Mendoza v. State, No. 49A02-0609-CR-759.

Docket NºNo. 49A02-0609-CR-759.
Citation869 N.E.2d 546
Case DateJuly 13, 2007
CourtCourt of Appeals of Indiana
869 N.E.2d 546
Francisco MENDOZA, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A02-0609-CR-759.
Court of Appeals of Indiana.
July 13, 2007.

[869 N.E.2d 549]

David Pardo, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.


Appellant-defendant Francisco Mendoza appeals his convictions for Attempted Aggravated Battery,1 a class B felony, Burglary,2 a class C felony, Theft,3 a class D felony, Resisting Law Enforcement,4 a class D felony, Criminal Recklessness,5 a class D felony, Pointing a Firearm,6 a class

869 N.E.2d 550

D felony, and Carrying a Handgun Without a License,7 a class A misdemeanor.

In particular, Mendoza contends that the trial court should have granted his motion to dismiss because the State improperly withdrew from a plea bargain, dismissed the charges, and refiled the charging information with a new charge included. He also argues that the evidence is insufficient to support his conviction for attempted aggravated battery. Finally, Mendoza appeals the sentences imposed by the trial court, contending that the trial court considered improper aggravators, improperly rejected proffered mitigators, imposed sentences that are inappropriate in light of the nature of the offenses and his character, and erroneously imposed consecutive, enhanced sentences. Finding no error, we affirm the judgment of the trial court and remand with instructions to amend the abstract of judgment by deleting the reference to an attempted murder conviction and adding an attempted aggravated battery conviction in its place.

FACTS

Early on the morning of July 31, 2005, Mendoza burglarized Party Pak Liquors in Indianapolis. Mendoza also stole a loaded revolver that the store's owner kept hidden underneath the counter.

At approximately 5:16 a.m., Marion County Sheriff's Sergeant Jeffery Silcox was dispatched to the liquor store in response to a burglary alarm. Deputy Clint Ellison joined Sergeant Silcox near the front of the store, while Deputy Tom Nolan ultimately took up a position in the parking lot where he could observe a security door and provide cover to Sergeant Silcox and Deputy Ellison. Sergeant Silcox yelled, "Marion County Sheriff's Department," and ordered everyone inside the store to "make yourself known," warning that the officers would consider everyone inside to be armed and dangerous. Tr. p. 17.

After the sergeant made those statements, the officers heard a loud bang, later inferring that Mendoza had fired a test shot from the revolver to ensure that it worked before attempting to exit the store. Sergeant Silcox observed Mendoza moving on his hands and knees toward the store's front door. The sergeant noticed that Mendoza had a revolver in his hand, moved for cover, and notified the deputies that Mendoza had a gun.

Mendoza crawled out of a hole in the store's east door and pointed the revolver at Sergeant Silcox and Deputy Nolan. Deputy Ellison ordered Mendoza to drop the gun and, after Mendoza failed to comply with the order, Deputy Ellison fired three rounds at the west door. Deputy Nolan saw a muzzle flash from Mendoza's revolver and returned fire. As the gunshots rang out, Sergeant Silcox felt a sharp, stinging pain in his right leg, believed that he had been shot, and yelled, "I'm hit, I'm hit." Id. at 26.

Mendoza retreated back into the store, after which Deputy Nolan observed Mendoza exiting from the business's front door. Mendoza then fired another shot at Deputy Nolan and Sergeant Silcox. As Mendoza ran across the parking lot, he raised his right hand, which held the revolver. Mendoza ran past two sheriff's cars and continued down the street with Deputy Ellison in pursuit. The deputy ordered Mendoza to stop, at which time Mendoza raised the revolver in his right hand. As Mendoza swung the revolver around toward Deputy Ellison, the deputy fired one shot. Mendoza continued running

869 N.E.2d 551

and Deputy Ellison lost sight of him. Eventually, the officers caught up to Mendoza and took him into custody. All five rounds of ammunition in the revolver in Mendoza's possession had been fired.

On August 11, 2005, the State charged Mendoza with class C felony burglary, class D felony theft, two counts of class D felony resisting law enforcement, class D felony criminal recklessness, class D felony pointing a firearm, and class A misdemeanor carrying a handgun without a license. On October 14, 2005, the parties entered into a plea agreement, pursuant to which Mendoza agreed to plead guilty to class C felony burglary and class D felony criminal recklessness in exchange for the State's agreement to dismiss the remaining charges.

On October 20, 2005, the State moved to vacate the guilty plea hearing, notifying the trial court that one of the victims strongly objected to the plea agreement. The trial court granted the State's motion. On October 28, 2005, the State moved to dismiss the charging information and the trial court granted the motion. On that same day, the State refiled charges against Mendoza, filing the same charging information with an added charge of class A felony attempted murder.

On November 15, 2005, Mendoza filed a motion to dismiss, arguing that the State was without authority to dismiss the original charges and refile them with an additional, more severe count. On December 21, 2005, the trial court denied the motion to dismiss.

Mendoza waived his right to a jury trial, and his bench trial was held on July 24 and 25, 2006. At trial, he renewed the motion to dismiss, which the trial court again denied. The trial court found Mendoza not guilty of one of the charges of resisting law enforcement and found him guilty as charged on the remaining counts except for the count alleging attempted murder, for which the trial court found him guilty of the lesser-included offense of class B felony attempted aggravated battery.

