Zachery A. Doan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Apr 20 2015, 9:29 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Gregory F. Zoeller
Fort Wayne. Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Zachery A. Doan, April 20, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1408-CR-302
v. Appeal from the
Allen Superior Court
State of Indiana, The Honorable Frances C. Gull,
Judge
Appellee-Plaintiff The Honorable Samuel R. Keirns,
Magistrate
Cause No. 02D04-1403-FA-14
Kirsch, Judge.
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[1] Pursuant to an oral plea agreement, Zachery A. Doan was convicted of
burglary1 as a Class A felony and robbery2 as a Class A felony. Doan now
appeals, contending that the trial court violated the terms of his plea agreement
when, at the time of sentencing, it reduced his burglary conviction from a Class
A felony to a Class B felony and sentenced him to consecutive sentences.
[2] We affirm.
Facts and Procedural History
[3] In March 2014, eighty-year-old N.B. answered a knock at her door to find her
neighbor’s nephew Doan standing there. At Doan’s request, N.B. reluctantly
allowed him to use her bathroom. As he left, Doan said that his car was out of
gas. N.B. told Doan he could use the gas can in her garage, but a few minutes
later Doan returned saying that the gas can was broken. When Doan asked to
use her phone, N.B. refused to allow Doan inside. Doan pounded on N.B.’s
front door and demanded that she give him a ride, but N.B. told Doan to go to
his relative’s house next door. Ultimately, Doan broke down N.B.’s back door,
attacked her, and hit her repeatedly in the face. N.B. lost consciousness. Doan
stole $100 in cash, N.B.’s cell phone, and her identification cards. As a result of
1
See Ind. Code § 35-43-2-1. We note that, effective July 1, 2014, a new version of the criminal statutes at
issue in this case were enacted. Because Doan committed his crimes prior to July 1, 2014, we will apply the
statutes in effect at the time he committed his crimes.
2
See Ind. Code § 35-42-5-1.
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Doan’s attack, N.B. suffered multiple fractures to her face, lost one eye
completely, and lost vision in both of her eyes.
[4] Doan was charged with: Count I, burglary of a dwelling resulting in bodily
injury as a Class A felony; Count II, robbery resulting in serious bodily injury as
a Class A felony; and Count III, aggravated battery as a Class B felony. The
same bodily injury to N.B. was used to enhance Counts I and II to Class A
felonies. About two weeks before trial, the trial court held a guilty plea hearing
and the following exchange occurred between the trial judge and Doan:
Q. You’re pleading guilty to two (2) class A felonies. The range of
penalty is twenty (20) years to fifty (50) years. There is an advisory
sentence of thirty (30) years, and a fine of up to ten thousand dollars
($10,000.00). Do you understand the range of the penalties and
possible fines?
A. Yes your honor.
Q. Do you understand that if you have a prior conviction the prior
conviction may increase the sentence or prevent the Court from
suspending the sentence?
A. Yes Your Honor.
Q. Do you understand that I will decide whether the terms of prison
shall be served concurrently or consecutively?
A. Yes Your Honor.
Guilty Plea Tr. at 8. The State clarified that Doan was pleading guilty only to
Counts I and II, “Your Honor, at sentencing the State will agree to dismiss
Count III.” Id. at 7.
[5] Doan pleaded guilty to Class A felony burglary and Class A felony robbery and
a factual basis was established. Guilty Plea Tr. at 7. The trial court found that
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Doan understood the nature of the charges against him and the possible
sentences and fines thereon, and accepted Doan’s guilty plea. 3 Id. at 13. At the
request of the State, and in recognition that the double enhancement created a
double jeopardy concern, the trial court reduced Doan’s Class A felony
burglary conviction to a Class B felony conviction and sentenced him to twenty
years for Class B felony burglary and fifty years for Class A felony robbery.
The trial court ordered the sentences to run consecutive to each other for an
aggregate executed sentence of seventy years. Doan was also ordered to pay
restitution in the amount of $21,470.00. As promised in the plea agreement, the
trial court granted the State’s motion to dismiss Count III. Sentencing Tr. at 40.
Doan now appeals.
