WTJ v. State
| Decision Date | 27 July 1999 |
| Docket Number | No. 49A05-9808-JV-390.,49A05-9808-JV-390. |
| Citation | 713 N.E.2d 938 |
| Parties | W.T.J., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Elizabeth Gamboa, Indianapolis, Indiana, Attorney for Appellees.
Jeffrey A. Modisett, Attorney General of Indiana, Sarah E. Scherrer, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
W.T.J. ("J.") appeals the juvenile court's denial of his motions 1) to set aside his plea agreement, and 2) for review of his sentence by the presiding judge.
We affirm in part, reverse in part and remand for re-sentencing.
In April 1997, J. was found to have committed an act that would be theft as a class D felony if committed by an adult. In late May and early June 1997, J. burglarized several residences. In July 1997, J. was charged with the May and June burglaries, including that of Steven Fortner's residence. In September 1997, the juvenile court found that J. had committed acts which would be four class B felony burglaries if committed by an adult. At that time, the count involving the burglary of Fortner's residence was dismissed because Fortner failed to appear in court. Subsequently, on June 1, 1998, the State re-filed the previously dismissed petition alleging J. had committed an act that would be a class B felony burglary if committed by an adult for the burglary of Fortner's residence. Three weeks later, J. entered into a plea agreement with the State wherein he admitted to the allegation, and the State agreed to make no recommendation as to the disposition of the matter.
Thereafter, the trial court issued the following order:
The Court Orders the following to the Department of Correction:
The Respondent be committed to Department of Correction for a determin[ate] sentence of 24 Months.
(R. 29).
On July 1, 1998, J. filed motions to set aside his plea agreement and for review of his sentence by the presiding judge. In the motion to set aside his plea agreement, he argued that he did not knowingly enter into the agreement because he was not advised that a determinate sentence was one of the possible dispositional alternatives. In the motion for review of his sentence by the presiding judge, he argued that he was not eligible for a determinate sentence because the requirements of I.C. § 31-37-19-10 had not been met. The trial court denied both motions.
At the outset, we note that where a juvenile defendant seeks to challenge on appeal the validity of a guilty plea, he must do so through the vehicle of an Ind. Trial Rule 60(B) Motion for Relief from Judgment. M.Y. v. State, 681 N.E.2d 1178, 1179 (Ind.Ct. App.1997). We consider J.'s motion as one for relief from judgment under the Rule.
J. argues that the juvenile court erred in denying his motion to set aside his plea agreement. According to J., he did not knowingly enter into the plea agreement because he was not advised that a determinate sentence was one of the possible dispositional alternatives.
The juvenile court is required to inform a child and his parents of the "nature of the allegation against the child," and the "dispositional alternatives available to the juvenile court if the child is adjudicated a delinquent child." Ind.Code § 31-37-12-5; M.R. v. State, 605 N.E.2d 204, 206 (Ind.Ct. App.1992). Here, our review of the record reveals that during the fact-finding hearing, the court read the allegations of the delinquency petition to J. When asked if he understood the charge against him, J. responded that he did. The court continued as follows: "And in this case there is no recommendation, that means at disposition I could adopt any one of the dispositional alternatives, including committing you to the Department of Corrections, you understand that?" (R. 45). J. responded that he did.
This colloquy demonstrated that J. knowingly entered in to the plea agreement. See M.R., 605 N.E.2d at 205 (). The juvenile court did not err in denying J.'s motion to set aside his guilty plea.
J. further argues that the trial court erred in denying his motion for review of his sentence by the presiding judge. Specifically, he contends that he was not eligible for a determinate sentence because the requirements of I.C. § 31-37-19-10 were not satisfied.
Ind.Code § 31-37-19-10 provides in pertinent part as follows:
J. argues that the statutory requirements were not satisfied in this case because he does not have two unrelated prior adjudications of delinquency for acts that would be felonies if committed by an adult. We agree.
Although the statute does not define "unrelated prior adjudications of delinquency," this language is similar to language in Ind.Code § 35-50-2-8, the habitual offender statute. Specifically, I.C. § 35-50-2-8 provides in part that the (Emphasis added). We have previously relied on statutes with similar language when we interpret statutory language which has not been defined. See Scott-Gordon v. State, 579 N.E.2d 602 (Ind.1991). Here, because the language in the two statutes is similar, we look to interpretations of the habitual offender statute for guidance.
To prove a defendant's habitual offender status pursuant to I.C. § 35-50-2-8, the State must prove that 1) the commission, conviction and sentencing on the defendant's first offense preceded the commission of the second offense, and 2) the commission of the principal offense followed the commission, conviction and sentencing on his second offense. Spann v. State, 681 N.E.2d 223, 225 (Ind.Ct.App.1997). "Punishment will be enhanced [pursuant to the habitual offender statute] only when a person who has been given two distinct opportunities to reform persists in his criminality and commits a third separate and unrelated felony act thereby proving himself incorrigible and a most serious threat to our society." Graham v. State, 435 N.E.2d 560, 561 (Ind.1982).
In the Graham case, Graham was convicted of uttering a forged instrument on September 28, 1976. On September 4, 1979, Graham was convicted of another count of forgery for an act that he committed on February 9, 1979. He was sentenced thereon on September 11, 1979. On September 14, 1979, Graham was charged with three additional counts of forgery for forging checks on February, 5, 1979, February 9, 1979, and February 28, 1979, and with being an habitual offender. He was convicted of the three counts and adjudicated to be an habitual offender.
On appeal, he argued that the requirements of I.C. § 35-50-2-8 were not satisfied because he did not have the requisite felony convictions to sustain his habitual offender status. Specifically, he argued that the commission of the third requisite felony was not subsequent to the conviction and sentencing for the second felony offense. Our supreme court agreed with Graham and reversed his adjudication as an habitual offender.
The facts of Graham are analogous to those before us. Here, in April 1997, J. was found to have committed an act which would be auto theft as a class D felony if committed by an adult which we will call his first offense. In late May and early June 1997, a period of approximately two weeks, he burglarized several residences including that of Fortner. (see facts). He was charged with the offenses in July 1997. In September 1997, he was found to have committed acts which would be four class B felony burglaries if committed by an adult which we will call his second offense. At that time, the count involving the burglary of Fortner's residence was dismissed because Fortner failed to appear in court. In June 1998, J. admitted that he had committed the Fortner burglary in May 1997, an act that would be a class B felony if committed by an adult. He is correct that he did not have the requisite adjudications of delinquency to sustain his determinate sentence because, as in Graham, the commission of the re-filed third act of burglary was not unrelated and subsequent to his adjudication of delinquency and final disposition for the second offense.
The State contends that I.C. XX-XX-XX-XX and the habitual offender statute are "separate and distinct" and the sequential requirements of the habitual offender statute do not apply to I.C. § 31-37-19-10....
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