Crider v. State

• Decision Date: 21 March 2013
• Docket Number: No. 91S05–1206–CR–306.,91S05–1206–CR–306.
• Parties: Todd J. CRIDER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

984 N.E.2d 618

Todd J. CRIDER, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 91S05–1206–CR–306.

Supreme Court of Indiana.

March 21, 2013.

Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 91A05–1108–CR–389

RUCKER, Justice.

In this case we conclude that the waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the Defendant did not bargain for the sentence.

Facts and Procedural History

On December 1, 2010 Todd J. Crider was charged in White County with theft, a class D felony, and he was also alleged to be a habitual offender. On May 31, 2011 Crider and the State submitted to the trial court a written plea agreement which provided that Crider would plead guilty as charged and admit his status as a habitual offender. Under terms of the agreement Crider was to be sentenced to a term of three years in the Department of Correctionenhanced by three years for the habitual offender allegation. At the time of the agreement Crider had been convicted in Tippecanoe County of two counts of theft; one count of attempted fraud; adjudged to be a habitual offender; and ordered to serve a partially suspended 545–day sentence.

As originally drafted, a line in the plea agreement provided “The sentence in Count II [the habitual offender count] shall be served concurrent with an habitual offender enhancement received in Tippecanoe County.” App. at 9. However, this line was scratched out and was initialed by both Crider and his attorney. Also as originally drafted the plea agreement provided for a sentence of one and one-half years for theft enhanced by one and one-half years for the habitual offender adjudication. This provision too was scratched out, replaced with three years, and initialed by Crider, his attorney, and the deputy prosecutor. The agreement further provided in pertinent part:

The Defendant waives his right to appeal any sentence imposed by the trial court that is within the range set forth in the plea agreement. Further, the Defendant knowingly, intelligently and voluntarily waives his right to challenge the sentence on the basis that it is erroneous.

App. at 9. During its colloquy with Crider on his decision to plead guilty the trial court declared “if you've been convicted recently in Tippecanoe County, do you understand that the sentences imposed in this case, part of them or all of them, may have to be served consecutively to one another, one after the other?” Tr. at 16. The trial court continued, “there may be some case law out there that would require if you are convicted of pending habitual offender charges, that that portion of your sentences, if they are similar, they may be served concurrently, but that's subject to Court interpretation, and we'll learn that at the sentencing hearing.” Tr. at 16–17. Ultimately the trial court determined that Crider entered the plea voluntarily and that there was a factual basis for the same. The trial court then took the plea under advisement and ordered a presentence investigation report.

Based on the trial court's representation at the plea hearing, on the day of sentencing, July 18, 2011, Crider filed a Sentencing Memorandum that contended the habitual offender enhancement he was about to receive in this case could not be ordered to be served consecutively to the habitual offender enhancement Crider received in Tippecanoe County. Crider reiterated this point orally to the trial court at the sentencing hearing. See App. at 26. Accepting the parties' plea agreement the trial court sentenced Crider to three years for the theft conviction enhanced by three years for the habitual offender adjudication for a total executed term of six years. Rejecting Coder's argument concerning the Tippecanoe case the trial court declared:

The Court has considered the defendant's Sentencing Memorandum. I interpret Indiana Code 35–50–2–8 with the circumstances that we have, to require that the habitual offender count enhance the sentence the defendant is convicted of here in White County. According to this ordering, that White County sentence is to be served consecutively to the sentence imposed out of Tippecanoe County....

Tr. at 28. Crider appealed raising a single issue: “Whether the trial court's order that Todd Crider's habitual offender enhancement be served consecutively to the habitual offender enhancement in a case from Tippecanoe County was illegal.” Br. of Appellant at 1. In a divided opinion the Court of Appeals dismissed Crider's appeal on grounds that under the terms of the plea agreement Crider agreed that he “knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous.” Crider v. State, 966 N.E.2d 675, 676 (Ind.Ct.App.2012) (quoting App. at 9). Having previously granted transfer we now reverse the judgment of the trial court.

