State of Indiana v. John J. Arnold

Feb 27 2015, 6:45 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Bart M. Betteau
Attorney General of Indiana Betteau Law Office, LLC
New Albany, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, February 27, 2015
Appellant-Respondent, Court of Appeals Case No.
22A05-1408-CR-387
v. Appeal from the Floyd Circuit Court
The Honorable J. Terrence Cody,
Judge
John J. Arnold, Case No. 22C01-1212-FA-2843
Appellee-Defendant
Crone, Judge.
Case Summary
[1] The State of Indiana appeals the trial court’s grant of John J. Arnold’s motion
to set aside his habitual offender enhancement. The State contends that the trial
court erred in refusing to vacate Arnold’s entire plea agreement when it vacated
his habitual offender enhancement. We conclude that Arnold’s motion to set
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aside habitual offender enhancement should be treated as a petition for
postconviction relief and that the trial court’s judgment should be reviewed as
an award of postconviction relief. We also conclude that the vacatur of
Arnold’s habitual offender enhancement would frustrate the basic purpose of
the plea agreement, and therefore the trial court erred in not setting the entire
agreement aside. Accordingly, we affirm in part, reverse in part, and remand.
Facts and Procedural History
[2] In December 2012, the State charged Arnold with class A felony attempted
murder, three counts of class C felony criminal recklessness causing serious
bodily injury by means of a deadly weapon, and being a habitual offender. The
State amended the information to add two counts of class D felony failure to
stop after an accident resulting in serious bodily injury or death. Apparently,
the charges were based on an incident in which Arnold was driving his truck,
hit or ran over three individuals, and fled the scene. Tr. at 44.
[3] In August 2013, the parties entered into a plea agreement wherein Arnold
agreed to plead guilty to three counts of class C felony criminal recklessness
(Counts 2, 3, and 4) and to being a habitual offender (Count 8). Arnold agreed
to concurrent sentences of eight years each for the class C felonies and to a
sentence enhancement of twelve years for being a habitual offender. Pursuant
to the plea agreement, the habitual offender sentence enhancement was
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attached to all three criminal recklessness convictions.1 Thus, both the State
and Arnold agreed to an aggregate sentence of twenty years. The State agreed
to dismiss all remaining charges.
[4] At the guilty plea hearing in September 2013, Arnold acknowledged that he had
three prior felony convictions, two of which were prior unrelated felony
convictions as required under Indiana Code Section 35-50-2-8 to support his
habitual offender status. One of the felonies was a 2007 class C felony
conviction for intimidation in Clark County. The trial court accepted the plea
agreement and entered a judgment sentencing Arnold according to its terms.
[5] In the meantime, however, Arnold had filed a petition for postconviction relief
in Clark County for his 2007 intimidation conviction. His petition was granted
and that conviction was vacated. In December 2013, Arnold filed in this case a
motion to set aside habitual offender enhancement because his 2007 Clark
County conviction had been vacated. The trial court held a hearing on the
motion.
[6] The trial court granted Arnold’s motion to set aside the habitual offender
enhancement and set another hearing for the parties to present further argument
1
Arnold argues that the habitual offender enhancement was attached only to counts 2 and 4. We disagree.
The sentencing section of the plea agreement clearly states, “Concurrent 2, 3, 4 enhanced by the Habitual
Offender Count.” Appellant’s App. at 14. Also, the trial court’s sentencing order states, “The sentences in
Counts 2, 3, and 4 are enhanced pursuant to Defendant’s Habitual Offender Status under Count 8 by a
period of 12 years.” Id. at 18. Attaching the habitual offender enhancement to all three convictions was
improper. As we examine further in our discussion and decision section, a habitual offender enhancement
must be attached to the sentence of a single conviction.
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on whether the rest of the plea agreement should be set aside. Following the
hearing, the trial court reaffirmed its order setting aside only the habitual
offender enhancement. The State appeals.
Discussion and Decision
Section 1 – Arnold’s motion to set aside habitual offender
enhancement will be treated as a request for postconviction
relief.
[7] As an initial matter, the parties dispute the procedural posture of this case.
Arnold argues that his motion to set aside habitual offender enhancement was
not a request for postconviction relief and that the trial court would only have
the authority to set aside his plea agreement in postconviction proceedings.
The State argues that Arnold’s motion, whatever its title, must be treated as a
petition for postconviction relief. We agree with the State.
[8] “Generally, a trial judge has no authority over a defendant after he or she
pronounces sentence. Any continuing jurisdiction after final judgment has been
pronounced must either derive from the judgment itself or be granted to the
court by statute or rule.” State v. Fulkrod, 735 N.E.2d 851, 852 (Ind. Ct. App.