Discussion and Decision
[6] Doan contends that the trial court violated the terms of his plea agreement
when, at the time of sentencing, it impermissibly reduced his burglary
conviction from a Class A felony to a Class B felony, and ordered that his
sentences run consecutive to each other.4 Doan is not appealing the
3
The trial court did not order the presentence investigation report until after it had accepted Doan’s guilty
plea. Guilty Plea Tr. at 13. We remind the trial court that “[i]n accepting a felony guilty plea[,] the preferred
procedure is to defer acceptance of a guilty plea and plea agreement and entry of judgment until the court has
had the opportunity to review the presentence report.” Benson v. State, 780 N.E.2d 413, 420 n.5 (Ind. Ct.
App. 2002), trans. denied; see Malenchik v. State, 928 N.E.2d 564, 568 (Ind. 2010) (for all felonies, except Class
D felonies, trial court may not accept defendant’s guilty plea or sentence defendant until it considers written
pre-sentence report prepared by probation officer).
4
Doan’s plea agreement was not in writing; instead, it was orally entered into the record during the guilty
plea hearing. We note that, while a plea agreement in a misdemeanor case may be submitted orally to the
court, “[n]o plea agreement may be made by the prosecuting attorney to a court on a felony charge except:
(1) in writing; and (2) before the defendant enters a plea of guilty.” Ind. Code § 35-35-3-3. Doan made no
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appropriateness of his sentence under Trial Rule 7(B). Instead, he contends that
it was error for the trial court to reduce his Class A felony conviction in order to
remedy any double jeopardy violation, thereby allowing the trial court to order
Doan’s sentences to run consecutive to each other.
[7] We first note that Doan may have waived this issue. During the sentencing
hearing, the State requested that Count I be reduced to a Class B felony
burglary conviction to remove the element of the underlying injury and, thus,
remove a double jeopardy violation. The trial court asked defense counsel if he
had any response. Instead of addressing the specific issue of the reduction of
the felony conviction, defense counsel merely argued that Doan’s sentences
should run concurrently because the two events constituted “one continuous
act.” Sentencing Tr. at 31. Because the State does not contend that Doan has
waived his right to contest the trial court’s act of modifying the plea agreement
to reduce the “A” felony conviction to a “B” felony conviction, we address
Doan’s argument.5
objection to the form of the plea agreement, and the trial court accepted Doan’s oral plea. While the nature
of Doan’s plea has no impact on the resolution of the issue before us, we emphasize the need for plea
agreements on felony charges to be in writing.
5
Citing to Mapp v. State, the State notes that Doan has waived his right to challenge his plea on the grounds
that it constitutes a double jeopardy violation. 770 N.E.2d 332, 334 (Ind. 2002) (holding defendant waived
right to challenge plea agreement on double jeopardy grounds and there is no exception even for “facially
duplicative” charges). While we agree with this statement, we note that Doan is not directly challenging his
guilty plea; instead he is challenging the trial court’s act of modifying his plea agreement to reduce his
burglary conviction from a Class A felony to a Class B felony.
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[8] “Our courts have long held that plea agreements are in the nature of contracts
entered into between the defendant and the State.” Grider v. State, 976 N.E.2d
783, 785 (Ind. Ct. App. 2012) (citing Lee v. State, 816 N.E.2d 35, 38 (Ind.
2004)).
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.
Id. at 785-86 (quoting Lee, 816 N.E.2d at 38 (citation omitted)). Accordingly,
“we will look to principles of contract law when construing plea agreements to
determine what is reasonably due to the defendant.” Id. at 786. The primary
goal of contract interpretation is to give effect to the parties’ intent. Id. (citing
Griffin v. State, 756 N.E.2d 572, 574 (Ind. Ct. App. 2001), trans. denied).
[9] During the guilty plea hearing, the trial court confirmed with Doan that he was
not under the influence of drugs or alcohol, that he knew his rights and the
rights he was giving up by pleading guilty, and that he had not been forced or
threatened to plead guilty. Guilty Plea Tr. at 5-6, 9. The trial court then
confirmed with Doan that he understood: (1) the State would dismiss Count III
at sentencing; (2) he was pleading guilty to two Class A felonies, with the range
of sentencing for each being twenty years to fifty years; (3) the trial court would
decide whether the prison sentences would be served concurrently or
consecutively; and (4) if Doan had a prior conviction, it could increase the
sentence or prevent the court from suspending the sentence. Id. at 8.
