Spalding v. State

• Decision Date: 15 July 1975
• Docket Number: No. 2--674A138,2--674A138
• Citation: 165 Ind.App. 64,330 N.E.2d 774
• Parties: Eddie L. SPALDING, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 774

330 N.E.2d 774

165 Ind.App. 64

Eddie L. SPALDING, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--674A138.

Court of Appeals of Indiana, Third District.

July 15, 1975.

Rehearing Denied Sept. 18, 1975.

Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr. Deputy Public Defender, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., G. Philip Duckwall, Deputy Atty. Gen., for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Eddie L. Spalding (Spalding) appeals from the denial of his petition for post-conviction relief. Such petition sought the vacation of a conviction in the Criminal Court of Marion County, Division Four, for a violation of the 1935 Uniform Firearms Act. ¹

The relevant facts disclosed by the record before this court which are most favorable to appellee State of Indiana reveal that Spalding pleaded guilty to the violation of the 1935 Uniform Firearms Act mentioned hereinabove. He was sentenced thereon to a determinate term of eight years.

Prior to the time Spalding entered such plea, he had pleaded guilty to a charge of 'Commission of Robbery While Armed.' ² Such charge was Count Two of the charging affidavit filed in another cause in another division of the Criminal Court of Marion County. This plea was entered pursuant to an oral plea bargain by and between Spalding and the deputy prosecutor in charge of matters pending in such court.

The terms of such plea bargain were that Spalding would enter a plea of guilty to the armed robbery charge, and the State would dismiss all other charges then pending against him, including the charge now at issue, provided that Spalding receive a nine year determine sentence as a result of such plea.

After Spalding had entered his plea of guilty, the trial judge sentenced him to an indeterminate term of one to ten years under the provisions of the Minor's Sentencing Act. ³ Thereafter, the prosecutor's office continued to pursue the other charges pending against appellant, which resulted in his guilty plea in the cause which is the basis of the instant appeal.

The question for decision is whether the trial court erred in holding that because Spalding did not receive the nine year determinate sentence required as a term of the plea bargain by the prosecution, the plea bargain between Spalding and the prosecutor's office 'was never consummated.' Spalding asserts that in requiring him to receive a certain minimum sentence, the prosecutor exceeded his powers, and usurped the sentencing function of the trial court.

It has been held that a prosecuting attorney is not only the State's legal representative, but is also an officer of the court. East v. State (1929), 89 Ind.App. 701, 168 N.E. 28. Further, a prosecuting attorney is a judicial officer in the sense that he is vested with a broad discretion as to the prosecution of criminal actions. Taylor, Jr. v. State (1968), 251 Ind. 236, 236 N.E.2d 825; Tinder, Pros. Atty. et al. v. Music Op. Inc. (1957), 237 Inc. 33, 142 N.E.2d 610.

However, the powers of a prosecuting attorney in reference to criminal actions are not without limits. Because the powers and duties of prosecuting attorneys are prescribed by statute, a prosecuting attorney has only those express powers enumerated within the four corners of such statutes. State v. Market (1973), Ind.App., 302 N.E.2d 528, 534. Thus it has been held that a prosecuting attorney is without the power to remit any portion of a criminal sentence, The State v. Brewer (1843), 7 Blackf. 45; and that a trial court can, in no way, be bound by the recommendations of a prosecuting attorney with regard to the sentence to be imposed in a criminal cause. Gray v. State (1971), 256 Ind. 447, 269 N.E.2d 535; Mahoney v. State (1925), 197 Ind. 335, 149 N.E. 444. Rather, the power and duty to pronounce sentence upon a convicted or admitted criminal within the statutory limits rests solely in the trial court; it is a judicial act. Tahash, Supt., etc. v. Clements (1955), 234 Ind. 197, 199, 125 N.E.2d 439.

Our Supreme Court indicated in Mahoney v. State, supra, that a defendant can not be allowed to circumvent the sentencing discretion of a trial court by conditioning his guilty plea upon the imposition of a certain maximum sentence. Therein, the court further held that the subjective expectations of a defendant or his counsel as to sentencing also cannot be allowed to deprive the trial court of its discretion in sentencing:

'(The) (l)eniency of a trial court toward an accused should not, by rule of law, go to the extent that an accused or an accused's counsel may speculate upon what the action of the trial court will be upon a plea of guilty, and, in the event such plea results in a judgment which is more severe than that hoped for by the defendant, take advantage of the same by a request to set aside the judgment and withdraw the plea of guilty, as in the case at bar. If such should become the hard and fast rule of law, the result inevitably would follow that the accused, with his counsel, may use the court as a pawn and gain the end sought when the judgment in any manner exceeded the lenient one hoped for, whether suggested by the counsel of the accused, or from the determined desire of the accused.' 197 Ind. at 343, 149 N.E. at 447.)

We believe it to be equally improper to allow the prosecution in a criminal cause to circumvent the sentencing discretion of a trial judge by requiring a defendant to receive a certain minimum sentence as a condition of a plea bargain. In the case at bar, although Spalding entered a plea of guilty to a robbery charge, the deputy prosecutor refused to dismiss the other charges solely because the sentence imposed by the trial judge following such plea was considered inadequate. Thereafter, Spalding was prosecuted on other pending charges (including the charge which is the basis of this appeal) until the sentence deemed appropriate by the prosecution for the several charges was amassed; only then was a remaining charge dismissed.

As evidenced by the Mahoney case cited hereinabove, our courts have jealously guarded the sentencing discretion of trial judges from any infringement by defendants. It must also be protected from prosecutorial frustration.

In a situation such as in the instant case, the trial court is deprived of its discretion in any single cause because the prosecution has determined a sentence it considers appropriate for the aggregate. If the sentence deemed appropriate by the prosecution is obtained upon the first charge, the remainder are then dismissed. However, if such sentence is not obtained on the first or subsequent charges, prosecution will be continued until the minimum figure is met.

While it is clearly proper for the prosecution to make sentencing recommendations, it is just as clearly improper for it to invade the discretion of the trial court by effectively determining the minimum sentence a given defendant must serve on a group of unrelated charges pending against him. A prosecutor should logically be accorded a wide latitude in determining the charge or charges to be pursued against an individual as a result of one series of related events. However, the same logic does not apply to unrelated criminal charges which are only fortuitously pending at the same time.

When the plea bargain in the case at bar was made, there was in effect a statute reflecting a similar view of the duties of a prosecuting attorney:

'Motion for dismissal.--No criminal cause shall be dismissed except by order of the court on motion of the prosecuting attorney; and such motion must be in writing, and the reasons therefor must be stated in such motion and read in open court before such order is made; and the mere numer of prosecutions against the same person shall not be a reason for dismissing any of such causes.'

(Emphasis supplied.)

IC 1971, 35--1--16--5, Ind.Ann.Stat. § 9--910 (Burns 1956). ⁴

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