MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 05 2018, 9:03 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gregory Rader, April 5, 2018 Appellant-Defendant, Court of Appeals Case No. 48A05-1709-CR-2092 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Thomas Newman, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 48C03-1505-F5-735 & 48C03- 1603-F5-428
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Plaintiff, Gregory Rader, appeals the trial court’s imposition of a
sentence after being found ineligible to participate in Drug Court.
[2] We affirm.
ISSUE [3] Rader presents us with one issue on appeal, which we restate as: Whether the
trial court violated the plea agreement by imposing a sentence after Rader
became ineligible to participate in Drug Court.
FACTS AND PROCEDURAL HISTORY [4] On May 18, 2015, the State filed an Information, charging Rader with a Level 5
felony operating a vehicle after forfeited for life; a Class A misdemeanor
operating a vehicle with a BAC over .15; and a Class C misdemeanor operating
a vehicle while intoxicated under Cause Number 48C03-1505-F5-735 (F5-735).
On December 21, 2015, Rader pled guilty as charged, but sentencing was
stayed pending a referral to the Madison County Drug Court. At the time of
the referral, Rader was serving a sentence on home detention out of Hamilton
County. Under the terms of the plea agreement entered into in F5-735, he was
to report to the Madison County Drug Court for evaluation after he completed
serving the Hamilton County sentence. Pursuant to the terms of the plea:
Sentencing shall be stayed and the Defendant referred to the Madison County Drug Court Program. If the Defendant successfully completes (graduates) Drug Court, the charges
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 2 of 7 herein shall be dismissed. If the Defendant fails to graduate from Drug Court for any reason, sentencing shall be open to the [c]ourt. The Defendant shall start Drug Court after serving his current home detention in Hamilton County.
(Appellant’s App. Vol. II, pp. 38-39) (emphasis added).
[5] On March 2, 2016, the State filed another Information, charging Rader with a
Level 5 felony operating a vehicle after forfeited for life under Cause Number
48C03-1603-F5-428 (F5-428). On August 24, 2016, Rader entered into the
same plea agreement with the State to resolve the F5-428 case: he pled guilty as
charged in exchange for a stayed sentenced and a referral to the Madison
County Drug Court. Again, the agreement specified that “If the Defendant
successfully completes (graduates) Drug Court, the charges herein shall be
dismissed. If the Defendant fails to graduate from Drug Court for any reason,
sentencing shall be open to the [c]ourt.” (Appellant’s App. Vol. II, pp. 83-84)
(emphasis added). Rader was scheduled to complete his Hamilton County
sentence in December 2016, at which point he was to report to the Drug Court.
[6] On December 22, 2016, the Drug Court notified the trial court that Rader was
ineligible for participation in its program because he did not reside in the
county. Rader refused to move to Madison County, informing the Drug Court
that it would present an undue hardship on him. On January 30, 2017, the trial
court conducted a sentencing hearing at which Rader failed to appear and a
warrant was issued for his arrest. Rader remained at large for the next eight
months.
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 3 of 7 [7] During the sentencing hearing on August 14, 2017, Rader requested the trial
court for another opportunity to participate in the Drug Court program. The
trial court noted that it was “just totally unbelievable” that Rader had refused to
comply with the eligibility requirements of the program, and that he “has been
out running around for eight (8) months after thumbing his nose at the [c]ourt
and his opportunity to do Drug Court.” (Transcript pp. 62-63). The trial court
imposed an aggregate sentencing of six years in F5-735, and a six-year sentence
in F5-428, with the sentences in the two causes to run consecutively.
[8] Rader now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [9] Rader contends that the trial court violated the plea agreement by imposing a
sentence where the language of the plea agreement was ambiguous. Initially we
note that Rader never asserted the ambiguity of the plea agreement’s terms as a
basis for his request to give him a second opportunity to comply with the
requirements of the Drug Court. “[A] trial court cannot be found to have erred
as to an issue or argument that it never had an opportunity to consider.”
Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Therefore, as a general
rule, a party may not present an argument or issue on appeal unless the party
raised that argument or issue for the trial court. Id. In such circumstances the
argument is waived. Id.
[10] Waiver notwithstanding, we will address Rader’s argument on its merits. Our
courts have long held that plea agreements are in the nature of contracts entered
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 4 of 7 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 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 the plea agreement, it shall be bound by its terms.
Id. As such, we will look to principles of contract law when construing plea
agreements to determine what is reasonably due to the defendant. Id. The
primary goal of contract interpretation is to give effect to the parties’ intent.
Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008), 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. at 483. Rather, we will 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. Id.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 05 2018, 9:03 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gregory Rader, April 5, 2018 Appellant-Defendant, Court of Appeals Case No. 48A05-1709-CR-2092 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Thomas Newman, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 48C03-1505-F5-735 & 48C03- 1603-F5-428
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Plaintiff, Gregory Rader, appeals the trial court’s imposition of a
sentence after being found ineligible to participate in Drug Court.
[2] We affirm.
ISSUE [3] Rader presents us with one issue on appeal, which we restate as: Whether the
trial court violated the plea agreement by imposing a sentence after Rader
became ineligible to participate in Drug Court.
FACTS AND PROCEDURAL HISTORY [4] On May 18, 2015, the State filed an Information, charging Rader with a Level 5
felony operating a vehicle after forfeited for life; a Class A misdemeanor
operating a vehicle with a BAC over .15; and a Class C misdemeanor operating
a vehicle while intoxicated under Cause Number 48C03-1505-F5-735 (F5-735).
On December 21, 2015, Rader pled guilty as charged, but sentencing was
stayed pending a referral to the Madison County Drug Court. At the time of
the referral, Rader was serving a sentence on home detention out of Hamilton
County. Under the terms of the plea agreement entered into in F5-735, he was
to report to the Madison County Drug Court for evaluation after he completed
serving the Hamilton County sentence. Pursuant to the terms of the plea:
Sentencing shall be stayed and the Defendant referred to the Madison County Drug Court Program. If the Defendant successfully completes (graduates) Drug Court, the charges
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 2 of 7 herein shall be dismissed. If the Defendant fails to graduate from Drug Court for any reason, sentencing shall be open to the [c]ourt. The Defendant shall start Drug Court after serving his current home detention in Hamilton County.
(Appellant’s App. Vol. II, pp. 38-39) (emphasis added).
[5] On March 2, 2016, the State filed another Information, charging Rader with a
Level 5 felony operating a vehicle after forfeited for life under Cause Number
48C03-1603-F5-428 (F5-428). On August 24, 2016, Rader entered into the
same plea agreement with the State to resolve the F5-428 case: he pled guilty as
charged in exchange for a stayed sentenced and a referral to the Madison
County Drug Court. Again, the agreement specified that “If the Defendant
successfully completes (graduates) Drug Court, the charges herein shall be
dismissed. If the Defendant fails to graduate from Drug Court for any reason,
sentencing shall be open to the [c]ourt.” (Appellant’s App. Vol. II, pp. 83-84)
(emphasis added). Rader was scheduled to complete his Hamilton County
sentence in December 2016, at which point he was to report to the Drug Court.
[6] On December 22, 2016, the Drug Court notified the trial court that Rader was
ineligible for participation in its program because he did not reside in the
county. Rader refused to move to Madison County, informing the Drug Court
that it would present an undue hardship on him. On January 30, 2017, the trial
court conducted a sentencing hearing at which Rader failed to appear and a
warrant was issued for his arrest. Rader remained at large for the next eight
months.
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 3 of 7 [7] During the sentencing hearing on August 14, 2017, Rader requested the trial
court for another opportunity to participate in the Drug Court program. The
trial court noted that it was “just totally unbelievable” that Rader had refused to
comply with the eligibility requirements of the program, and that he “has been
out running around for eight (8) months after thumbing his nose at the [c]ourt
and his opportunity to do Drug Court.” (Transcript pp. 62-63). The trial court
imposed an aggregate sentencing of six years in F5-735, and a six-year sentence
in F5-428, with the sentences in the two causes to run consecutively.
