Elmore v. State

• Decision Date: 01 May 1978
• Docket Number: No. 2-876,2-876
• Citation: 176 Ind.App. 306,375 N.E.2d 660
• Parties: Jimmie Lee ELMORE, Andrea Lamb and Johnny Montgomery, Appellants, v. STATE of Indiana, Appellee. A 306.
• Court: Indiana Appellate Court

Page 660

375 N.E.2d 660

176 Ind.App. 306

Jimmie Lee ELMORE, Andrea Lamb and Johnny Montgomery, Appellants, v. STATE of Indiana, Appellee.

No. 2-876 A 306.

Court of Appeals of Indiana,Second District.

May 1, 1978.

Bruce N. Bagni, Bagni, Giddings & Sherman, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

Elmore, Lamb, and Montgomery were tried by the court and convicted of Theft of property valued over $100.00 (Count I) and Conspiracy to Commit Theft (Count II). Each was fined $100.00 and sentenced to one to ten years imprisonment for the theft and two to fourteen years for the conspiracy. On appeal they assign as error: (1) the court's failure to approve their plea bargain and (2) insufficiency of the evidence to sustain their convictions. We find no cause for reversal in either assignment, but sua sponte we hold that the lesser offense of theft is merged into the greater offense of conspiracy and therefore remand the cause for vacation of the theft sentence.

I.

When the case was called for trial the deputy prosecutor and the attorneys for the defendants informed the court that all defendants and the State had entered into a plea bargain whereby the defendants would plead guilty to Count I, theft, and the State would dismiss Count II, conspiracy, and would recommend that Montgomery and Lamb be sentenced under the Minor's Statute. ¹ There was to be no sentencing recommendation for Elmore who was not a minor. No one mentioned whether the State's part of the bargain (i. e., the prosecutor's agreement to dismiss Count II and to recommend sentencing under the Minor's Statute) had been reduced to writing as required by Ind.Ann.Stat. §§ 35-5-6-1(b) and 35-5-6-2(a) (Burns Code Ed., 1977 Supp.) ² nor is there anything in the record to indicate that it was written. We must therefore assume that it was wholly oral.

After asking questions of counsel by which he confirmed his understanding of the terms of the plea bargain, the court asked the three defendants under oath whether they understood the theft charge. Lamb and Montgomery said they did but Elmore said he did not. The judge made a brief attempt to explain it to him and then announced that there was no way he could do so and "that under the circumstances we better go to trial."

Whereupon, without further comment from anyone, the trial began. It ended in a finding that all defendants were guilty on both counts, for which they received statutorily authorized sentences greater than they would have received had their plea bargain been approved.

Although this appeal is taken in the names of all three defendants, error with respect to the aborted plea bargain is claimed on behalf of only two: Lamb and Montgomery. They contend that the court erred in rejecting their guilty pleas solely on the ground that Elmore apparently misunderstood the nature of the theft charge. They cite but one case, Harshman v. State (1953), 232 Ind. 618, 115 N.E.2d 501, which they say holds that "(a) defendant has the prerogative to voluntarily and intelligently plead guilty in any criminal case". What that case actually holds is that:

"Under our practice an accused may enter a plea of guilty in any case, and thereby waive his constitutional right to trial by jury. But to be valid and binding upon the accused, such a plea must be made by the accused intelligently, advisedly and understandingly, with full knowledge of his rights, and with the considered approval of the judge before whom he stands charged." (232 Ind. at 620, 115 N.E.2d at 502.)

In substance, the appellants concede as much by quoting Ind.Ann.Stat. § 35-4.1-1-3 (Burns, 1975), which provides that a court shall not accept a guilty plea from a defendant without first determining that he understands the nature of the charge and informing him what he is admitting, what rights he is waiving, what sentence he may receive, and that the court is not bound by any agreement he may have with the prosecutor. ³ But without citing authority, appellants also contend that once the court so informs an accused and is satisfied with his responses, he should accept the plea. They further contend that the judge should have made greater effort to explain the charge to Elmore, and failing that, should have accepted Lamb and Montgomery's pleas after completing his dialogue with them. In effect they are contending that the trial court had a duty to make a reasonable effort to effectuate their oral plea bargain and that he failed to do so.

Whatever merits their arguments may have, it fails to mention or to reckon with the requirements of Indiana's plea bargaining statutes, Ind.Ann.Stat. §§ 35-5-6-1, 2 & 3 (Burns 1977 Supp.), which became effective July 29, 1975, months before appellants' plea bargain was rejected.

