May 26 2015, 9:21 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Valerie K. Boots Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bobby Dunn, May 26, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1407-CR-470 v. Appeal from the Marion Superior Court; The Honorable Lisa Borges, Judge; State of Indiana, 49G04-1311-FC-73907 Appellee-Plaintiff.
May, Judge.
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 1 of 10 [1] Bobby Dunn and the State entered into a plea agreement, which the court
accepted. Then on the morning of his sentencing hearing, the State moved to
withdraw the plea agreement. The court granted the State’s motion.
[2] We reverse and remand for sentencing.
Facts and Procedural History [3] The State charged Dunn with Class D felony theft,1 Class D felony attempted
theft,2 and two counts of Class C felony forgery.3 Because Dunn had charges
for which he was to turn himself in to federal authorities, he requested his court
appearance be expedited. The court rescheduled Dunn’s hearing before his
surrender date to the federal authorities.
[4] The State, represented in court by Deputy Prosecutor Jeremy Teipen, and
Dunn presented a plea agreement to the court whereby Dunn would plead
guilty to theft and the State would dismiss all other pending charges. The
agreement was signed for the State by Deputy Prosecutor Kevin E. Kelly, who
also signed an affidavit at the end of the agreement indicating he had
informed the victim and/or the victim’s representative of the fact that the State has entered into discussion with defense counsel concerning this agreement and of the contents of the State’s recommendation, if any; and, that [Deputy Prosecutor Kelly] will notify the victim and
1 Ind. Code § 35-43-4-2 (2009). 2 Ind. Code § 35-43-4-2 (2009) and § 35-41-5-1 (2013). 3 Ind. Code § 35-43-5-2 (2006).
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 2 of 10 his/her representative of the opportunity to be present when the Court considers the recommendation. (App. at 26.) On the State’s recommendation, the court accepted the plea and
found Dunn guilty of theft.
[5] On the day of sentencing, the State, by Deputy Prosecutor Timothy Baldwin,
moved to withdraw the plea agreement due to what he characterized as a
“mistake in fact,” (Tr. at 23), which was that the State had not intended to offer
a plea agreement. Dunn objected, asserting the only “mistake” was that the
State agents had not communicated well with one another and had differing
opinions as to whether a plea should have been offered.
[6] Deputy Prosecutor Baldwin asserted this “mistake” happened because
expediting the case at Dunn’s request caused the plea to be entered while
Deputy Prosecutor Baldwin was not in the office. Deputy Prosecutor Baldwin
admitted, however, that the plea terms were “offered by [his] supervisor Mr.
Kelly.” (Id. at 42.) Deputy Prosecutor Baldwin also asserted that, contrary to
Deputy Prosecutor Kelly’s affidavit, the victim was not notified of the plea or
the hearings because neither he nor anyone from his office had had any contact
with the victim regarding the plea.
[7] The court found, “While it is true that Mr. Kelly is the supervisor and does
have the authority to dispose of Mr. Baldwin’s cases. [sic] Even without
perhaps Mr. Baldwin’s consent, there still is the issue of the notification of the
victim.” (Id. at 46.) Based on the State’s assertion the victim’s constitutional
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 3 of 10 rights4 had not been protected, the court granted the State’s motion to withdraw
the plea.
Discussion and Decision [8] The trial court erred by granting the State’s motion to withdraw the plea
agreement after the court had accepted it. We review for an abuse of discretion
a decision to permit withdrawal of a plea agreement. Badger v. State, 637
N.E.2d 800, 802 (Ind. 1994). Reversal for abuse of discretion is appropriate
only when the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court. Joyner v. State, 678 N.E.2d 386, 390
(Ind. 1997), reh’g denied.
