Deontray Foster v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 27, 2017
• Docket: 02A05-1609-CR-2232
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 27 2017, 8:54 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Deputy Public Defender Attorney General Fort Wayne, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Deontray Foster, January 27, 2017 Appellant-Defendant, Court of Appeals Case No. 02A05-1609-CR-2232 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1603-F6-284

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017 Page 1 of 8 Case Summary [1] The State presented Deontray Foster with a written plea agreement that it had

signed. After Foster signed the agreement but before it was presented to the

trial court, the State learned that Foster had failed to appear for his bond-

supervision appointments in this case. Accordingly, the State withdrew from

the agreement, and Foster pled guilty without the benefit of a plea agreement.

Foster now appeals, asking us to re-examine Indiana law regarding the State’s

authority to withdraw from plea agreements that have been signed by both the

State and the defendant. We decline to change well-established Indiana law on

this point and therefore affirm.

Facts and Procedural History [2] On March 10, 2016, the State charged Foster with the following counts: Count

I, Level 6 felony kidnapping; Count II, Level 6 felony criminal confinement;

Count III, Class A misdemeanor domestic battery; and Count IV, Class A

misdemeanor interference with the reporting of a crime. Foster was

conditionally released on a surety bond pending trial.

[3] The State presented Foster with a written plea agreement on June 23, 2016. Ex.

A. The plea agreement was signed by the Allen County Prosecutor as well as

the deputy prosecutor assigned to the case. According to the terms of the

agreement, Foster would plead guilty to Counts II and III and, in exchange, the

State would dismiss Counts I and IV. In addition, Foster would receive

Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017 Page 2 of 8 consecutive sentences of two years for Count II and one year for Count III, all

suspended to probation.

[4] Six days after the plea agreement was presented to Foster, on June 29, Allen

Superior Court Pretrial Services filed a notice with the trial court that Foster

had failed to appear for two supervision appointments that month. Appellant’s

App. p. 14; see also Sent. Tr. p. 15 (Foster admitting that he did not have any

excuses for failing to appear). The court issued a bench warrant for Foster’s

arrest, and he was arrested and held without bond.

[5] On August 23, 2016, Foster appeared before an Allen Superior Court

magistrate for a guilty-plea hearing. Notably, the plea agreement presented to

Foster on June 23 was not mentioned during this hearing. See generally Guilty

Plea Tr. Instead, the trial court confirmed with Foster that he was pleading

guilty to Counts II, III, and IV (as opposed to just Counts II and III, as

provided for in the June 23 plea agreement) “without the benefit of a plea

agreement.” Id. at 6 (emphasis added). The trial court also discussed the

sentencing range for each count as well as the fact that it was up to the court to

decide whether his sentences would be served concurrently or consecutively

and whether any time would be suspended. Id. at 8. After confirming with the

court that no promises had been made to him to cause him to plead guilty, id. at

9, Foster pled guilty to Counts II, III, and IV. The State then moved to dismiss

Count I. The court accepted Foster’s guilty plea to Counts II, III, and IV,

ordered a presentence-investigation report, and set the matter for sentencing

before the judge on September 22.

Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017 Page 3 of 8 [6] At the sentencing hearing, the judge confirmed with Foster that he had pled

guilty to Counts II, III, and IV. Defense counsel recommended a two-year

sentence, all suspended to probation. In contrast, the deputy prosecutor

recommended an executed sentence of three years based on Foster’s criminal

history and failure to report to pretrial services while on bond in this case. In

response to the deputy prosecutor’s recommendation, defense counsel offered

into evidence the June 23 plea agreement, which was signed by Foster on

August 23 and file-stamped that same day as well—the very day that he pled

guilty to Counts II, III, and IV “without the benefit of a plea agreement.” The

deputy prosecutor objected, claiming that the plea agreement had expired

before Foster signed it and in any event was no longer “on the table” because

Foster had failed to report to pretrial services in this case, requiring a warrant

for his arrest. Sent. Tr. p. 13. Defense counsel conceded that the June 23 plea

agreement “did not proceed” and confirmed that he was “not contesting the

guilty plea”1 but explained to the judge what had happened:

What occurred is we had kind of a sit down with this plea, and then the Deputy Prosecuting Attorney screwed with the Court, grabbed the plea out of the Magistrate Judge’s hands and ripped it up here. So we proceeded on the basis of a straight up plea so that we could contest this fabulous sentencing.

1 According to Indiana Code section 35-35-1-4(b), the trial court, before sentencing, may allow a defendant to withdraw his guilty plea “for any fair and just reason.”

Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017 Page 4 of 8 Id. at 6, 12. On appeal, Foster claims that this event occurred at the August 23

guilty-plea hearing, see Appellant’s Br. p. 8, but it is not reflected in the

transcript of that hearing. In any event, the deputy prosecutor admitted that she

ripped up the plea agreement because of its expiration as well as “the

intervening act” of Foster failing to report to pretrial services in this case. Sent.

Tr. p. 13 (“He has shown he’s not appropriate for Court supervision by his

actions after this plea was tendered, and because it was ripped up, that means it

was no longer a binding contract at all and not for the Court’s consideration.”).

