In re Flatt-Moore

• Decision Date: 12 January 2012
• Docket Number: No. 30S00–0911–DI–535.,30S00–0911–DI–535.
• Parties: In the Matter of Nancy J. FLATT–MOORE, Respondent.
• Court: Indiana Supreme Court

959 N.E.2d 241

In the Matter of Nancy J. FLATT–MOORE, Respondent.

No. 30S00–0911–DI–535.

Supreme Court of Indiana.

Jan. 12, 2012.

Kevin P. McGoff, James J. Bell, Indianapolis, IN, Attorneys for the Respondent.

G. Michael Witte, Executive Secretary, David B. Hughes, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.

Attorney Discipline Action

PER CURIAM.

We find that Respondent, Nancy J. Flatt–Moore, engaged in attorney misconduct by surrendering her prosecutorial discretion in plea negotiations entirely to the pecuniary demands of the victim of the crime. For this misconduct, we find that Respondent should receive a public reprimand.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's “Verified Complaint for Disciplinary Action,” and on the post-hearing briefing by the parties. Respondent's 1998 admission to this state's bar subjects her to this Court's disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

Background

Findings of Fact. The Hearing Officer filed her “Hearing Officer's Report,” which contained her proposed findings of fact, on April 21, 2011. Concluding that these proposed findings are supported by the evidence, we accept them as summarized below.

In April 2006, “JH” ordered agricultural products from “Big Rivers,” paying with three checks totaling $68,956.91, which were all dishonored for insufficient funds. Big Rivers later claimed that JH owed Big Rivers $11,934 in addition to the amount of the three checks, asserting that it had made a billing error by under-pricing one of the items sold to JH. On July 26, 2006, an information was filed against JH based on the three dishonored checks, charging JH with Class C felony Check Fraud under Ind.Code § 35–43–5–12. ¹

A newly elected prosecutor for Hancock County, Dean Dobbins (“Dobbins”) took office in January 2007. Jerry Bean (“Bean”) served as Chief Deputy. In early 2007, Respondent joined the prosecutor's office as a deputy prosecutor and was assigned to prosecute the JH case.

Dobbins' campaign ads stated that Dobbins would have a policy of police and victim approval of felony plea agreements. Respondent testified that the prosecutor's policy required the approval of law enforcement and the victim before the office would agree to plea agreements. Based on Dobbins' testimony, however, the hearing officer found that the policy of the prosecutor's office did not include giving the victim of a property crime the right to dictate the terms of restitution as a pre-condition to his office agreeing to a plea.

In May 2007, after communicating with an attorney representing Big Rivers regarding its monetary demands, Respondent offered a plea agreement under which JH would plead guilty to Class D felony Check Fraud but would be convicted and sentenced as a Class A misdemeanor pursuant to Ind.Code § 35–50–2–7, ² on the condition that Respondent agree to whatever terms and amounts Big Rivers was demanding (“First Plea Offer”).

Big Rivers demanded that JH pay Big Rivers $108,501.60 on or before August 1, 2007, which was nearly $40,000 more than the principal amount of the three dishonored checks. The difference consisted of (1) Big Rivers' alleged billing error of nearly $12,000; (2) $9,500 in attorneys' fees; and (3) over $18,000 in interest, calculated at 18% interest per annum. JH objected to these amounts as excessive and requested that the matter of the amount of restitution be decided by the judge. Big Rivers would not agree to that, and Respondent likewise refused to agree, telling defense counsel: “I don't have authority to make an offer that the victim doesn't agree to. You're trying to sell the wrong person. Go sell Big Rivers. If they agree, I don't care what it is.”

JH decided to take the First Plea Offer because it the only way he could resolve the matter on a misdemeanor basis short of trial. When questioned by the judge, JH stated that he had entered into the plea agreement as a free and voluntary act without force or threats. JH, however, did not pay the full amount of $108,501.60 by the due date, and Respondent had the plea agreement withdrawn. By late November 2007, JH had paid Big Rivers the principal amount of the three dishonored checks, plus 8% interest, for a total of $76,908.08.

Respondent sent a fax to counsel for JH, saying that counsel for Big Rivers wanted the 18% interest to continue until all items were paid in full. On November 29, 2007, Respondent faxed a new plea offer (“Second Plea Offer”) to counsel for JH. The Second Plea Offer stated:

I am making an offer that would conclude the criminal case. It would leave any additional civil issues for Mr. [JH] and Big Rivers to determine between themselves, by whatever means, at a later date and without intervention of the criminal courts. In exchange for a plea of guilty to the Class D felony lesser included, the State would agree to the following sentence: 18 months at the [Indiana Department of Correction], all suspended, with Defendant retaining the right to petition for AMS [i.e., alternative misdemeanor sentencing] after successful completion of probation. Terms of probation include repayment as restitution of the face value of the dishonored checks, plus 8% interest from the date of the issuance of the checks until the full face value has been paid. It is my understanding the restitution terms I propose on the criminal case have already been met. It is not a term of probation, nor a requirement for consideration of AMS sentencing, that your client pay any claims made by Big Rivers as to the civil aspects of the case, as those issues are outside the consideration of the criminal case. ....

Thus, the Second Plea Offer, which was approved by either Dobbins or Bean, did not depend on JH's concession to Big Rivers' demands for additional payments. And, in contrast to the First Plea Offer, the Second Plea Offer would not allow for immediate conviction and sentencing as a Class A misdemeanor.

JH's counsel did not inform JH of the Second Plea Offer.³ Respondent did not follow up to ensure that counsel had received the fax and that JH had been informed. After a jury trial, JH was convicted of Class C felony Check Fraud, and the Indiana Court of Appeals affirmed in an unpublished decision. After the criminal conviction, Big Rivers filed a civil lawsuit against JH seeking, among other things, treble damages, attorneys' fees, reimbursement for expenses, and 18% interest. (The outcome of the civil suit is not disclosed in the record.)

The Commission's Charges. The Commission charged Respondent with violating Rule 1.7(a)(2) by representing a client (the State) when the representation would be materially limited by the attorney's responsibilities to a third person (Big Rivers), i.e., by allowing Big River to advance its own interests in dictating the terms of restitution required to resolve the JH criminal case by a plea agreement. The hearing officer concluded that that Commission had not met its burden of proof on this charge, and the Commission does not challenge this conclusion. We therefore summarily accept the hearing officer's conclusion on this charge.

The Commission also charged Respondent with violating Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice) by allowing Big Rivers to dictate as a condition of the First Plea Offer an amount of restitution that would have exceeded what was allowed by Indiana Code § 35–50–5–3 (“Restitution Statute”) and was thus “extra-legal.” The hearing officer concluded that Respondent violated this rule, and Respondent seeks review of this determination.

Discussion

Propriety of Surrendering to a Crime Victim Prosecutorial Discretion in Plea Negotiations. The core of the Commission's complaint against Respondent is that she improperly allowed the victim of a crime to dictate the terms of a plea agreement, including provisions that the trial court could not impose.

A criminal defendant is not entitled to a plea offer of any sort and is free to reject any plea offer that is not acceptable to him or her. A criminal defendant may consent to a sentence that would be otherwise unauthorized to gain benefits in a plea agreement. For example, in Stites v. State, 829 N.E.2d 527 (Ind.2005), this Court upheld ...