Primmer v. State

• Decision Date: 20 November 2006
• Docket Number: No. 79A02-0606-CR-460.,79A02-0606-CR-460.
• Citation: 857 N.E.2d 11
• Parties: Jack E. PRIMMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

857 N.E.2d 11

Jack E. PRIMMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A02-0606-CR-460.

Court of Appeals of Indiana.

November 20, 2006.

COPYRIGHT MATERIAL OMITTED

Michael B. Troemel, Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Scott L. Barnhart, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

Jack Primmer appeals his conviction and sentence for child molesting, a Class C felony, and an enhancement for being a repeat sexual offender, following his guilty plea. Primmer raises three issues, which we restate as follows: (1) whether the trial court properly denied Primmer's oral motion to withdraw his guilty plea; (2) whether the trial court properly gave no weight to Primmer's guilty plea as a mitigating circumstance; and (3) whether his sentence of eighteen years with twelve years executed is appropriate. We affirm Primmer's conviction, holding that the trial court properly accepted and maintained Primmer's guilty plea. We also hold the trial court properly gave no weight to Primmer's guilty plea. With regards to Primmer's argument that his sentence is inappropriate, we find the dispositive issue, which we raise sua sponte, to be whether Primmer's sentence is legal. Holding that Primmer's sentence is illegal, we reverse and remand for resentencing.

Facts and Procedural History

On April 22, 2005, the State filed charges against Primmer for child molesting and for being a repeat sexual offender. The State later moved to add an additional charge of child molesting and a charge of obstruction of justice, a Class D felony. On February 6, 2006, the day before Primmer's jury trial was to be held, Primmer entered into a plea agreement under which he was to plead guilty to child molesting and to being a repeat sexual offender in exchange for an agreement that the executed portion of his sentence for these two charges would not exceed nine years. However, at the plea agreement hearing, the following exchange took place:

By the Court: Has anybody forced or threatened to place you or anybody else in fear to get you to plead guilty today?

By Mr. Primmer: Your Honor, uh, I believe another person was placed in fear to get me to sign the Plea Agreement, Your Honor.

By the Court: Who, who put you in fear?

By Mr. Primmer: Uh, no, it was not me that was put in fear. It was another person.

By the Court: I'm asking you, has anybody put you in fear, and you say no—

By Mr. Primmer: In a sense, yes, they have, sir.

Transcript at 97-98. The trial court then stopped the hearing and ordered that the case proceed to trial the following day. The next day, Primmer entered into another plea agreement under which he was to plead guilty to child molesting and to being a repeat sexual offender, this time in exchange for an agreement that the executed portion of his sentence would not exceed twelve years. The trial court held another plea agreement hearing, at which Primmer indicated that no one was put into fear in order to convince him to plead guilty. Primmer stated:

Yesterday was just a confusing day. It just happened all so quick. I'm sorry it had to come down to twelve years, but it was just, it happened too quick and I didn't have a chance to ... talk to my family or anything about it.

Tr. at 102. The trial court accepted Primmer's plea and scheduled a sentencing hearing.

Prior to the sentencing hearing, Primmer sent the trial court a letter indicating he had not in fact committed the crimes to which he had pled guilty. Primmer stated he pled guilty because the State had coerced the child whom Primmer was accused of molesting and the child's mother into agreeing to testify falsely against Primmer, and he did not want them to have to go through the experience of lying on the stand. At the sentencing hearing, Primmer again proclaimed his innocence stating:

"I signed the Plea Agreement because of harassment and threats made against [the mother and child] by the prosecution and the people working for her. That's why I signed the Plea Agreement, Your Honor. I did not commit this crime. I signed the Plea Agreement because my father told me to to [sic] get it over with and to keep [the mother and child] from having—pardon my expression—the hell harassed out of `em like they have been this past year, Your Honor."

Tr. at 121. Primmer later stated, "I mean I don't, I really don't think this is fair, Your Honor, because, like I said, I didn't commit this crime," and that "I know I pled guilty, Your Honor. And I've explained why I've pled guilty." Id. at 123.

The trial court then sentenced Primmer to the statutory maximum of eight years for Class C felony child molesting.¹ The trial court sentenced Primmer to an additional ten years pursuant to the repeat sexual offender statute.² Of the aggregate eighteen-year sentence, the trial court suspended six years and ordered that Primmer serve twelve years. Primmer now appeals.