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[10] As the hearing continued, the trial court clarified that Doan was pleading guilty
to knowingly or intentionally breaking and entering the dwelling of N.B. with
intent to commit the felony of theft therein, and that said act resulted in serious
bodily injury to N.B. Id. at 7. Additionally, Doan was pleading guilty to
knowingly or intentionally taking property from the presence of N.B. by using
or threatening the use of force or by putting N.B. in fear, and that said act
resulted in serious bodily injury to N.B. Id. The trial court accepted Doan’s
plea of guilty to both Class A felony burglary and Class A felony robbery. Id. at
13.
[11] On appeal, Doan does not deny that he committed the offenses to which he
pleaded guilty. In fact, Doan’s guilty plea was a confession of guilt regarding
all the incriminating facts alleged. See McWhorter v. State, 945 N.E.2d 1271,
1273 (Ind. Ct. App. 2011) (“A valid guilty plea is a confession of guilt made
directly to a judicial officer and necessarily admits the incriminating facts
alleged.”), trans. denied. Instead, Doan maintains that “the State at some point
in time, realized the dilemma posed by the plea agreement,” and that “[i]n an
effort to resolve this dilemma, the State, at sentencing asked the Court to
change the conviction for Burglary from an ‘A’ felony to a ‘B’ felony to avoid
the obvious problem.” Appellant’s Br. at 6. Doan maintains that by conceding
to the State’s request, the trial court removed the double jeopardy violation, and
subjected Doan to the maximum sentence. Id.
[12] By arguing that the trial court’s “modification” subjected him to the maximum
sentence, Doan suggests that he consciously decided to plead guilty to two
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crimes that were enhanced to Class A felonies on the basis of the same
underlying injury, knowing that the trial court could not order these sentences
to run consecutively. Therefore, when the trial court reduced the Class A
felony burglary to Class B felony burglary, Doan was deprived of the benefit of
his plea bargain. We remind Doan that in his plea agreement, he granted the
trial court the discretion to sentence him to the maximum sentence allowed.
The trial court’s imposition of the maximum sentence allowed did not deny
Doan the “benefit” of his plea agreement.
[13] As Doan correctly notes, once a court accepts a plea agreement, the court is
bound by the terms of the agreement. Ind. Code § 35-35-3-3(e); Ennis v. State,
806 N.E .2d 804, 809 (Ind. Ct. App. 2004) (citing Bennett v. State, 802 N .E.2d
919, 921-22 (Ind. 2004)). “By the same token, it is also the general, if not
unanimous, rule that a trial court has the power to vacate an illegal sentence
and impose a proper one, even if doing so results in an increased sentence after
the erroneous sentence has been partially executed and regardless of whether
the sentencing error occurred following a trial or a guilty plea.” Id. (internal
quotation marks omitted). Although Doan pleaded guilty to two Class A
felonies, the trial court was still obligated to impose a sentence that did not
punish Doan twice for the injury sustained by N.B.
[14] Our court’s opinion in Scott v. State, 986 N.E.2d 292 (Ind. Ct. App. 2013)
informs our decision.
[T]he State charged Scott with Count I, Class B felony operating a
vehicle with a BAC of at least 0.18 g/dl causing death; Count II, Class
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B felony resisting law enforcement causing death; Count III, Class C
felony reckless homicide; and Count IV, Class C felony criminal
recklessness. On August 21, 2007, Bruce Parent entered his
appearance as Scott’s trial counsel. . . . Scott pled guilty to all counts
without benefit of a plea agreement.
On May 9, 2008, the trial court accepted Scott’s pleas to Counts I and
II but not for Counts III and IV, finding that Counts III and IV were
subsumed into Counts I and II. The trial court sentenced Scott to
fifteen years of incarceration each for Counts I and II, the sentences to
be served consecutively . . . . Scott did not appeal his sentence.
On September 19, 2011, Scott filed a PCR petition [alleging] that he
received ineffective assistance of trial counsel and that the imposition
of consecutive sentences for Counts I and II constituted fundamental
error. During the hearing on Scott’s PCR petition, Parent testified
regarding the advice he had given Scott. Parent testified that he
advised Scott that he would only be sentenced for Counts I and II and
that the maximum sentence he could receive would be thirty years.
