Paul Michael Kage v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 14, 2012
• Docket: 76A03-1108-CR-379
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of Mar 14 2012, 9:16 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court,

case. court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

HUGH N. TAYLOR GREGORY F. ZOELLER Hugh N. Taylor, P.C. Attorney General of Indiana Auburn, Indiana Indianapolis, Indiana

BRIAN REITZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

PAUL MICHAEL KAGE, ) ) Appellant-Defendant, ) ) vs. ) No. 76A03-1108-CR-379 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE STEUBEN SUPERIOR COURT The Honorable William C. Fee, Judge Cause No. 76D01-1105-FC-397

MARCH 14, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge STATEMENT OF THE CASE

Paul Michael Kage pleaded guilty to operating a motor vehicle after lifetime

forfeiture of driving privileges, a Class C felony. Ind. Code § 9-30-10-17 (1993). He

appeals, arguing that his plea agreement should be set aside. Concluding that Kage may

not challenge the validity of his guilty plea on direct appeal, we dismiss.

ISSUE

Kage raises one issue, which we restate as: whether the trial court erred by

accepting Kage’s guilty plea.

FACTS AND PROCEDURAL HISTORY

The State charged Kage with operating a motor vehicle after lifetime forfeiture of

driving privileges; resisting law enforcement, a Class D felony, Ind. Code § 35-44-3-3

(2011); and operating a vehicle while intoxicated in a manner endangering a person, a

Class A misdemeanor, Ind. Code § 9-30-5-2 (2001). The State also alleged that Kage

was a habitual offender. Ind. Code § 35-50-2-8 (2005).

On the morning of his trial, Kage appeared before the court, with counsel, and

moved to enter a plea of guilty to the charge of operating a motor vehicle after lifetime

forfeiture of driving privileges. The parties represented to the court that the State would

dismiss the remaining charges in exchange for Kage’s guilty plea. There was no written

plea agreement. The trial court subsequently accepted Kage’s plea. At a sentencing

hearing, the trial court sentenced Kage to eight years, and the State dismissed the other

charges. Kage did not file a motion to withdraw his guilty plea. This appeal followed.

2 DISCUSSION AND DECISION

Kage argues that his plea agreement was erroneous because it was not reduced to

writing and that he did not understand the terms of the agreement. The State contends

that Kage cannot challenge his guilty plea on direct appeal.

A person who pleads guilty is not permitted to challenge the propriety of that

conviction on direct appeal. Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004). Instead, a

petition for post-conviction relief is the appropriate vehicle for challenging a guilty plea.

See Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996) (determining that the defendant

could not challenge the factual basis for his guilty plea on direct appeal).

In this case, Kage concedes that he is seeking “to set aside the plea agreement and

subsequent sentencing based on the plea agreement.” Appellant’s Br. p. 8. In other

words, he is presenting on direct appeal a challenge to the validity of his guilty plea,

which is barred by Collins and Tumulty. In the absence of a proper claim for appellate

review, we dismiss Kage’s appeal.

CONCLUSION

For the reasons stated above, we dismiss this appeal without prejudice to Kage’s

right to challenge the validity of his guilty plea in post-conviction proceedings.

Dismissed.

RILEY, J., and CRONE, J., concur.