Munger v. State

• Decision Date: 03 June 1981
• Docket Number: No. 3-1280A387,3-1280A387
• Citation: 420 N.E.2d 1380
• Parties: Martin D. MUNGER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1380

420 N.E.2d 1380

Martin D. MUNGER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-1280A387.

Court of Appeals of Indiana, Third District.

June 3, 1981.

Harriette Bailey Conn, Public Defender (Robert H. Hendren, Sp. Asst. Public Defender, Indianapolis, for appellant (defendant below).

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

STATON, Judge.

Pursuant to a plea agreement, Martin D. Munger pleaded guilty to the charge of forgery. ¹ The trial court accepted the plea and sentenced Munger to the Indiana Department of Correction for a period of eight years. After sentencing, Munger filed a petition for post-conviction relief. Munger appeals the denial of that petition.

On appeal, Munger contends the PCR court erred in denying relief on the following issues raised in his petition:

(1) Did the trial court fail to determine whether Munger was eligible for drug abuse treatment in lieu of imprisonment?

(2) Did the trial court fail to state the aggravating circumstances it purportedly found to justify the imposition of a sentence greater than the presumptive sentence?

(3) Was Munger's guilty plea rendered involuntary by the prosecutor's unwarranted threat to file an habitual offender charge?

We affirm.

I. Drug Abuse

Munger contends the trial court should have informed him that he may have been eligible for drug abuse treatment under IC 1976, 16-13-6.1-18 (Burns Code Ed., 1980 Supp.), in lieu of serving an eight-year sentence. The statute on which Munger relies provides in pertinent part:

"(a) If a court has reason to believe that an individual convicted of an offense is a drug abuser or alcoholic or the individual states that he is a drug abuser or alcoholic and the court finds that he is eligible to make the request provided for under section 16(16-13-6.1-16) of this chapter, the court may advise him that he may be placed on probation if he requests to undergo treatment and is accepted for treatment by the department. In offering an individual an opportunity to request treatment, the court shall advise him of what may be required of him under IC 35-7-2-1 as conditions of probation. The court may certify an individual for treatment while on probation regardless of the failure of the individual to request treatment."

Munger directs this Court to information contained in the presentence report which he contends should have provided the trial court with "reason to believe" that Munger was a drug abuser who was eligible for treatment in lieu of imprisonment. Because the presentence report put the trial court on notice of Munger's involvement with drugs, Munger contends the trial court erred in failing to make "reasonable inquiry" into his eligibility for drug abuse treatment under IC 16-13-6.1-18. To support his contention, Munger cites Glenn v. State (1975), 163 Ind.App. 119, 322 N.E.2d 106, which construed IC 16-13-6.1-18's statutory predecessor, IC 1971, 16-13-7.5-18 (repealed 1974), as requiring the trial court to make reasonable inquiry into the defendant's eligibility for drug abuse treatment when the court has reason to believe the convicted defendant is a drug abuser or the defendant states he or she is a drug abuser. ²

Munger's reliance upon IC 16-13-6.1-18 to support his contention that he should have been considered for drug abuse treatment in lieu of serving an eight-year sentence must fail. The trial court imposed an eight-year sentence upon Munger in accordance with a plea agreement submitted to the court by Munger and the prosecutor. The plea agreement provided:

"Comes now (the prosecutor), pursuant to I.C. 35-5-6-2, and respectfully notifies the Court that the State of Indiana will make the following recommendation on a plea of guilty by the above named defendant:

"That the defendant receive eight (8) years to serve on Cause CCR-78-98, and Counts I and II of Cause No. CCR-78-112 shall be dismissed at sentencing in CCR-78-98."

Finding the terms of the plea agreement acceptable, the trial court implemented its provisions, including its eight-year sentence recommendation. The trial court, once it accepted the sentence recommendation contained in the plea agreement, was precluded from imposing any sentence other than that required by the plea agreement. State ex rel. Goldsmith v. Marion County Superior Court (1981), Ind., 419 N.E.2d 109 at 114; Moyer v. State (1978), Ind.App., 379 N.E.2d 1036, 1038. In Goldsmith, the trial court granted the defendant's petitions for shock probation after plea agreements which contained specific terms of imprisonment had been accepted by the court. The Indiana Supreme Court mandated that the trial court's orders for shock probation be vacated. The Court observed:

"(The trial court) may not, however, alter the plea bargain for an executed sentence upon motion for consideration for shock probation by the defendant or upon (the trial court's) own motion ....