[8] Rader now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [9] Rader contends that the trial court violated the plea agreement by imposing a
sentence where the language of the plea agreement was ambiguous. Initially we
note that Rader never asserted the ambiguity of the plea agreement’s terms as a
basis for his request to give him a second opportunity to comply with the
requirements of the Drug Court. “[A] trial court cannot be found to have erred
as to an issue or argument that it never had an opportunity to consider.”
Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Therefore, as a general
rule, a party may not present an argument or issue on appeal unless the party
raised that argument or issue for the trial court. Id. In such circumstances the
argument is waived. Id.
[10] Waiver notwithstanding, we will address Rader’s argument on its merits. Our
courts have long held that plea agreements are in the nature of contracts entered
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 4 of 7 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 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 the plea agreement, it shall be bound by its terms.
Id. As such, we will look to principles of contract law when construing plea
agreements to determine what is reasonably due to the defendant. Id. The
primary goal of contract interpretation is to give effect to the parties’ intent.
Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008), 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. at 483. Rather, we will 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. Id.
[11] Rader’s plea agreement required him to enter the Madison County Drug Court
program and, upon successful completion of the program, all charges in the
plea agreement would be dismissed. However, if Rader failed “to graduate
from Drug Court for any reason, sentencing shall be open to the court.” Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 5 of 7 (Appellant’s App. Vol. II, pp. 38-39, 83-84) (emphasis added). Rader now
posits that “[t]he plea agreement lacked precision and is silent as to what is to
happen if Rader is not accepted into the program or deemed ineligible.”
(Appellant’s Br. p. 13). Because of this perceived ambiguity and lack of
specifics, Rader requests the parties to be returned “to their former positions
and have an opportunity to negotiate a new plea agreement.” (Appellant’s Br.
p. 14). We disagree.
[12] The plea agreement clearly states that if Rader fails to graduate from the Drug
Court program for any reason, sentencing shall be open to the trial court. As
such, acceptance into the program is a precondition to graduate. At this point,
Rader’s failure to graduate is definite as he refused to relocate and thus he is no
longer eligible to participate in the program. Under the terms of the plea
agreement, the reason for Rader’s failure to graduate is immaterial as “any
reason” is sufficient to trigger the trial court’s sentencing discretion.
Furthermore, due to his refusal to relocate, Rader was the only one responsible
for his failure to graduate from the program. Rader never presented any
evidence that he misunderstood that his refusal to relocate would make him
ineligible for participation in the Drug Court, had requested additional time to
relocate, or presented circumstances outside of his control that prevented him
from accepting the Drug Court’s eligibility requirements. Moreover, rather
than presenting himself to the trial court upon his refusal to comport to the
requirements of the Drug Court, Rader absconded and failed to appear for his
sentencing hearing, spending the next eight months at large while the record
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 6 of 7 reflects that he was aware that a warrant had been issued for his arrest. Rader’s
argument that “the [t]rial [c]ourt knew at the time of [p]lea [a]greement [] that
Rader was living in another county” is unavailing as Rader himself negotiated
the terms of the plea and the trial court merely accepted the bargain he struck
with the State. (Appellant’s Br. p. 14). Equally without merit is Rader’s claim
that he was not afforded due process “when facing termination of participation
in a drug court program.” Gosha v. State, 931 N.E.2d 432, 434-35 (Ind. Ct. App.
2010). These rights apply when there has been a “violation of at least one of the
conditions of the participation agreement.” See Ind. Code § 33-23-16-14.5.
However, here, Rader, by his own refusal, never entered into a participation
agreement with the Drug Court, let alone violated one of the conditions of the
participation agreement. Accordingly, we cannot conclude that the trial court
violated the terms of the plea agreement by sentencing Rader.
CONCLUSION [13] Based on the foregoing, we hold that trial court did not violate the terms of the
plea agreement by imposing a sentence after Rader became ineligible for Drug
Court.
[14] Affirmed.
[15] May, J. and Mathias, J. concur
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 7 of 7