Andrew Sparling v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 05 2017, 9:05 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Sparling, June 5, 2017
Appellant-Defendant, Court of Appeals Case No.
34A02-1611-CR-2711
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable George A.
Appellee-Plaintiff Hopkins, Judge
Trial Court Cause No.
34D04-1604-F4-80
Mathias, Judge.
[1] Andrew Sparling (“Sparling”) pleaded guilty in Howard Superior Court to
Level 4 felony burglary under the terms of a plea agreement with the State.
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Sparling now claims the trial court failed to sentence him according to the
agreement.
[2] We reverse and remand.
Facts and Procedural Posture
[3] On the evening of April 21, 2016, Sparling was seen breaking into and robbing
a home in Greentown, Indiana. Pockets flush with loot, Sparling attempted to
flee but was quickly found and arrested by officers of the Greentown Police
Department. On April 26, 2016, the State charged Sparling by information in
Howard Superior Court with Level 4 felony burglary and Class C misdemeanor
possession of paraphernalia.
[4] Sparling is a young man with a history of property and drug crimes. At the time
of this crime, he was severely dependent on methamphetamine. Sparling’s
mother, herself a victim of Sparling’s past thefts, wrote the trial judge and
earnestly pleaded for her son to be placed in a “program in prison called
Therapeutic Community[,]1 . . . a bootcamp for substance abuse recovery.”
1
Therapeutic Community programs are part of “Purposeful Incarceration.” “Purposeful Incarceration” is a
program instituted by the Department of Correction and our trial courts:
In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with Indiana
Court Systems called Purposeful Incarceration (P.I.). The Department works in collaboration
with Judges who can sentence chemically addicted offenders and document that they will
“consider a sentence modification” should the offender successfully complete an IDOC
Therapeutic [C]ommunity. This supports the Department of Correction and the Judiciary to get
addicted offenders the treatment that they need and work collaboratively to support their
successful re-entry into society.
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Appellant’s App. Vol. II, p. 39. On August 5, 2016, Sparling and the State
submitted a plea agreement for the trial court’s acceptance or rejection. In
relevant part the agreement provided,
It is recommended that the Defendant be placed in a Therapeutic
Community Program while incarcerated in the Indiana
Department of Correction[]. Upon successful completion of said
program, with no objection from the State, the Court will
consider modifying the Defendant’s sentence, so as to reduce the
total time of incarceration.
Id. p. 42. The presentence investigation report noted Sparling’s wish to be
placed in C.L.I.F.F. (“Clean Lifestyle Is Freedom Forever”), a Therapeutic
Community program specially targeted to methamphetamine users. Appellant’s
App. Vol. III, p. 8. The report recommended that the plea agreement be
accepted.
[5] At Sparling’s change of plea hearing on August 12, 2016, the court read the
agreement aloud, including the portion quoted above, and asked whether
Sparling understood it to be the entire agreement; Sparling said he did. Tr. p. 4.
At Sparling’s sentencing hearing on September 23, 2016, the court began by
announcing, “I am prepared to accept the recommendation” — that is, the plea
agreement.2 Tr. p. 8. After establishing Sparling’s knowing and intelligent
Purposeful Incarceration, Indiana Department of Correction, http://www.in.gov/idoc/2798.htm (last visited
March 2, 2017); see also Marley v. State, 17 N.E.2d 335, 338 (Ind. Ct. App. 2014) (discussing same), trans.
denied.
2
In the Howard County courts, plea agreements presented to the court are apparently styled
“recommendations.” See Hunter v. State, 60 N.E.3d 284, 287–88 (Ind. Ct. App. 2016) (noting sua sponte “an
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waiver of his trial and appeal rights, the court imposed Sparling’s sentence,
purportedly “[p]ursuant to the terms of the plea agreement.” Tr. p. 14.
[6] The court noted,
[The presentence investigation report] recommended that Mr.
Sparling be allowed to attend the (inaudible) [sic] program. I
don’t have any problems with that. I want to make it clear,
though, I do not consider this therapeutic community. As I
understand it, it’s a separate program.
Tr. p. 15. The prosecutor responded, “Judge, I’m trying to figure out from
[defense counsel], [but] we were kind of of the impression it may be part of the
same program.” Id. The court concluded, “Well, I’m going to put it in the
sentencing order that it’s not, in the court’s opinion, it is not community
therapeutic.” Id.[7] On September 23, 2016, the court entered judgment of conviction against
Sparling. The judgment order provided, “[The] Court recommends that
Defendant be allowed to participate in CLIFF if participation is not deemed to
be Therapeutic Community.” Appellant’s App. Vol. II, p. 45. The
chronological case summary (“CCS”) noted, “As a specific order, any therapy
done while incarcerated will not be considered to be therapeutic Community
[sic] program.” Appellant’s App. Vol. II, p. 6. In the abstract of judgment
unusual and concerning facet of this case” on appeal from Howard Circuit Court involving failure to
recognize “recommendation of plea” as plea agreement); Appellant’s App. Vol. II, p. 41 (plea agreement
styled “recommendation of plea agreement”).