2000), aff’d, 753 N.E.2d 630 (Ind. 2001). Arnold fails to identify any statute or
rule establishing a procedure for a motion to set aside a habitual offender
enhancement based on the vacatur of an underlying conviction. Although
Indiana Code Section 35-38-1-15 permits a convicted person to challenge an
erroneous sentence, this statute applies to instances where the sentence “is
erroneous on its face.” Koontz v. State, 975 N.E.2d 846, 848 (Ind. Ct. App.
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2012), aff’d on reh’g, 983 N.E.2d 194 (2013). Our supreme court has emphasized
that “a motion to correct sentence may only be used to correct sentencing errors
that are clear from the face of the judgment imposing the sentence in light of the
statutory authority.” Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004).
“Claims that require consideration of the proceedings before, during, or after
trial may not be presented by way of a motion to correct sentence.” Id.Arnold’s motion did not present a claim of error that was clear on the face of
the trial court’s judgment following his guilty plea.
[9] In fact, another panel of this Court specifically considered the appropriate
method by which to challenge a habitual offender enhancement when an
underlying conviction has been set aside and concluded that a postconviction
proceeding is the proper route. Poore v. State, 613 N.E.2d 478, 480 (Ind. Ct.
App. 1993). In so holding, the Poore court clarified that Indiana Code Section
35-38-1-15 should be limited to those instances where the sentence is facially
defective; that is, when a sentence “violates express statutory authority at the
time the sentence is pronounced.” Id. Furthermore, we observe that claims of
error regarding guilty pleas are governed by the postconviction rules. Indiana
Code Section 35-35-1-4(c) provides that a motion to vacate judgment and
withdraw guilty plea to correct manifest injustice “shall be treated by the court
as a petition for postconviction relief under the Indiana Rules of procedure for
Postconviction Remedies.”
[10] Arnold contends that he followed the same procedure used by the defendants in
Coble v. State, 500 N.E.2d 1221 (Ind. 1986), and Olinger v. State, 494 N.E.2d 310Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015 Page 5 of 14
(Ind. 1986). In both cases, a jury found the defendant guilty of a felony and of
being a habitual offender. In both cases, one of the underlying convictions for
the habitual offender finding was vacated and each defendant filed a motion to
have the habitual offender enhancement set aside. Each defendant successfully
obtained the vacatur of his habitual offender enhancement while the felony to
which it attached remained unaffected. Olinger, 494 N.E.2d at 311; Coble, 500
N.E.2d at 1222-23. The issues raised on appeal in those cases are completely
unrelated to the one here, but Arnold argues that because he, like Olinger and
Coble, filed a motion to set aside habitual offender enhancement rather than a
petition for postconviction relief, he is entitled to seek vacatur only of his
habitual offender enhancement and leave the remainder of his plea agreement
intact.
[11] In light of Robinson and Poore, we conclude that Olinger and Coble are outdated
with respect to procedure and that Arnold’s reliance on them for the
appropriate procedure is misplaced. We conclude that Arnold’s attempt to
have his habitual offender enhancement set aside was improperly brought by a
motion and should have been brought by a petition for postconviction relief.
Furthermore, Arnold’s argument that he is entitled to seek vacatur only of his
habitual offender enhancement because he filed a motion rather than seeking
postconviction relief is unavailing because it is based entirely on Olinger and
Coble.
[12] We acknowledge that Sections 2 and 3 of Indiana Postconviction Rule 1
contain requirements for filing and content that Arnold did not follow.
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However, Arnold’s motion was heard and ruled on, and therefore in the
interests of judicial economy we will treat Arnold’s motion to set aside habitual
offender enhancement as a request for postconviction relief and review the trial
court’s judgment accordingly.
Section 2 – The trial court erred in failing to vacate the plea
agreement when it vacated the habitual offender
enhancement.
[13] The State contends that the trial court erred in failing to set aside the plea
agreement and resulting convictions when it set aside Arnold’s habitual
offender enhancement. Generally, we review the award of postconviction relief
under a clearly erroneous standard pursuant to Indiana Trial Rule 52(A)(3).
State v. Hollin, 970 N.E.2d 147, 150 (Ind. 2012). In this case, however, the facts
are undisputed and the question raised by the State is purely a question of law.
See State v. Metcalf, 852 N.E.2d 585, 588 (Ind. Ct. App. 2006) (“‘[A]n issue
presented on appeal is a pure question of law when the question does not
require reference to extrinsic evidence, inferences drawn from that evidence, or
the consideration of credibility questions.’”) (quoting Bader v. Johnson, 732
N.E.2d 1212, 1216 (Ind. 2000), trans. denied). We review questions of law de
novo, giving no deference to the trial court’s legal conclusions. Id.[14] We note that the State does not challenge the trial court’s decision to set aside
Arnold’s habitual offender enhancement. Although the factual basis supporting
the habitual offender enhancement included three prior felony convictions
where only two were required, the State concedes that the two remaining prior
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felony convictions cannot support a habitual offender enhancement because
they are not “unrelated” for purposes of Indiana Code Section 35-50-2-8.
