Eaton v. State
| Decision Date | 02 May 2005 |
| Docket Number | No. 42A05-0407-CR-354.,42A05-0407-CR-354. |
| Citation | 825 N.E.2d 1287 |
| Parties | Mitchell J. EATON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
J. Dirk Carnahan, Vincennes, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
Mitchell Eaton pled guilty to Dealing in a Schedule II Controlled Substance, a Class B felony. He asserts on appeal that his sentence was inappropriate in light of the nature of the offense and his character and asks this Court to revise his sentence. We conclude that the trial court erroneously sentenced Eaton because it imposed the presumptive sentence after expressly finding that the mitigating factors outweighed the aggravating factors, and we remand for resentencing.
Acting on a tip that Eaton was a "junkie," officers from the Vincennes Police Department arrived at Eaton's house and knocked on his door. When Eaton answered the door, the officers read him his Miranda rights. They then asked Eaton if he had any methamphetamine inside the residence, and Eaton responded, "Maybe." The officers again advised Eaton of his rights and gave him a consent to search form. Eaton explained that he understood his rights. While in the middle of filling out the form, he invited the officers inside. He led the officers through the house and told them where they could find methamphetamine and certain tools and precursors used in making methamphetamine. Eaton was arrested and, while he was being transported to jail, an officer told him that the police would be interested in searching a shoe shop that Eaton owned and operated in town. Eaton gave the officer the keys to his shop and expressed his consent to the search of the shop.
Eaton was charged with Dealing in a Schedule II Controlled Substance as a Class B felony.1 He agreed to plead guilty as charged, and in exchange for the guilty plea, the State agreed, in pertinent part, that Eaton would be sentenced to no more than ten years, the presumptive sentence for a Class B felony,2 and that the State would dismiss a Class A felony charge for manufacturing methamphetamine that was pending under a different cause number. The trial court accepted the plea and sentenced Eaton to ten years, suspended to probation. He was ordered to serve six years in the Wabash Valley Regional Community Corrections Work Release Program and four years on supervised probation. Eaton now appeals.
On appeal Eaton asserts that this Court should exercise its power to revise his sentence pursuant to Indiana Appellate Rule 7(B), which provides: "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." More specifically, he asserts that his sentence should be below the presumptive based upon the trial court's own analysis of the aggravators and mitigators. At the sentencing hearing, the trial court found no aggravators and found the existence of two mitigators. First, the court found "as the significant mitigator," Tr. p. 33, that Eaton had no history of delinquency or criminal activity. Second, the court found as a mitigator that Eaton is likely to respond affirmatively to probation or short term imprisonment. The court then balanced the aggravators and mitigators and in so doing explained it "considers the balance between aggravating and mitigating to be in favor of mitigation, because the Court finds that the mitigating factors outweigh the aggravating factors." Id. Despite this finding, the court imposed a sentence of ten years, the presumptive sentence for a Class B felony and the maximum that Eaton could have received under the terms of the plea agreement. The entire sentence was suspended to probation.
We need not reach the issue of whether Eaton's sentence was "inappropriate in light of the nature of the offense and the character of the offender" under Appellate Rule 7(B) because we find that the sentence was erroneous. Our primary role is to review sentences to ensure that they are based on appropriate aggravators and mitigators. The judge's weighing of the aggravators and mitigators in this case demonstrates that the imposition of the presumptive sentence was erroneous because the judge expressly found that the mitigators outweigh the aggravators. Undoubtedly this was so because the judge found two mitigators and no aggravators.
The dissent would have us forego any review of this sentence because the sentence imposed was within the bounds of the plea agreement. We agree that if the question here were the appropriateness of the sentence under Appellate Rule 7(B), then Eaton waived his right to argue that his sentence was inappropriate by accepting a plea agreement in which he agreed to a sentencing range less than the range authorized by statute. See Wilkie v. State, 813 N.E.2d 794, 804 (Ind.Ct.App.2004),trans. denied; Gist v. State, 804 N.E.2d 1204, 1206-07 (Ind.Ct.App.2004).3 But the question here is not the imposition of an inappropriate sentence; rather, the issue is whether the court imposed an erroneous sentence. By accepting the plea agreement that called for argued sentencing within certain parameters, we do not conclude that Eaton gave up his right to have the judge weigh the aggravators and mitigators and impose a sentence in line with the judge's finding of the balance between them. See, e.g., Ind.Code § 35-38-1-7.1 (); Ind. Code § 35-50-2-5 (). In fact, the very purpose of an argued sentencing hearing is for the trial court to identify aggravating and mitigating circumstances and properly balance them. This purpose is even more apparent in a case where the cap on the defendant's sentence is the presumptive. In such a case, the only issue to be argued before the judge is whether the sentence should be below the presumptive, i.e., mitigated. Thus, we conclude that a plea agreement calling for the parties to argue sentencing does not result in the offender waiving his right to complain about an erroneous sentence.4
Our opinion does not change because this sentence was suspended. Indeed, it is suspended for now, but until Eaton serves his entire ten-year probation period there remains the possibility that he will have to serve ten years executed should the court find that he violated any condition of his probation. See Ind.Code § 35-38-2-3(g)(3) (). In so deciding, we are mindful that another panel of this Court has, in an Indiana Appellate Rule 7(B) analysis, drawn a distinction between the maximum sentence and the maximum punishment. See Beck v. State, 790 N.E.2d 520, 522 (Ind.Ct.App.2003),trans. not sought. In this case, as we stated earlier, the appropriateness of Eaton's sentence under Rule 7(B) is not at issue; the fact that the sentence imposed was erroneous is at issue here. We find persuasive the rationale of the Missouri Court of Appeals when discussing the effect of a suspended sentence: "When a court suspends the execution of sentence, only the act of executing the sentence has been suspended; a criminal conviction has been entered and the sentence has been assessed." Taylor v. Missouri, 25 S.W.3d 632, 633 (Mo.Ct.App.2000); see also Cox v. State, 792 N.E.2d 898, 907 n. 6 (Ind.Ct. App.2003) (), trans. denied.; Beck, 790 N.E.2d at 523 (Ind.Ct.App.2003) (May, J., concurring in result) ().
We therefore remand for imposition of less than the presumptive sentence. See Laughner v. State, 769 N.E.2d 1147, 1162 (Ind.Ct.App.2002) (), trans. denied, cert. denied.
Reversed and remanded.
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