from the Elkhart Superior Court he Honorable David C.
Bonfiglio, Judge Trial Court Cause No. 20D06-1503-F6-264
Attorney for Appellant Jessica R. Merino Merino Law Firm, PC
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
Ellen H. Meilaender Supervising Deputy Attorney General
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.
Rodriguez argues that modification of his sentence is
permissible under Indiana Code Section 35-38-1-17(1), 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.
and Procedural History
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
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.
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 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
(2)the court obtains a report from the department of
correction concerning the convicted person's conduct
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
asked the trial court to order a report from Elkhart County
Work Release and set the matter for hearing.
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." The court
referenced Indiana Code Section 35-35-3-3(e), which states,
"If the court accepts a ...