 

offender, Ind. Code § 35-50-2-10 (2006). We affirm.

ISSUE

Long raises one issue, which we restate as: whether the trial judge erred by 

rejecting the sentence imposed by the master commissioner who presided at the guilty 

plea hearing.

FACTS AND PROCEDURAL HISTORY

In May 2010, police officers observed Long driving unsafely on West 34th Street 

in Indianapolis and stopped his vehicle. While 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 State 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 conviction in 2004 and a Class D felony operating a vehicle while 

intoxicated conviction in 2001.

On February 14, 2011, Long pleaded guilty before Master Commissioner Teresa 

Hall to Class A misdemeanor operating a vehicle while intoxicated and being a habitual 
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substance offender in exchange for the State’s dismissal of the other two charges. The 

written plea agreement provided for an 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. Appellant’s App. p. 33; Tr. p. 9. Master Commissioner Hall 

accepted the plea agreement and set the matter 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 

executed in the Marion County Jail and two years executed in the Marion County 

Community Corrections Work Release Program for being a habitual substance offender.

On March 4, 2011, the presiding judge, Linda Brown, issued an order declining to 

approve Master Commissioner Hall’s sentencing recommendation and resetting the 

matter for sentencing. At the sentencing hearing on 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 

impose his sentence and that Judge Brown thus erred by rejecting that sentence. Indiana 

Code section 33-33-49-16(e) (2004) provides that a Marion County master commissioner 
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“has the powers and duties prescribed for a magistrate under IC 33-23-5-5 through IC 33-

23-5-9.” Indiana Code chapter 33-23-5 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 § 33-23-5-8(2) (2008) (“Except as 

provided under sections 5(14) and 9(b) of this chapter, a magistrate . . . may not enter a 

final appealable order unless sitting as a judge pro tempore or a special judge.”). The 

principal exception to this rule is Indiana Code section 33-23-5-9(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 § 33-23-5-5(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 criminal trial. Instead, Long 

pleaded 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 to sentence him and enter a final 

order. In Boyer, however, the magistrate presided at the defendant’s criminal trial, id. at 

160, and this Court held that Section 33-23-5-9(b) gives “a magistrate presiding over a 

criminal trial the power to enter a final order and to enter a judgment of conviction,” id.
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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. State, 947 N.E.2d 496 (Ind. Ct. App. 2011), for support. In 

that case, the defendant pleaded guilty to Class B felony burglary and being a habitual 

offender, and the State agreed to dismiss the remaining charges. The plea agreement set

a sixteen-year executed sentence and contained a provision 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 consider 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 precluded him 

from seeking a modification. Id. at 497. In its analysis of the issues, this 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, are authorized to enter final orders in 

criminal trials, conduct sentencing hearings, and impose sentences on convicted persons.” 

Id. at 498-99. We then concluded that the trial court’s incorrect advisement at the 
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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 therefore 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 unnecessary 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 

Court was 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. In 

fact, detrimental to Long’s own argument, there is no evidence that the master 

commissioner even presided at the defendant’s guilty plea hearing. We would have 

concluded that the master commissioner did not have the authority to enter a final order 

on the defendant’s motion to modify his sentence.

Long 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 hearing.” Appellant’s 

Reply Br. p. 4. This is not a judgment for us to make. Section 33-23-5-9(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.
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that a magistrate, and thus a master 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 final judgment on Long’s sentence. Judge Brown therefore 

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.