Olivia Covington for www.theindianalawye.com

The Indiana Supreme Court will once again consider when, if ever, fixed-sentence plea agreements can be modified. The court granted transfer to a second sentence-modification appeal after recently hearing a similar case.

The justices last week granted transfer in Alberto Baiza Rodriguez v. State of Indiana, 18S-CR-143, two months after a divided Indiana Court of Appeals instructed the Elkhart Superior Court to reconsider the denial of a sentence modification to Alberton Rodriguez. Rodriguez pleaded guilty to Class A misdemeanor operating while intoxicated and to being a habitual offender pursuant to an agreement that required him to serve six years on work release.

Rodriguez moved for a sentence modification one year after his sentencing, alleging his placement had caused undue hardship on his family. The trial court denied his motion on statutory grounds, but appellate judges Terry Crone and Paul Mathias reversed.

Crone, writing for the majority, determined that Indiana Code section 35-38-1-17(l), when harmonized with I.C. 35-35-3-3(e) and 35-38-1-17(e), preserves a defendant’s right to modification in fixed-plea situations. Section (l) holds that a person is not permitted to “waive the right to sentence modification under this section as part of a plea agreement.”

Crone and Mathias based their holding in part on the ruling in State v. Stafford, 86 N.E.3d 190, 193 (Ind. Ct. App. 2017), which held that, “Unless and until the General Assembly clarifies the statute at issue, it clearly and unambiguously states that offenders ‘may not waive the right to sentence modification … as part of a plea agreement.’” Sen. Mike Young, R-Indianapolis, sought to provide that clarification through Senate Enrolled Act 64, which allows modifications of fixed-sentence pleas only with prosecutorial consent.

Young claimed section (l) was added to the statute to prohibit provisions within plea agreements that explicitly waived the right to sentence modification, not to overturn long-standing sentencing practices. Former Justice and now-Senior Judge Robert Rucker agreed in his dissent to the Rodriguez decision, writing the General Assembly did not intend “to repeal long-standing statutory authority or to overrule long-standing judicial precedent by the enactment of (section (l)).”

The General Assembly passed SB 64 earlier this month and Gov. Eric Holcomb signed it into law on March 13. Meanwhile, the Indiana Supreme Court heard oral argument in the Stafford case on Jan. 26, but has not yet issued an opinion. Oral arguments in Rodriguez have not been scheduled.

The justices also denied transfer to 11 cases last week, including to Jonathan Webster v. State of Indiana, 71A03-1610-CR-2319. Justices Mark Massa, Geoffrey Slaughter and Christopher Goff voted to deny transfer to the child molesting case, but Justice Steven David and Chief Justice Loretta Rush dissented. David wrote in a dissenting opinion – which Rush joined – that the state failed to prove Jonathan Webster molested his niece after June 30, 2008, the “effective date” of the applicable statute.

The full list of transfer actions can be read here.

The Next Level Indiana Trust Fund Investment Board has finalized an agreement with 50 South Capital Advisors, LLC to administer the state’s $250 million fund. The board also has approved its investment policy statement.

The board voted March 15 to authorize the state treasurer to sign the agreement on its behalf.

The board’s investment policy emphasizes good investment performance, growing Indiana’s investment community, and developing technology businesses in Indiana. Investments may be made in venture capital, private credit, private equity and growth. A fund-of-funds approach will be used, and the program administrator will seek to create a diversified portfolio of 20 to 30 funds.

The board’s investment policy statement specifically addresses the investment objectives and strategy; general investment parameters; roles and responsibilities of the program administrator and investment board, and the process for performance evaluation and reporting.

50 South Capital Advisors, LLC will host a Next Level Fund Town Hall meeting on Monday, April 9 at 10 a.m. at The Gem @ Union 525, 525 South Meridian Street, to introduce firm staff to the business, technology and investment community and further discuss Next Level Fund investments.

The Next Level Indiana Trust Fund was established by the Indiana Finance Authority as a charitable trust that operates separately from the state of Indiana. The board acts as the trustee for the fund. It was a key component of Gov. Holcomb’s 2017 Next Level legislative agenda and aims to build and support increased entrepreneurship and innovation in the state.