[15] In addition, the State recognizes this Court’s decision in State v. Jones, 819
N.E.2d 877 (Ind. Ct. App. 2004), trans. denied (2006). There, Jones and the
State entered into a plea agreement wherein Jones pled guilty to class B felony
attempted robbery, class B felony robbery, class C felony robbery, and to being
a habitual offender. Thereafter, one of the convictions underlying Jones’s
habitual offender adjudication was vacated. He filed an amended petition for
postconviction relief, contending that his habitual offender status must be
vacated. The postconviction court granted Jones’s petition and set aside
Jones’s entire plea agreement, the resulting convictions, and the habitual
offender enhancement. The State appealed, arguing that Jones was not entitled
to the requested relief because (1) “Jones admitted to his status as a habitual
offender rather than being convicted, [and therefore] he must prove that he is
not a habitual offender by proving that he did not commit the predicate
offenses;” and “(2) the vacation of the prior felony conviction does not negate
the fact that at the time Jones admitted his status, the underlying convictions
existed.” Id. at 878-79. The Jones court rejected both these arguments. The
Jones court noted that “[t]he habitual offender statute states plainly that ‘a
conviction does not count for purposes of this subsection if ... it has been set
aside.’” Id. at 881 (quoting Ind. Code § 35-50-2-8(b)(1)). The Jones court
concluded that Indiana Code Section 35-50-2-8 applied to a habitual offender
adjudication resulting from a plea agreement. Id.Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015 Page 8 of 14
[16] The State’s sole argument on appeal is that the trial court erred in failing to
vacate the entire plea agreement. Another panel of this Court addressed this
issue in Boykin v. State, 702 N.E.2d 1105 (Ind. Ct. App. 1998). Pursuant to a
plea agreement, Boykin pled guilty to auto theft, resisting law enforcement, and
being a habitual offender (“Plea I”). Boykin’s habitual offender enhancement
was attached to his conviction for auto theft. In a separate plea agreement,
Boykin pled guilty to robbery (“Plea II”) and agreed to a fifteen-year sentence to
be served concurrent to the sentence imposed pursuant to Plea I. Later, one of
the convictions underlying Boykin’s habitual offender enhancement was set
aside, and he filed a successive petition for postconviction relief. The
postconviction court vacated the habitual offender enhancement but refused to
vacate Boykin’s plea agreement.
[17] Boykin appealed, arguing that the postconviction court erred by not vacating
his entire plea agreement. The Boykin court concluded that vacatur of his
habitual offender enhancement mandated that the conviction to which it
attached also be vacated. The Boykin court reasoned that by vacating the
habitual offender enhancement, Boykin’s sentence for auto theft was altered
because the “habitual offender statute does not set forth a separate offense;
rather, an habitual offender conviction is an enhancement of the sentence for
[the conviction to which it is attached].” Id. at 1107 (citing Ind. Code § 35-50-2-
8). The Boykin court recognized that courts are prohibited from increasing or
decreasing the length of a sentence after accepting a plea agreement. Id. (citing
Ind. Code § 35-35-3-3(e) (“If the court accepts a plea agreement, it shall be
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bound by its terms.”)). Therefore, the Boykin court held, “[O]nce an habitual
offender conviction is vacated, the sentence for [the conviction to which it is
attached] has been altered, and therefore, it must also be vacated.” Id. (citing
Roe v. State, 598 N.E.2d 586, 588 (Ind. Ct. App. 1992), trans. denied). The
Boykin court concluded that the remainder of Boykin’s plea agreement
remained effective because the vacatur of the habitual offender enhancement
“did not alter any of the other sentences contained in the plea agreement.” Id.The Boykin court noted that “the final sentence under Plea I will be three years,
to run concurrently with a fifteen year sentence under Plea II. Thus, Boykin's
original sentence, a total of fifteen years, will remain unchanged following this
appeal.” Id. at n.11.
[18] Pursuant to Boykin, the vacatur of Arnold’s habitual offender enhancement
impermissibly alters the sentence for the conviction to which the enhancement
was attached, and therefore that conviction must also be vacated.2 Here, the
plea agreement erroneously attached the habitual offender enhancement to all
three criminal recklessness convictions. Indiana Code Section 35-50-2-8
provides,
Habitual offender is a status that results in an enhanced sentence. It is
not a separate crime and does not result in a consecutive sentence. The
court shall attach the habitual offender enhancement to the felony
2
Arnold contends that Boykin does not require that anything other than his habitual offender enhancement
be vacated because Boykin sought relief through postconviction proceedings, whereas Arnold filed a motion
to set aside habitual offender enhancement. This argument is unavailing because, as discussed in the
previous section, Arnold’s motion should have been treated as a petition for postconviction relief.