§ 35-5-6-2 has been interpreted in but two cases: Gross v. State (3d Dist., Ind.App.1975), 338 N.E.2d 663, and Henry v. State (3d Dist., Ind.App.1977), 370 N.E.2d 972. In Gross the statute did not apply because defendant's guilty plea was accepted before it became effective. However, a Gross footnote observes that the statute "now requires the trial court to advise the defendant if he will accept the prosecutor's sentencing recommendation prior to the acceptance of defendant's guilty plea." Judge Staton further opined: "Hopefully, strict adherence to the requirements of IC 1971, 35-5-6-2 by trial courts will considerably reduce the number of post conviction relief petitions and appeals asserting the right to withdrawal of petitioner's guilty plea because of promises regarding sentencing." In Henry, on the other hand, appellant offered her guilty plea after the statute became effective. The offer was prompted by the prosecutor's promise to recommend sentencing under the Minor's Statute, but he filed no written recommendation. The court accepted the plea but did not follow the recommendation. The defendant brought a post-conviction proceeding to set the plea aside. Judge Staton, speaking for the majority, said:

"We agree with the State's contention that the trial court was not bound to follow the procedure outlined in 35-5-6-2 because no written recommendation from the prosecutor was ever filed with it. As no written recommendation was filed, either before or after Henry entered her guilty plea, there was nothing for the court to act upon. However, because Henry's plea was induced by an alleged recommendation from the prosecutor that she be sentenced pursuant to the Minor's Sentencing Act, she should have been advised that no such recommendation was before the court and could not be received by the court after entry of her plea." (370 N.E.2d at 975.)

Henry's guilty plea was therefore ordered set aside as having been involuntarily made because the trial court had failed to tell her that the prosecutor had made no recommendation.

Since both Gross, supra, and Henry, supra, unlike the case now before us, were concerned with plea bargained guilty pleas which had been accepted, neither expressly answers the question now before us: Whether, under the plea bargain statute, a trial court has any duty to consider or to assist in effectuating an unwritten plea bargain. But Henry does tell us that a prosecutor's unwritten proposal is no proposal at all. With that proposition we are in full agreement. The language of § 35-5-6-2(a) ("No recommendation may be made by the prosecutor to a court . . . except (1) in writing . . . .") permits of no other interpretation.

Whatever may have been the judge's reason for abandoning his interrogation of the appellants, which he had begun in apparent anticipation of accepting their guilty pleas, that abandonment gives them no cause for complaint. They, through their attorneys, had assisted the prosecutor in presenting him with an unwritten plea bargain, a nullity which imposed upon him no duty. He paid it more heed than it merited. We are not suggesting, however, that had the plea bargain been presented in writing, as required by the statute, that it would not have been entitled to serious consideration from the trial judge. We believe a tendered guilty plea properly presented as a part of a valid plea bargain is entitled to serious consideration by reason of both the defendant's interest in fair treatment and the public's interest in expeditious disposition of criminal cases. Which is not to say, of course, that the avoidance of trials and the conservation of judicial time should be the court's paramount consideration in deciding whether to approve a plea bargain. Such a simplistic approach would almost automatically result in approval. With the aid of the presentence report and the evidence which § 35-5-6-2(a) contemplates the court shall have before it prior to determining whether to accept the bargained guilty plea, the court must certainly consider whether the recommended sentence is commensurate with the gravity of the offense, the defendant's degree of culpability and the apparent availability of clear and convincing evidence of his guilt. Ballard v. State (1974), 262 Ind. 482, 502, 318 N.E.2d 798, 810. But whether the decision is to approve or to disapprove the bargain, the decision should be "for good cause". United States v. Martinez (CA 5, 1973), 486 F.2d 15, 20-21, and the federal authorities it cites.

II.

Disposition of the contention that the evidence is insufficient to sustain the conviction requires a detailed review of the evidence. The State's evidence consists of (1) the testimony of a Mr. Starkey who identified exhibit one as a CB radio which had been removed, without his knowledge or consent, from his parked automobile; (2) the testimony of police officer Bowman, who on February 12, 1976, witnessed what he believed was an attempt by the three defendants to sell two CB radios to the operator of a filling station at 38th Street and Sherman Drive, Indianapolis; and (3) the testimony of police...