Whether to accept or reject a proffered plea agreement is within the discretion of the trial court. Campbell v. State, 17 N.E.3d 1021, 1023 (Ind. Ct. App. 2014). Once accepted, however, “If the court accepts a plea agreement, it shall be bound by its terms.” I.C. § 35-35-3-3(e). In numerous cases, this Court and our Indiana Supreme Court have held that the binding nature of a court-accepted plea agreement prevents trial courts from revoking such agreements and vacating previously- entered judgments of conviction - even if the defendant has not yet been sentenced. Stone v. State, 27 N.E.3d 341, 343 (Ind. Ct. App. 2015).
4 Article 1 § 13(b) of the Indiana Constitution provides:
Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 4 of 10 [9] The State and Dunn reached a plea agreement and presented it to the court.
The trial court accepted it on May 16, 2014, when it found Dunn guilty and
scheduled the sentencing hearing. While Dunn had no right to be offered a plea
agreement and the State could have withdrawn it at any point prior to
acceptance by the court, once it was accepted, the court could not revoke or
vacate it. See Epperson v. State, 530 N.E.2d 743, 745 (Ind. Ct. App. 1988) (plea
agreements are similar to contracts and important due process rights of the
defendant are involved; thus, “plea negotiations must accord a defendant
requisite fairness and be attended by adequate safeguards which insure the
defendant what is reasonably due in the circumstances”).
[10] We have, at times, held trial courts have the discretion to revoke plea
agreements after judgment was entered. See, e.g., Beech v. State, 702 N.E.2d
1132 (Ind. Ct. App. 1998) (plea revoked when defendant stated he was innocent
during the sentencing hearing), and Campbell v. State, 17 N.E.3d 1021 (Ind. Ct.
App. 2014) (plea agreement required defendant to testify, but he did not).
Dunn has not asserted he is innocent of the charges, nor has he violated some
express term of the agreement. Thus, these exceptions do not apply.
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May 26 2015, 9:21 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Valerie K. Boots Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bobby Dunn, May 26, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1407-CR-470 v. Appeal from the Marion Superior Court; The Honorable Lisa Borges, Judge; State of Indiana, 49G04-1311-FC-73907 Appellee-Plaintiff.
May, Judge.
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 1 of 10 [1] Bobby Dunn and the State entered into a plea agreement, which the court
accepted. Then on the morning of his sentencing hearing, the State moved to
withdraw the plea agreement. The court granted the State’s motion.
[2] We reverse and remand for sentencing.
Facts and Procedural History [3] The State charged Dunn with Class D felony theft,1 Class D felony attempted
theft,2 and two counts of Class C felony forgery.3 Because Dunn had charges
for which he was to turn himself in to federal authorities, he requested his court
appearance be expedited. The court rescheduled Dunn’s hearing before his
surrender date to the federal authorities.
[4] The State, represented in court by Deputy Prosecutor Jeremy Teipen, and
Dunn presented a plea agreement to the court whereby Dunn would plead
guilty to theft and the State would dismiss all other pending charges. The
agreement was signed for the State by Deputy Prosecutor Kevin E. Kelly, who
also signed an affidavit at the end of the agreement indicating he had
informed the victim and/or the victim’s representative of the fact that the State has entered into discussion with defense counsel concerning this agreement and of the contents of the State’s recommendation, if any; and, that [Deputy Prosecutor Kelly] will notify the victim and
1 Ind. Code § 35-43-4-2 (2009). 2 Ind. Code § 35-43-4-2 (2009) and § 35-41-5-1 (2013). 3 Ind. Code § 35-43-5-2 (2006).
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 2 of 10 his/her representative of the opportunity to be present when the Court considers the recommendation. (App. at 26.) On the State’s recommendation, the court accepted the plea and
found Dunn guilty of theft.
[5] On the day of sentencing, the State, by Deputy Prosecutor Timothy Baldwin,
moved to withdraw the plea agreement due to what he characterized as a
“mistake in fact,” (Tr. at 23), which was that the State had not intended to offer
a plea agreement. Dunn objected, asserting the only “mistake” was that the
State agents had not communicated well with one another and had differing
opinions as to whether a plea should have been offered.