Defense counsel maintained that it was “relevant to the Court’s consideration

as to what sentence should be given in this case” because it showed that the

State thought a three-year suspended sentence was appropriate. Id. at 12.

[7] The trial court admitted the plea agreement into evidence. However, the court

sentenced Foster to two-and-a-half years, all executed. The court identified as a

mitigator that Foster had taken responsibility and pled guilty. As aggravators,

the court identified Foster’s criminal history (nine juvenile adjudications, six

misdemeanors, and three felonies), his prior conviction for criminal

confinement (the same conviction as one of the convictions in this case), his

prior conviction for an unauthorized absence from home detention (which

showed his failure at community supervision), and his failure to report to

pretrial services while on bond in this case.

[8] Foster now appeals.

Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017 Page 5 of 8 Discussion and Decision [9] Foster contends that “the trial court erred in entering a sentence wildly in excess

of [the June 23 plea] agreement.” Appellant’s Br. p. 11. Under current Indiana

law, he concedes that the trial court “was under no duty or compulsion to

sentence [him] pursuant to the terms of the” June 23 plea agreement; however,

he claims that “it is time for this Court to re-examine” Indiana law concerning

the State’s authority to withdraw from plea agreements that have been signed

by both the State and the defendant. Id. We decline to change well-established

Indiana law on this point.

[10] Our plea-bargaining process is controlled largely by statute. Badger v. State, 637

N.E.2d 800, 802 (Ind. 1994); see also Ind. Code ch. 35-35-3; Ind. Code §§ 35-

31.5-2-236, -272. As recognized by our Supreme Court, the statutory

framework provides, directly or implicitly, for five stages to the plea-bargaining

process: (1) the State and the defendant reach an agreement concerning the

disposition of felony or misdemeanor charges; (2) the State presents the

agreement to the trial court along with any recommendation; (3) the court

decides whether to accept or reject the agreement as filed (if the court accepts

the agreement, it becomes bound by the terms; but if the court rejects the

agreement, new agreements may be reached); (4) the actual entry of the guilty

plea; and (5) sentencing. Badger, 637 N.E.2d at 802-03.

[11] Here, this case never reached Step 2. Even though Foster signed the plea

agreement on August 23 and had it file-stamped that same day, the agreement

Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017 Page 6 of 8 was not presented on the record to the court for consideration. Instead, Foster

voluntarily pled guilty “without the benefit of a plea agreement.”

[12] But even if the State had presented the June 23 plea agreement to the trial court

for consideration, the State has the freedom to withdraw from a plea agreement

before it is accepted by the court.2 Mendoza v. State, 869 N.E.2d 546, 552 (Ind.

Ct. App. 2007), trans. denied; see also Campbell v. State, 17 N.E.3d 1021 (Ind. Ct.

App. 2014) (holding that the trial court properly allowed the State to withdraw

from a plea agreement even after the court had accepted it based on the

defendant’s breach of the agreement’s express terms). In other words, offer and

acceptance of an agreement by the parties does not compel acceptance of the

agreement by the court; otherwise, there would be no need for Step 3, where the

court chooses to accept or reject the agreement. Badger, 637 N.E.2d at 803;

Coker v. State, 499 N.E.2d 1135, 1138 (Ind. 1986) (explaining that even the

immediate acceptance of an offer by the defendant does not create a right to

have that agreement specifically enforced), reh’g denied; see also Ind. Code § 35-

35-3-3 (explaining the trial court’s choice to accept or reject a plea agreement

and the effect of each choice).

[13] Accordingly, it is well-established law in this state that a plea agreement only

becomes binding when it is accepted by the trial court. I.C. § 35-35-3-3(e) (“If

2 The only exception is when the State has materially benefitted from the terms of the agreement or the defendant has relied on terms of the agreement to his substantial detriment, both of which Foster concedes do not apply here. Appellant’s Br. p. 11.

Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017 Page 7 of 8 the court accepts a plea agreement, it shall be bound by its terms.”); Badger, 637

N.E.2d at 803. And this rule makes perfect sense in cases like these, where

there are circumstances that occur or come to light after a plea agreement is

signed by both parties but before it is presented to the court for acceptance or

rejection. See Stone v. State, 27 N.E.3d 341, 343 (Ind. Ct. App. 2015) (noting

that the court is free to reject a plea agreement if the defendant engages in

misconduct before the guilty-plea hearing). Here, after presenting Foster with

the plea agreement, the State found out that he had missed two pretrial services

appointments that month. Based on this, the State understandably was

unwilling to recommend a sentence of probation to a defendant who could not

obey the terms of his conditional release in that very case. The State acted

within its authority when it withdrew from the June 23 plea agreement;

therefore, Foster was not entitled to have the court consider the agreement for

either acceptance or rejection or to be sentenced in accordance with it.3

[14] Affirmed.

Bradford, J., and Brown, J., concur.

3 In the alternative, Foster asks us to use our inherent power to revise to his sentence to “two and one half years (2 ½), all suspended, with three (3) years” of probation. Appellant’s Br. p. 18. Given Foster’s criminal history and failure to report to pretrial services while on bond in this case, we find that Foster’s two-and-a-half-year executed sentence for two Class A misdemeanors and one Level 6 felony is not inappropriate.

Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017 Page 8 of 8