Crone, J.
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(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.
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”).
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. …
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.” 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 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.”
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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. …
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.” …
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. … 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.
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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 permissible under Section 35-38-1-17(l), and therefore we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Mathias, J., concurs.
Rucker, S.J., dissents with opinion.
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.
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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 other reason” – namely: because of the bargain Rodriquez struck with the State of Indiana that his sentence would be served with a specific entity. … 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) …
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.