[6] Deputy Prosecutor Baldwin asserted this “mistake” happened because
expediting the case at Dunn’s request caused the plea to be entered while
Deputy Prosecutor Baldwin was not in the office. Deputy Prosecutor Baldwin
admitted, however, that the plea terms were “offered by [his] supervisor Mr.
Kelly.” (Id. at 42.) Deputy Prosecutor Baldwin also asserted that, contrary to
Deputy Prosecutor Kelly’s affidavit, the victim was not notified of the plea or
the hearings because neither he nor anyone from his office had had any contact
with the victim regarding the plea.
[7] The court found, “While it is true that Mr. Kelly is the supervisor and does
have the authority to dispose of Mr. Baldwin’s cases. [sic] Even without
perhaps Mr. Baldwin’s consent, there still is the issue of the notification of the
victim.” (Id. at 46.) Based on the State’s assertion the victim’s constitutional
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 3 of 10 rights4 had not been protected, the court granted the State’s motion to withdraw
the plea.
Discussion and Decision [8] The trial court erred by granting the State’s motion to withdraw the plea
agreement after the court had accepted it. We review for an abuse of discretion
a decision to permit withdrawal of a plea agreement. Badger v. State, 637
N.E.2d 800, 802 (Ind. 1994). Reversal for abuse of discretion is appropriate
only when the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court. Joyner v. State, 678 N.E.2d 386, 390
(Ind. 1997), reh’g denied.
Whether to accept or reject a proffered plea agreement is within the discretion of the trial court. Campbell v. State, 17 N.E.3d 1021, 1023 (Ind. Ct. App. 2014). Once accepted, however, “If the court accepts a plea agreement, it shall be bound by its terms.” I.C. § 35-35-3-3(e). In numerous cases, this Court and our Indiana Supreme Court have held that the binding nature of a court-accepted plea agreement prevents trial courts from revoking such agreements and vacating previously- entered judgments of conviction - even if the defendant has not yet been sentenced. Stone v. State, 27 N.E.3d 341, 343 (Ind. Ct. App. 2015).
4 Article 1 § 13(b) of the Indiana Constitution provides:
Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 4 of 10 [9] The State and Dunn reached a plea agreement and presented it to the court.
The trial court accepted it on May 16, 2014, when it found Dunn guilty and
scheduled the sentencing hearing. While Dunn had no right to be offered a plea
agreement and the State could have withdrawn it at any point prior to
acceptance by the court, once it was accepted, the court could not revoke or
vacate it. See Epperson v. State, 530 N.E.2d 743, 745 (Ind. Ct. App. 1988) (plea
agreements are similar to contracts and important due process rights of the
defendant are involved; thus, “plea negotiations must accord a defendant
requisite fairness and be attended by adequate safeguards which insure the
defendant what is reasonably due in the circumstances”).
[10] We have, at times, held trial courts have the discretion to revoke plea
agreements after judgment was entered. See, e.g., Beech v. State, 702 N.E.2d
1132 (Ind. Ct. App. 1998) (plea revoked when defendant stated he was innocent
during the sentencing hearing), and Campbell v. State, 17 N.E.3d 1021 (Ind. Ct.
App. 2014) (plea agreement required defendant to testify, but he did not).
Dunn has not asserted he is innocent of the charges, nor has he violated some
express term of the agreement. Thus, these exceptions do not apply.
[11] To the extent the trial court permitted withdrawal based on Deputy Prosecutor
Baldwin’s assertion at the sentencing hearing that the victim had not been
notified, any error in the trial court’s original acceptance of the plea was invited
by the State, as Deputy Prosecutor Kelly’s affidavit represented at the guilty
plea hearing that the State had, in fact, notified the victim. (See Appellant’s
App. at 26 (affidavit stating deputy prosecutor had informed victim of plea
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 5 of 10 discussions with Dunn)). And see Brewington v. State, 7 N.E.3d 946, 976 (Ind.