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conviction with the highest sentence imposed and specify which felony
count is being enhanced.
[19] Therefore, a habitual offender enhancement must be attached to a single
conviction. However, we can safely ignore the attachment problem in the plea
agreement because, as discussed below, we conclude that the entire plea
agreement must be vacated. Although we reach a different conclusion from
that reached in Boykin, we do so based on an argument that was neither
presented nor discussed in Boykin.
[20] The State argues that the plea agreement is a contract, and pursuant to contract
principles, the vacatur of the habitual offender enhancement requires the
vacatur of the entire plea agreement under these circumstances. Arnold does
not address this argument. “An appellee’s failure to respond to an issue raised
by an appellant is akin to failure to file a brief.” Atchley v. State, 730 N.E.2d 758,
766 (Ind. Ct. App. 2000), trans. denied. In such situations, the appellant will win
reversal by establishing prima facie error, i.e., “error that is evident at first sight,
on first appearance, or on the face of it.” Id.[21] Indiana courts have long recognized that
a plea agreement is contractual in nature, binding the defendant, the
state 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 a plea
agreement, it shall be bound by its terms.” Ind. Code. Ann. § 35-35-3-
3(e) (West Supp. 1993).
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Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994) (citation and quotation
marks omitted). Our supreme court has explained,
It is true that as a general proposition a contract made in violation of a
statute is void and unenforceable. However it is also true that if a
contract contains an illegal provision that can be eliminated without
frustrating the basic purpose of the contract, the court will enforce the
remainder of the contract. [T]he fact that one part of an agreement
may be void or unenforceable does not render the entire agreement
void, if the prohibited and valid provisions are severable, and if the
parties would have entered the bargain absent the illegal portion of the
original agreement. These principles apply even where the illegal or
otherwise objectionable provision is prohibited by statute.
Lee v. State, 816 N.E.2d 35, 38-39 (Ind. 2004) (citations, quotation marks, and
parentheses omitted).
[22] Here, the State and Arnold negotiated a plea agreement in which Arnold agreed
to plead guilty to three class C felony offenses and being a habitual offender and
to receive a twenty-year sentence in exchange for the State dismissing the three
remaining charges against him which included a class A felony attempted
murder charge. At the vacatur hearing, the State argued that the habitual
offender enhancement was “central” to the State’s agreement to forgo trial on
the class A felony attempted murder charge:
[T]he State didn’t agree to an eight year sentence. What this
Defendant did was a horrific act. He got in a truck. He ran over
people. He backed up, ran over more people. Backed up and tried to
run over another person. He has a violent history. Eight years was
not something that the State of Indiana was going to agree - agree to
having - to resolve this case. The Court well remembers it was set for
trial and the State was prepared and willing to go to trial. The Defense
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did not want to go to trial. The Defendant did not want to try these
charges.
Tr. at 44-45.
[23] We are persuaded by the State’s argument. The State dismissed a class A
felony attempted murder charge in exchange for Arnold’s agreement to serve a
twenty-year sentence. The class A felony exposed Arnold to a thirty-year
advisory sentence and a fifty-year maximum sentence. Ind. Code § 35-50-2-4.
In vacating the habitual offender enhancement, the trial court changed the
sentence the parties had bargained for from twenty years to eight.3 We cannot
say that the State would have entered the agreement without the habitual
offender enhancement. We conclude that the habitual offender enhancement
cannot be eliminated without frustrating the basic purpose of the contract.
Therefore, we conclude that the State has presented a prima facie case that the
trial court erred in failing to set aside Arnold’s plea agreement when it vacated
the habitual offender enhancement.
[24] Accordingly, we affirm the trial court’s decision to vacate Arnold’s habitual
offender enhancement, reverse its decision to keep the remainder of the plea
agreement intact, and remand with instructions to vacate the plea agreement
3
In Boykin, the vacatur of the conviction to which the habitual offender enhancement was attached did not
alter the aggregate sentence the parties had agreed on. 702 N.E.2d at 1107 n.11.
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and its resulting convictions and for further proceedings consistent with this
opinion.4
[25] Affirmed in part, reversed in part, and remanded.
Friedlander, J., and Kirsch, J., concur.
4
The prohibition against double jeopardy does not bar the State from refiling the charges against Arnold.
“[A] defendant is not put in jeopardy by a void judgment and may be re-prosecuted on the charge.” Niece v.
State, 456 N.E.2d 1081, 1084 (Ind. Ct. App. 1983); see also Boykin, 702 N.E.2d at 1107 n. 10.
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