"(A) plea bargain calling for an executed sentence forecloses any probation by the court, including shock probation." (emphasis added.)

Goldsmith, supra, at 114. The statute on which Munger relies, IC 16-13-6.1-18, requires a defendant-drug abuser to "be placed on probation" as a concomitant to undergoing drug abuse treatment. If the trial court in the present case had invoked the drug abuse treatment provision of IC 16-13-6.1-18 after accepting the plea agreement submitted by Munger and the prosecutor, the court would have had to place Munger on probation. However, under the holding of Goldsmith, the trial court's acceptance of the eight-year sentence recommendation precluded the court from placing Munger on any probation. The Supreme Court's all-encompassing prohibition against probation after acceptance of the sentencing terms of a plea agreement presumably includes the probation that must be ordered for the drug abuse treatment provision of IC 16-13-6.1-18. The Supreme Court stated clearly its mandate there can be no alteration of a negotiated sentence once it has been accepted by the trial court. The Court explained its rationale for precluding probation after the trial court accepts a specific sentence recommendation as follows:

"The concept of plea bargaining contemplates an explicit agreement between the State and defendant which is binding upon both parties when accepted by the trial court. To allow the trial court to either increase or suspend the executed sentence, would deny the parties the essential purpose of their agreement. It is to the interest of both the defendant and the public to facilitate expeditious disposition of criminal cases. Strict adherence to the agreement is essential to this purpose.

Goldsmith, supra, at 114. Thus, any inquiry into Munger's eligibility for drug abuse treatment after the trial court accepted the plea agreement would have been a useless act. The trial court's acceptance of the negotiated sentence recommendation precluded the court from subsequently placing Munger on probation; thus, the drug abuse treatment provision of IC 16-13-6.1-18 was rendered inapplicable. ³

This Court's holding should not be construed as an emasculation of the drug abuse statutes and their rehabilitative goals when a defendant confesses guilt pursuant to a plea agreement. On the contrary, the drug abuse statutes remain a relevant concern for the trial court when a defendant and the prosecutor submit a plea agreement for approval. The Supreme Court's holding in Goldsmith does not preclude a trial court, before deciding whether to reject or accept a tendered plea agreement, from invoking the drug abuse treatment provision of IC 1976, 16-13-6.1-17 (Burns Code Ed., 1980 Supp.), if the court has "reason to believe" the defendant is a drug abuser who is eligible for treatment. ⁴ IC 16-13-6.1-17 empowers the trial court to defer prosecution for the substantive offense while the defendant receives drug abuse treatment. When a plea agreement is submitted to the trial court for approval, acceptance of the agreement and its sentencing terms may be deferred until the court, should it order drug abuse treatment and the defendant consents to receiving treatment, examines the results of the treatment. However, this procedure must be invoked before the trial court accepts the tendered plea agreement. Thus, drug abuse treatment remains as a sentencing alternative even when a plea agreement has been submitted to the trial court for approval.

In the present case, Munger does not allege that the trial court failed to comply with IC 16-13-6.1-17. Munger neither cites nor relies upon that statute in arguing this issue on appeal. The sole basis for Munger's argument on appeal is that the trial court failed to comply with IC 16-13-6.1-18. As stated before, IC 16-13-6.1-18 involves ordering drug abuse treatment after conviction. Munger was convicted of forgery when the trial court accepted his guilty plea and the attendant plea agreement. Thus, any reliance upon IC 16-13-6.1-18 in arguing that the trial court erred in failing to inform Munger of the availability of drug abuse treatment after his conviction is misplaced. The Supreme Court's recent directives in Goldsmith clearly preclude IC 16-13-6.1-18 from becoming operative after the trial court accepts the sentence recommendation of a plea agreement. ⁵

II. Sentencing

Munger contends the trial court failed to follow the procedural requirements of IC 1976, 35-50-1A-3 (Burns Code Ed., 1979 Repl.), (Ind.Code Ann. 35-4.1-4-3 (West 1978)), which provides:

"Before sentencing a person for a felony the court must conduct a hearing to consider the facts and circumstances relevant to sentencing. The person is entitled to subpoena and call witnesses and otherwise to present information in his own behalf. The court shall make a record of the hearing, including:

"(1) A transcript of the hearing;

"(2) A copy of the presentence report; and

"(3)...