2014) (party may not request relief from error it invited, encouraged, or caused),
cert. denied, reh’g denied.
[12] For these reasons, the court erred in granting the withdrawal of the plea
agreement, and we must reverse and remand for sentencing.
[13] Reversed and remanded.
Pyle, J., concurs. Barnes, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 6 of 10 IN THE COURT OF APPEALS OF INDIANA
Bobby Dunn, Court of Appeals Cause No. 49A02-1407-CR-470 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
Barnes, Judge, dissenting
[14] I respectfully dissent. In 1996, the Indiana Constitution was amended to add
subsection (b) to Article 1, Section 13. This provision gives crime victims the
constitutional right “to be informed of and present during public hearings and
to confer with the prosecution, to the extent that exercising these rights does not
infringe upon the constitutional rights of the accused.” It clearly and directly
gives crime victims the constitutional right to be consulted when a case
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 7 of 10 concerning them is to be disposed of by plea agreement, as well as the right to
be notified of and present at any public hearing regarding the plea.
[15] It is without question that the ultimate decision regarding the course of a
prosecution and whether to enter into a plea agreement belongs to the
prosecutor and is an inherent part of his or her power and authority. See Imbler
v. Pachtman, 424 U.S. 409, 424, 96 S. Ct. 984, 992 (1976) (“A prosecutor is duty
bound to exercise his best judgment both in deciding which suits to bring and in
conducting them in court.”); In re Flatt-Moore, 959 N.E.2d 241, 245 (Ind. 2012)
(holding that, although crime victims may be allowed to have “meaningful
input into plea agreements,” prosecutors are ethically prohibited from
surrendering control of the plea bargaining process to victims). Although I
emphasize that victims do not control the prosecution or plea bargaining
processes, they do have the right to have their opinion considered by the
prosecuting attorney.
[16] Here, the victim was neither consulted by the prosecution nor told of the
change of plea hearing in violation of the victim’s constitutional rights. The
case was pled out, but no sentence had been imposed. Although I agree that
there is much merit to finality in cases and that in most cases a signed plea
agreement binds both parties, I do not believe that efficiency should or could
ever trump a constitutional mandate. This is not a case that is ten years old and
we are being asked to reconstruct events of times long past. After withdrawal of
the original plea, in this or any similar case the prosecutor may resubmit the
plea to the trial court for re-acceptance if he believes it is just to do so. It simply
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 8 of 10 must be done, in my opinion, only after the victim has been consulted and
given the opportunity to be present at the change of plea hearing, pursuant to
the Indiana Constitution. I also believe that withdrawing a plea agreement after
acceptance but before sentencing does not impact a defendant in a way that
offends his or her constitutional rights.
[17] I do not believe that the prosecutor possessed the authority to waive the victim’s
constitutional rights. A prosecutor does not represent the victim of a crime.
Rather, he or she “is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be
done.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935); see also
Matter of Miller, 677 N.E.2d 505 (Ind. 1997) (holding prosecutor committed
misconduct by colluding with crime victim’s private attorney to bring theft
charge against defendant and offering to dismiss charge if defendant settled civil
suit). There may be overlap between a victim’s interests and the government’s,
but they are not identical. For waiver of one’s constitutional rights to be
effective, “there must be an intentional relinquishment or abandonment of a
known right or privilege.” Mathews v. State, 26 N.E.3d 130, 135 (Ind. Ct. App.
2015). Here, because the victim never knew of the proposed plea agreement,
she could not have intentionally relinquished her constitutional rights to be
consulted about the plea and to be present at the change of plea hearing. That
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 9 of 10 the original prosecutor may have misrepresented having consulted with the
victim, as found by the trial court, does not change that fact.
[18] In my view, this is a case in which withdrawal of the plea agreement before
sentencing was warranted. The trial court did not abuse its discretion in
reaching that conclusion. I vote to affirm.
Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015 Page 10 of 10