Discussion and Decision

I. Primmer's Guilty Plea

Primmer argues that the trial court should have treated his statements at the sentencing hearing as a motion to withdraw his guilty plea and should have granted that motion. We disagree.

"After entry of a plea of guilty ... but before imposition of sentence, the court may allow the defendant by motion to withdraw his plea of guilty ... for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant's plea." Ind.Code § 35-35-1-4(b). Any such motion "shall be in writing and verified." Id. (emphasis added); Marshall v. State, 590 N.E.2d 627, 631 (Ind.Ct.App.1992), trans. denied. We review the trial court's ruling on such a motion for abuse of discretion. Ind.Code § 35-35-1-4(b); Bland v. State, 708 N.E.2d 880, 882 (Ind.Ct.App.1999). However, if the defendant shows that manifest injustice has occurred, "the court shall allow the defendant to withdraw his plea of guilty." Ind.Code § 35-35-1-4(b); Bland, 708 N.E.2d at 882.

We note that Primmer never stated, either in his letter or at the sentencing hearing, that he wished to withdraw his guilty plea. Instead, his statements tend to explain his motivation for entering into the plea agreement. Likewise, his argument on appeal seems to address the voluntariness of his plea agreement, and does not support the conclusion that he actually attempted to withdraw his guilty plea. The proper procedure to challenge the voluntariness of a guilty plea is through a petition for post-conviction relief. Jones v. State, 675 N.E.2d 1084, 1090 (Ind.1996) ("[T]he issue of whether defendant's guilty plea was knowing and voluntarily may not be decided by this court on direct appeal, but instead should be pursued by filing a petition for post-conviction relief."); Ind. Code § 35-35-1-4(c).

Here, Primmer never filed a motion, much less a written, verified motion, to withdraw his guilty plea. Therefore, the trial court did not abuse its discretion in not withdrawing Primmer's guilty plea before sentencing. See Marshall, 590 N.E.2d at 631.

II. Sentencing

Primmer makes two arguments in seeking review of his sentence. He first argues that the trial court improperly failed to consider his guilty plea as a mitigating factor in its sentencing order. He then argues that his sentence is inappropriate in light of his character and the nature of the offense.

Because of the timing of events in this case, before addressing Primmer's sentence, we must discuss the recent change in Indiana's statutory sentencing scheme. In 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), an opinion that called into question the constitutionality of Indiana's current sentencing scheme. Our legislature responded to Blakely by amending our sentencing statutes to replace "presumptive" sentences with "advisory" sentences, effective April 25, 2005. Weaver v. State, 845 N.E.2d 1066, 1070 (Ind.Ct.App.2006), trans. denied. Under the new advisory sentencing scheme, "a court may impose any sentence that is authorized by statute and permissible under the Indiana Constitution `regardless of the presence or absence of aggravating circumstances or mitigating circumstances.'" Id. (quoting Ind. Code § 35-38-1-7.1(d)). Thus, while under the previous presumptive sentencing scheme, a sentence must be supported by Blakely-appropriate aggravators and mitigators, under the new advisory sentencing scheme, a trial court may impose any sentence within the proper statutory range regardless of the presence or absence of aggravators or mitigators.

There is a split on this court as to whether the advisory sentencing scheme should be applied retroactively. Compare Settle v. State, 709 N.E.2d 34, 35 (Ind.Ct. App.1999) (sentencing statute in effect at the time of the offense, rather than at the time of conviction or sentencing, controls) with Weaver, 845 N.E.2d at 1070 (concluding that application of advisory sentencing statute violates the prohibition against ex post facto laws if defendant was convicted before effective date of the advisory sentencing statutes but was sentenced after) and Samaniego-Hernandez v. State, 839 N.E.2d 798, 805 (Ind.Ct.App.2005) (concluding that change from presumptive sentences to advisory sentences is procedural rather than substantive and therefore application of advisory sentencing scheme is proper when defendant is sentenced after effective date of amendment even though offense was committed before). Our supreme court has not yet resolved this issue.

In this case, Primmer committed the crime of which he was convicted before the date the new statute took effect, but was sentenced after this date. In such situations, the retroactivity of the new sentencing scheme determines which scheme applies. However, the outcome in this case is the same regardless of which sentencing scheme is applied, and therefore we need not...