50 South Capital Advisors, LLC is a global private equity firm with a large Midwestern presence. The firm specializes in small and middle market companies, which makes it well aligned to the mission of the Next Level Indiana Trust Fund.

MARILYN ODENDAHL FOR WWW.THEINDIANALAWYER.COM

Amy St. Eve and Michael Scudder, the two nominees for the 7th Circuit Court of Appeals, breezed through their confirmation hearing Wednesday, facing few pointed questions and not being called to defend any of their past actions.

In less than an hour, St. Eve and Scudder were introduced, made opening statements and fielded questions from the U.S. Senate Committee on the Judiciary. Many members of the committee were not at the hearing, including ranking member Sen. Dianne Feinstein, D-California.

St. Eve, a judge for the U.S. District Court for the Northern District of Illinois, and Scudder, a former counsel in the George W. Bush administration and current partner at Skadden Arps Slate Meagher & Flom LLP in Chicago, were nominated by President Donald Trump. If confirmed, they will replace two recently retired judges from the Chicago appellate court, Ann Claire Williams and Richard Posner, respectively.

Both Illinois Democratic Senators, Richard Durbin and Tammy Duckworth, introduced the nominees. They described St. Eve as a judge who is effective, thoughtful and respectful of everyone who comes into her court. They also praised Scudder’s extensive pro bono work, saying it demonstrated his commitment to the legal profession and to his community.

Sens. John Kennedy, R-Louisiana, and Mazie Hirono, D-Hawaii, asked about precedent and its application in court decisions. Acknowledging that precedent is not always, clear, St. Eve and Scudder said it does provide a guide or roadmap for making decisions in cases with the same or similar fact scenarios.

In response to questions from Sen. Mike Lee, R-Utah, St. Eve and Scudder offered much the same view regarding statutes. They said they would look to the plain meaning of the law and turn to legislative history only if the provision contained any ambiguity. Also, they maintained they would follow the law and, as Scudder said, let the “chips fall where they fall” even if the outcome made them personally uneasy.

“My job is not to make law,” St. Eve said. “My job is to apply the law. I have to apply the law as Congress made it.”

Answering an inquiry from Sen. Richard Blumenthal, D-Connecticut, St. Eve noted sometimes cases come before the courts that present a new issue for which there is no precedent. She pointed to a case she presided over in 2006, United States v. Salah, 03-cr-978 (N.D. Ill.) that was one of the first terrorism trials in the Northern Illinois District Court. To determine how to handle matters related to the Classified Information Procedures Act, St. Eve told the senator she looked to analogous statues.

St. Eve and Scudder also outlined what qualities they considered more admirable in a judge. Again, in response to Blumenthal, St. Eve said as a district court judge, she tried to keep an open mind and maintain control of her courtroom through civility. Scudder said good judges approach cases with an open mind, let every lawyer make his or her arguments and remain humble.

The nominees dodged a question from Hirono about how the Trump Administration is choosing candidates for the federal bench. The Senator said 70 percent of the nominees had been picked by either the Federalist Society or the Heritage Foundation, and she asked St. Eve and Scudder what they thought of the outsourcing the selection of judicial nominees.

St. Eve and Scudder declined to answer, saying it would be inappropriate for either of them to comment on the process for choosing federal judges.

In his first question to St. Eve, Durbin asked about the trial she presided over that involved Donald Trump when he was still a real estate developer. Jacqueline Goldberg sued the Trump organization after it changed a purchase agreement she had already signed when she bought two condominiums in the Trump International Hotel and Tower in Chicago. The case, Goldberg v. 401 North Wabash Venture LLC, 09-cv-6455 (N.D.Ill.), ended with a favorable verdict and ruling for the defendant.

Afterward, Durbin said, Trump tweeted he was pleased with the outcome. St. Eve noted one of her court employees had told her that, but she, herself did not see the future President’s message.

“I don’t follow tweets,” she said.