Discussion

Indiana Code section 35–50–2–8, the habitual offender statute, provides in relevant part that a person is a habitual offender if the jury or the court finds that the person “has accumulated two (2) prior unrelated felony convictions.” And Indiana Code section 35–50–1–2 governs the authority of courts to order consecutive sentences. In Starks v. State, 523 N.E.2d 735 (Ind.1988) this Court addressed for the first time the propriety of a trial court ordering sentences for two habitual offender counts to run consecutively. Initially we noted that although the habitual offender statute provides that a person may be sentenced as a habitual offender for “any felony,” the statute did not answer the question of “whether the legislature has sanctioned the pyramiding of habitual offender sentences.” Id. at 736. Analyzing the habitual offender statute—section 35–50–2–8—and the consecutive sentencing statute—section 35–50–1–2—we concluded that the imposition of consecutive habitual offender sentences was improper. In doing so the Court noted that although section 35–50–1–2 granted sentencing courts the discretion to order consecutive sentences, this discretion is limited by the rules of rationality and constitutional restrictions. Starks, 523 N.E.2d at 736. We observed that on the one hand a sentence enhanced by the habitual offender statute is based upon the existence of two prior unrelated felony convictions. On the other hand consecutive sentences are based upon the principle that each separate and distinct criminal act should receive a separately experienced punishment. Id. at 737. Further the Court observed that the statute was “silent on the question of whether courts have the authority to require habitual offender sentences to run consecutively, when engaged in the process of meting out several sentences.” Id. at 737. With the foregoing considerations in mind the Court held “[i]n the absence of express statutory authorization for such a tacking of habitual offender sentences, there is none.” Id.

Since Starks, the Court of Appeals has also addressed the issue of whether consecutive habitual offender sentences are proper. In Smith v. State, 774 N.E.2d 1021 (Ind.Ct.App.2002), trans. denied, the court found that imposing consecutive habitual offender enhancements was improper, even where the enhancements arose from separate and unrelated trial or sentencing hearings. Id. at 1024;see also Ingram v. State, 761 N.E.2d 883, 885–86 (Ind.Ct.App.2002) (declaring trial court exceeded its legislative authorization in imposing consecutive habitual offender sentences even though the sentences arose from a single sentencing hearing rather than a single criminal trial).

As this Court has more recently declared: “[u]nder Indiana law, a trial court cannot order consecutive habitual offender sentences.” Breaston v. State, 907 N.E.2d 992, 994 (Ind.2009). And “[t]his holds true whether the concurrent enhanced sentence is imposed in a single proceeding or in separate proceedings.” Id. at 995.

In this case the State contends that as a “general rule” a trial court may not impose consecutive habitual offender enhancements. Br. of Appellee at 4. But the State argues the general rule does not apply in this case citing authority standing for the proposition that a defendant “may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence.” Br. of Appellee at 4 (quoting Lee v. State, 816 N.E.2d 35, 40 (Ind.2004)); see also Stites v. State, 829 N.E.2d 527, 529 (Ind.2005) (rejecting argument that plea agreement involving illegal consecutive sentence is invalid); Collins v. State, 509 N.E.2d 827, 833 (Ind.1987) (rejecting argument that felony conviction underlying habitual offender adjudication was illegal where conviction was based on plea agreement). But these cases are distinguishable.

Here Crider's plea agreement did not “call[ ] for an illegal sentence.” Crider pleaded guilty under terms of an agreement that provided for a three-year sentence in the Department of Correction for the offense of theft enhanced by three years for his adjudication as a habitual offender. The agreement was silent on whether the sentence imposed was to run concurrently or consecutively with the sentence imposed in another county. There was nothing unusual or illegal about this arrangement. The problem however is that as a result of an apparent misapprehension of the law, the trial court was under the impression that it was “require[d]” to order the habitual offender-enhanced sentence imposed in this case to run consecutively to the habitual offender-enhanced sentence imposed by the court in Tippecanoe County. Tr. at 28. This aspect of the sentence was not a part of the parties' agreement. In consequence the...