Scott, 986 N.E.2d at 293-94. The post-conviction court denied Scott’s PCR
petition.
[15] On appeal, this court found that Scott’s trial counsel was ineffective when he
advised Scott, in connection with his plea agreement, that the maximum
sentence Scott could receive was thirty years. The court reasoned as follows:
In Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002), the Indiana
Supreme Court held generally that the same harm cannot be used to
elevate multiple convictions. See Pierce, 761 N.E.2d. at 830 (“[W]e
have long adhered to a series of rules of statutory construction and
common law that are often described as double jeopardy, but are not
governed by the constitutional test set forth in Richardson [v. State, 717
N.E.2d 32 (Ind. 1999)]. Among these is the doctrine that where a
burglary conviction is elevated to a Class A felony based on the same
bodily injury that forms the basis of a Class B robbery conviction, the
two cannot stand.”). The remedy for such a violation is to reduce one
of the convictions to the highest level it can be without being enhanced
by the same harm used to enhance another conviction. See id. . . .
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Carter v. State, 424 N.E.2d 1047 (Ind. Ct. App. 1981), and Dawson v.
State, 612 N.E.2d 580 (Ind. Ct. App. 1993), although decided before
Pierce, are consistent with it. In those cases, this court addressed the
question of whether one could be convicted of both operating a vehicle
while intoxicated causing death (“OWI death”) and reckless homicide
in a case involving one death. In Carter, this court held that one could
not be sentenced for both where there was one homicide. 424 N.E.2d
at 1048. The Dawson court refined the Carter holding, concluding that
the proper remedy in such cases (at least where there was no double
jeopardy violation) was to reduce the OWI death conviction to mere
OWI, thereby ensuring that Dawson was not being punished twice for
the same death. 612 N.E.2d at 585.
We conclude that Scott’s two convictions clearly fall within the
general rule announced in Pierce and are analogous to the convictions
addressed in Dawson and Carter. The fact of Mitchell’s death was used
to enhance both of Scott’s convictions to Class B felonies, without
which enhancement Scott’s BAC conviction would have been a Class
A misdemeanor and his resisting law enforcement conviction would
have been a Class D felony. Pursuant to Pierce and Dawson, we
conclude that Scott’s resisting law enforcement conviction would have
had to have been reduced to a Class D felony to avoid punishing him
twice for Mitchell’s death, had Scott gone to trial. Therefore, the
lengthiest sentence Scott could have received was twenty-three years.
Scott’s trial counsel’s performance was deficient for failing to inform
Scott of this and informing him, instead, that his maximum sentence
could be thirty years.
Scott, 986 N.E.2d 295-96.
[16] Each of Doan’s crimes includes evidence or facts not essential to the other.
Doan’s admission that he broke and entered the dwelling of N.B. with intent to
commit a felony therein supports burglary and his admission that took N.B.’s
money, cell phone, and identification cards by putting her in fear supports the
robbery. Doan conceded that each of these crimes constituted Class A felonies.
N.B.’s serious bodily injury, however, can only support one enhancement.
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[17] Here, Doan’s convictions clearly fall within the general rule discussed in Scott
and Pierce. “The remedy for such a violation is to reduce one of the convictions
to the highest level it can be without being enhanced by the same harm used to
enhance another conviction.” Scott, 986 N.E.2d at 295. The fact of N.B.’s
bodily injury was used to enhance both his burglary and his robbery
convictions, without which the highest level of Doan’s burglary of N.B.’s
dwelling would have been a Class B felony and the highest level of his robbery
would have been a Class C felony. Pursuant to Scott and Pierce, by keeping
robbery as a Class A felony, on the basis of injuries sustained to N.B., the trial
court would have had to sentence Doan for Class B felony burglary to avoid
punishing him twice for N.B.’s serious bodily injury, as it would have done had
Doan gone to trial. Therefore, the lengthiest sentence Doan could have
received for his Class B felony burglary and his Class A felony robbery were
consecutive sentences of twenty years and fifty years, respectively, for an
aggregate of seventy years. Accordingly, the trial court did not violate the terms
of Doan’s plea agreement when it sentenced Doan in a manner so as to avoid
punishing him twice for N.B.’s injury.
[18] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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