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submitted to the Department of Correction, the field for “Purposeful
Incarceration” read, “No.” Appellant’s App. Vol. III, p. 2.
[8] On October 25, 2016, Sparling moved to correct error in the September 23,
2016, judgment order:
[Under the plea agreement,] the Defendant was to be
recommended to be placed in a Therapeutic Community while
incarcerated in the Indiana Department of Correction[].
The [judgment order] states the “Court recommends that
Defendant be allowed to participate in CLIFF if participation is
not deemed to be Therapeutic Community.”
Wherefore, the Defendant respectfully requests the court modify
the [judgment order] to include the Defendant to be
recommended to participate in a Therapeutic Community during
his incarceration in the Indiana Department of Correction[].
Appellant’s App. Vol. II, p. 48. The court summarily denied the motion on
November 15, 2016, after no response was received from the State.
[9] Sparling timely appealed, claiming the trial court improperly modified his plea
agreement with the State by not recommending Therapeutic Community
placement. We agree.
Discussion and Decision
[10] Plea agreements are contracts between an accused and the State, and we review
them as such. Campbell v. State, 17 N.E.3d 1021, 1023 (Ind. Ct. App. 2014).
“We interpret plea agreements with the primary goal of giving effect to the
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parties’ intent. Terms that are clear and unambiguous are conclusive of this
intent; as such, the reviewing court must apply the contractual provisions” as
they stand. Id. at 1024 (citation omitted).
[11] Sparling and the State agree that the trial court did not have discretion to
modify the plea agreement; it could only choose to reject it entirely or to accept
it and enforce it according to its terms. Ind. Code §§ 35-35-4-3-3(b) (rejection),
(e) (acceptance); Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004); Pannarale v. State,
638 N.E.2d 1247, 1248 (Ind. 1994). “The court is not only bound to the specific
charges and sentencing guidelines; once a plea is accepted, a court is bound by
all the terms in the agreement which are within its legal power to control.” State
v. Holloway, 980 N.E.2d 331, 335 (Ind. Ct. App. 2012) (original emphasis,
quotations omitted) (quoting Reffett v. State, 571 N.E.2d 1227, 1230 (Ind. 1991)).
[12] The State argues that, when the court said Sparling was recommended for
C.L.I.F.F. participation “if participation is not deemed to be Therapeutic
Community,” Appellant’s App. Vol. II, p. 45, what the court meant was,
“[E]ven if CLIFF is not a Therapeutic Community Program, because that is
what the parties agreed to, then Sparling should still be allowed to participate.”
Appellee’s Br. at 7. That may have been what the court meant, but it is not
what the court said. The court said Sparling should participate in C.L.I.F.F. “if
[it] is not”—that is, on the condition that it is not—deemed to be a Therapeutic
Community program. Appellant’s App. Vol. II, p. 45.
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[13] Even if the State is correct about what the court meant, the court still erred. In
the August 5, 2016, plea agreement, the parties agreed to “place[ment] in a
Therapeutic Community,” Appellant’s App. Vol. II, p. 48, not placement in
C.L.I.F.F. Thus, the trial court should not have recommended C.L.I.F.F.
irrespective of whether it was a Therapeutic Community, but a Therapeutic
Community irrespective of whether it was C.L.I.F.F.
[14] The language of the judgment order notwithstanding, the CCS is clear: “As a
specific order, any therapy done while incarcerated will not be considered to be
therapeutic community program.” Appellant’s App. Vol. II, p. 6 (emphasis
added). It is well settled “that the trial court speaks through its CCS . . . .” Beeler
v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied; see also Young v.
State, 765 N.E.2d 673, 678 n.6 (Ind. Ct. App. 2002) (encouraging trial courts to
use CCS notations to explain entries because inter alia conducive to appellate
review). Moreover, though Therapeutic Community participation falls under
Purposeful Incarceration, see supra note 1, Appellant’s App. Vol. III, p. 8, in the
abstract of judgment forwarded to the Department of Correction, the field for
“Purposeful Incarceration” read, “No.” Appellant’s App. Vol. III, p. 2.
[15] The difference to Sparling is extremely important. If he successfully completes
the programming at a Therapeutic Community, he will be eligible for sentence
modification. Appellant’s App. Vol. II, p. 48. This is the opportunity he
bargained for; that bargain must be accepted and enforced, or rejected entirely.
The trial court did not have discretion to accept the agreement and then modify
its terms.
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Conclusion
[16] The trial court improperly modified the plea agreement by refusing to
recommend a Therapeutic Community program for Sparling. We vacate its
September 23, 2016, judgment order and remand with instructions either to
accept the August 5, 2016, plea agreement and enforce its terms, including
recommending Sparling for Therapeutic Community treatment, or to reject it
entirely.
[17] Reversed and remanded.
Kirsch, J., and Altice, J., concur.
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