The trial court held a sentencing hearing on August 9, 2006, and sentenced Mendoza as follows: twenty years for attempted aggravated battery, four years for burglary, two years for theft, one and one-half years for resisting law enforcement, two years each for criminal recklessness and pointing a firearm, and one year for carrying a handgun without a license. It ordered the aggravated battery, burglary, theft, criminal recklessness, and pointing a firearm sentences to be served consecutively, with the remaining sentences to be served concurrently, for an aggregate executed sentence of thirty years. Mendoza now appeals.

DISCUSSION AND DECISION
I. Motion to Dismiss

Mendoza first argues that the trial court erroneously denied his motion to dismiss, contending that the State improperly withdrew from the plea agreement and dismissed and refiled the charges against him. In appealing from the denial of his motion to dismiss, Mendoza is appealing from a negative judgment. Lewis v. State, 755 N.E.2d 1116, 1120 (Ind. Ct.App.2001). Where a defendant appeals from a negative judgment, we will reverse the trial court's ruling only if the evidence is without conflict and leads inescapably to the conclusion that the defendant was entitled to dismissal. Id.

A. Withdrawal From Guilty Plea

As we consider the propriety of the State's decision to withdraw from the guilty plea with Mendoza, we observe that our Supreme Court has explained that there are five stages in the plea bargaining process:

869 N.E.2d 552

First, there is the plea agreement itself. . . . The second stage is reached once an agreement is concluded between a prosecuting attorney and a defendant. . . . At the third stage, it is up to the trial court to accept or reject the plea agreement as filed. . . . After the trial court has accepted a plea agreement, stage four is the actual entry of the guilty plea by the defendant. The fifth stage is sentencing.

Badger v. State, 637 N.E.2d 800, 802-03 (Ind.1994) (footnotes omitted). Here, the parties had completed only the first two stages of the plea bargaining process by filing the plea agreement with the trial court when the prosecutor moved to dismiss the charges. At that point in time, the plea agreement was not a binding contract because it had not yet been accepted by the trial court. Consequently, there was "no procedural impediment that would have prevented either party from moving to withdraw the plea agreement since neither had the defendant yet entered a plea nor had the trial court formally accepted the agreement." Id. at 803 (emphasis in original).

Similarly, the defendant's acceptance of a proposed plea bargain does not create a constitutional right to have the agreement specifically enforced:

"A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution."

Coker v. State, 499 N.E.2d 1135, 1138 (Ind. 1986) (quoting Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)). Thus, even an immediate acceptance of a plea bargain by the defendant does not create a right to have the agreement enforced. Id.

The only exception to the State's freedom to withdraw from a plea agreement before acceptance by the trial court occurs if the State has materially benefited from the terms of the agreement or the defendant has relied on the terms of the agreement to his substantial detriment. Badger, 637 N.E.2d at 804. In Bowers v. State, for example, the prosecutor agreed to dismiss charges against the defendant in exchange for information in another investigation. 500 N.E.2d 203, 204 (Ind. 1986). After the defendant provided the information in reliance on the agreement, the prosecutor reneged...

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65 practice notes
  • Estes v. State, No. 39A01–1205–CR–214.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 2013
    ...in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007). trans. denied. Accordingly, we need not address this issue because we elect to exercise our option to review Estes......
  • Barnett v. State, Court of Appeals Case No. 18A-PC-3010
    • United States
    • Indiana Court of Appeals of Indiana
    • February 7, 2020
    ...the initial information and then refile it with additional charges after the omnibus date has passed. See, e.g. , Mendoza v. State , 869 N.E.2d 546 (Ind. Ct. App. 2007), trans. denied (State's dismissal of original charges and refiling of new charges after omnibus date had passed was permis......
  • Chappell v. State, No. 89A01–1106–CR–265.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 2012
    ...court on appeal may exercise authority to review and revise sentence, instead of remanding for resentencing); Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007) (noting that even if trial court abuses its discretion in sentencing, we will not remand for resentencing if the sentence imp......
  • Shelby v. State, No. 87A01–1207–CR–313.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 24, 2013
    ...court on appeal may exercise authority to review and revise sentence, instead of remanding for resentencing); Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007) (noting that even if trial court abuses its discretion in sentencing, we will not remand for resentencing if the sentence imp......
  • Request a trial to view additional results
65 cases
  • Estes v. State, No. 39A01–1205–CR–214.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 2013
    ...in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007). trans. denied. Accordingly, we need not address this issue because we elect to exercise our option to review Estes......
  • Barnett v. State, Court of Appeals Case No. 18A-PC-3010
    • United States
    • Indiana Court of Appeals of Indiana
    • February 7, 2020
    ...the initial information and then refile it with additional charges after the omnibus date has passed. See, e.g. , Mendoza v. State , 869 N.E.2d 546 (Ind. Ct. App. 2007), trans. denied (State's dismissal of original charges and refiling of new charges after omnibus date had passed was permis......
  • Chappell v. State, No. 89A01–1106–CR–265.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 2012
    ...court on appeal may exercise authority to review and revise sentence, instead of remanding for resentencing); Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007) (noting that even if trial court abuses its discretion in sentencing, we will not remand for resentencing if the sentence imp......
  • Shelby v. State, No. 87A01–1207–CR–313.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 24, 2013
    ...court on appeal may exercise authority to review and revise sentence, instead of remanding for resentencing); Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007) (noting that even if trial court abuses its discretion in sentencing, we will not remand for resentencing if the sentence imp......
  • Request a trial to view additional results

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