Smith v. State, No. 1-179A14

Docket NºNo. 1-179A14
Citation392 N.E.2d 503, 181 Ind.App. 480
Case DateJuly 31, 1979
CourtCourt of Appeals of Indiana

Page 503

392 N.E.2d 503
181 Ind.App. 480
Tony Lee SMITH, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 1-179A14.
Court of Appeals of Indiana, First District.
July 31, 1979.

Dean E. Richards, Richards, Bennett, Bravard & Bibbins, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant Tony Lee Smith (Smith) brings this appeal following his conviction of two counts of battery, a class D felony.

ISSUE

We quote from Smith's brief filed on appeal:

"The sole issue presented for review in this appeal is whether the trial court erred when it refused to grant the defendant's motion to withdraw his pleas of guilty after the court had ignored a plea agreement and had sentenced him to the maximum penalty."

DISCUSSION AND DECISION

Smith makes the following assertions in his appellate brief:

1. Smith and the State reached an agreement that, in return for a [181 Ind.App. 481] guilty plea on each count, the State would make no recommendation concerning the sentencing and would make no objection if Smith

Page 504

asked for sentencing as class A misdemeanors rather than class D felonies. 1

2. Smith had also agreed to cooperate with the State in other prosecutions.

3. Smith did cooperate by giving sworn statements which resulted in convictions of several persons.

4. At time of sentencing the trial court "ignored" the agreement and sentenced Smith to the maximum penalties.

Smith recognizes that he had the burden of proving that withdrawal of his pleas was necessary to correct a manifest injustice. IC 1971, 35-4.1-1-6(c) (Burns Code Ed., Repl.1979).

Smith cites cases in which our Supreme Court has clearly declared the duty of the State to abide by the terms of plea agreements. This court agrees with and respects the holdings of those cases. In the case at bar, however, the State did exactly what it promised: it made no recommendation concerning sentencing and it made no objection when Smith sought sentencing for class A misdemeanors rather than class D felonies.

When Smith argues that the trial court "ignored" the plea agreement and failed to "go along with" the plea agreement, Smith erroneously interprets the terms and the ramifications of the plea agreement.

At the hearing held May 18, 1978, the judge carefully explained the possible penalties and asked Smith:

"Q....

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2 practice notes
  • Funk v. State, No. 880S334
    • United States
    • Indiana Supreme Court of Indiana
    • November 18, 1981
    ...a felony. Battle v. State, (1981) Ind., 415 N.E.2d 39; Morris v. State, (1980) Ind., 399 N.E.2d 740; Smith v. State, (1979) Ind.App., 392 N.E.2d 503; Gardner v. State, (1979) Ind., 388 N.E.2d The United States Supreme Court has held warrantless arrests need not be accompanied by the presenc......
  • Childers v. State, No. 3-680A161
    • United States
    • Indiana Court of Appeals of Indiana
    • October 9, 1980
    ...subsection." Clearly IC 1971, 35-50-2-7 permits the trial court to exercise discretion in sentencing. Smith v. State (1979), Ind.App., 392 N.E.2d 503. But before a trial court may utilize the discretionary powers under this provision, it must first possess jurisdiction over the underlying f......
2 cases
  • Funk v. State, No. 880S334
    • United States
    • Indiana Supreme Court of Indiana
    • November 18, 1981
    ...a felony. Battle v. State, (1981) Ind., 415 N.E.2d 39; Morris v. State, (1980) Ind., 399 N.E.2d 740; Smith v. State, (1979) Ind.App., 392 N.E.2d 503; Gardner v. State, (1979) Ind., 388 N.E.2d The United States Supreme Court has held warrantless arrests need not be accompanied by the presenc......
  • Childers v. State, No. 3-680A161
    • United States
    • Indiana Court of Appeals of Indiana
    • October 9, 1980
    ...subsection." Clearly IC 1971, 35-50-2-7 permits the trial court to exercise discretion in sentencing. Smith v. State (1979), Ind.App., 392 N.E.2d 503. But before a trial court may utilize the discretionary powers under this provision, it must first possess jurisdiction over the underlying f......

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