Leslie Ann Grider v. State of Indiana , 2012 Ind. App. LEXIS 534 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
FILED
Oct 24 2012, 9:21 am
IN THE CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
LESLIE ANN GRIDER, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1112-CR-1156
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause Nos. 48D03-1003-FC-97, 48D03-1002-FC-73 and 48D03-1002-FD-74
October 24, 2012
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Leslie Grider appeals her sentence following her convictions, in three separate
causes, for two counts of forgery, Class C felonies; four counts of theft, as Class D
felonies; and two counts of check fraud, as Class D felonies; pursuant to a plea
agreement. Grider raises a single issue for our review, namely, whether the trial court
erred when it imposed a sentence that violates the terms of her plea agreement.
We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
In 2010, the State charged Grider, under three separate cause numbers, with two
counts of forgery, Class C felonies; four counts of theft, as Class D felonies; and two
counts of check fraud, as Class D felonies. On June 2, 2010, Grider filed her written plea
agreement with the trial court wherein she pleaded guilty as charged. The plea agreement
provided in relevant part that her sentence would “be open to the Court with all counts to
run concurrently.” Appellant’s App. at 29. At the sentencing hearing, Grider requested
that she be given an opportunity to participate in Drug Court. The trial court agreed and
ordered that she be evaluated for placement in the Drug Court program prior to
sentencing.
On May 18, 2011, Grider began participating in the Drug Court program. But on
September 14, she was terminated from the program for absconding. Accordingly the
trial court held another sentencing hearing on October 31. At that hearing, the trial court
rejected Grider’s plea agreement and ordered a jury trial. But the State then moved to set
aside that order and asked the trial court to reinstate the plea agreement, which the court
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did.1 At sentencing on November 14, the trial court imposed sentence as follows: in
Cause FC-073, eight years for forgery, a Class C felony; and three years each on the
remaining counts; all sentences to run concurrently, for an aggregate term of eight years.
In Cause FD-074, the trial court imposed three years for theft, as a Class D felony, to be
served consecutive to the sentences imposed in Cause FC-073 and Cause FB-77.2 And in
Cause FC-97, the trial court imposed eight years for forgery, a Class C felony, and three
years for theft, as a Class D felony, with those sentences to run concurrently, for an
aggregate term of eight years. In addition, the trial court ordered that the sentence in
Cause FC-97 run consecutive to the sentences in Cause FC-073, FD-074, and FB-77.
Thus, the trial court imposed an aggregate term for all causes of nineteen years. This
appeal ensued.
DISCUSSION AND DECISION
Grider contends that the trial court violated the terms of her plea agreement when
it imposed consecutive sentences. Our courts have long held that plea agreements are in
the nature of contracts entered into between the defendant and the State. Lee v. State,
816 N.E.2d 35, 38 (Ind. 2004). That is:
[a] plea agreement is contractual in nature, binding the defendant, the
[S]tate, and the trial court. The prosecutor and the defendant are the
contracting parties, and the trial court’s role with respect to their agreement
is described by statute: If the court accepts the plea agreement, it shall be
bound by its terms.
1
On appeal, Grider suggests that the record may be unclear whether the trial court reinstated the
plea agreement, but the State asserts, and the record indicates, that the trial court did accept and reinstate
the plea agreement prior to sentencing Grider.
2
Cause FB-77 refers to Grider’s convictions for burglary and theft in January 2003.
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Id. (citing Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994)). As such, we will look
to principles of contract law when construing plea agreements to determine what is
reasonably due to the defendant. See id.
The primary goal of contract interpretation is to give effect to the parties’ intent.
Griffin v. State, 756 N.E.2d 572, 574 (Ind. Ct. App. 2001), trans. denied. When the terms
of a contract are clear and unambiguous, they are conclusive of that intent, and the court
will not construe the contract or look to extrinsic evidence. Id. Rather, we will merely
apply the contractual provisions. Id. Terms of a contract are not ambiguous merely
because a controversy exists between the parties concerning the proper interpretation of
terms. Id. Instead, ambiguity will be found in a contract only if reasonable people would
find the contract subject to more than one construction. Id. We construe any contract
ambiguity against the party who drafted it, which, in the case of plea agreements, is the
State. See, e.g., Time Warner Entm’t Co. v. Whiteman, 802 N.E.2d 886, 894 (Ind. 2004).
Here, Grider pleaded guilty as charged under three separate cause numbers in a
single plea agreement. The provision relevant to sentencing states as follows: “The
sentence shall be open to the Court with all counts to run concurrently.” Appellant’s
App. at 29. Grider interprets that language to mean that the sentences for each of the
counts to which she pleaded guilty would run concurrently. But the State argues, and the
trial court agreed, that the provision means that while the individual counts were to run
concurrently, there was “no barrier to the trial court exercising its discretion and ordering
the sentences in the three causes from running consecutively.” Brief of Appellee at 7.
We must agree with Grider.
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Again, the plea agreement encompasses all counts and all three cause numbers.
The plain meaning of the language “all counts to run concurrently,” absent any qualifying
language, is that all of the counts that are included in the plea agreement are to run
concurrently. Appellant’s App. at 29. Indeed, the plea agreement refers to “the
sentence” and not “the sentences,” which clearly contemplates a single sentence for all
three cause numbers and all counts. Id. We hold that the sentencing provision in the plea
agreement is not ambiguous and that the plain meaning of the language indicates the
parties’ intention that the trial court would impose concurrent sentences on all counts
regardless of the separate cause numbers.
Further, even if the provision were ambiguous, any ambiguity is resolved in favor
of the defendant. Rather than relying on extrinsic evidence, as the State would have us
do, the better rule is to strictly construe the plea agreement against its drafter, the State.
See, e.g., Time Warner, 802 N.E.2d at 894 (“we construe any contract ambiguity against
the party who drafted it.”). As the United States Court of Appeals for the Third Circuit
succinctly and persuasively stated: “In view of the government’s tremendous bargaining
power, we will strictly construe the text against it when it has drafted the agreement.”
United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000), cert. denied, 522 U.S. 898.
Thus, if we were to assume that Grider’s plea agreement is ambiguous, we must construe
the term “all counts to run concurrently” to mean that the sentences under each cause
number cannot run consecutively. See Appellant’s App. at 29. Hence, the trial court
erred when it sentenced Grider to nineteen years. We reverse and remand and instruct the
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trial court to impose concurrent sentences for all counts and all cause numbers, for a total
aggregate term of eight years, executed.
Reversed and remanded with instructions.
KIRSCH, J., and MAY, J., concur.
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