Shaffer v. State

755 N.E.2d 1193, 2001 Ind. App. LEXIS 1747, 2001 WL 1172578

• Court: Indiana Court of Appeals
• Decided: October 4, 2001
• Docket: 41A04-0105-CR-215
• Status: Published

Opinions

OPINION

HOFFMAN, Senior Judge.

Defendant-Appellant Walter Shaffer ("Shaffer") entered into a plea agreement with the State whereby Shaffer pled guilty to aiding in forgery, a Class C felony, in exchange for dismissal of several counts against him and a cap of three years on the amount of executed time he would have to serve. The trial court accepted the plea agreement and sentenced Shaffer to six years, with two years executed, and four years suspended, the first two of those years on inactive probation on work release, and then active probation for the last two years.

Shaffer appeals claiming that the sentence imposed by the trial court violated the terms of the plea agreement by providing for more than three years of executed time. More specifically, Shaffer argues that the portion of the sentence regarding work release time, even when sentenced as a condition of probation, is the same as executed time. Therefore, Shaffer concludes, he has been sentenced to four years of executed time in contravention of the plea agreement.

Sentencing decisions are within the trial court's discretion. Gibson v. State, 702 N.E.2d 707, 710 (Ind.1998). We review trial court sentencing decisions only for abuse of discretion, including decisions to increase the presumptive sentence or to run sentences consecutively due to aggravating circumstances. See Price v. State, 725 N.E.2d 82, 85 (Ind.2000).

A plea agreement is a contractual agreement between the defendant and the state. Crump v. State, 740 N.E.2d 564, 578 (Ind.Ct.App.2000). A trial court has the discretion to accept or reject a plea agreement entered into by the parties and once the trial court decides to accept the agreement, all parties are bound by its terms. Id.

The trial court's sentencing statement was as follows:

While it is definitely true that incarceration would be a hardship on your depen-dant's [sic], you do have a significant criminal history and you knew that wasn't your check to cash. Based on that and the sentencing evidence that I - heard, I found it appropriate for your sentence to be six years, executed for seven hundred thirty days and suspended for the remainder. Um [sic] with seven hundred and thirty days on probation on work release after the incarcerated time with conditions of probation.

(App.18).

Ind.Code § 35-88-2.6-8 provides in relevant part as follows:

(a) The court may, at the time of sentencing, suspend the sentence and order a person to be placed in a community corrections program as an alternative to commitment to the department of correction. The court may impose reasonable terms on the placement. (Emphasis added).

In addition, Ind.Code § 35-88-2.6-4 provides as follows:

If the court places a person in a community corrections program under this chapter, the court shall suspend the sentence for a fixed period to end not later than the date the suspended sentence expires. (Emphasis added).

Therefore, we can conclude from the plain language of the statute, that if the trial court is required to suspend the sentence in order for a person to be placed in a community corrections program, then that part of the suspended sentence served in the work release program is not executed time.¹

Additionally, Ind.Code § 85-88 2.6-5 provides that if a person placed in a work release program violates a term of that placement, the trial court may, after a hearing on that violation, change the terms of the placement, continue the placement, or "revoke the placement and commit the person to the department of correction for the remainder of the person's sentence." Ind.Code § 85-88-2.6-5. (Emphasis added). Based upon the language contained in the statute, we hold that a person is serving the executed portion of his sentence when he is committed to the Department of Correction. We further hold that the portion of a defendant's sentence involving placement on work release does not constitute a part of the executed sentence.

Applying these holdings to the facts in the present case, we conclude that the trial court did not violate the terms of the plea agreement, more specifically the cap on the executed portion of the sentence. Shaffer was ordered to serve two years of time executed, with the remainder of the sentence suspended. Two of those remaining years are to be served on work release, which is not executed time. Therefore, the trial court did not contravene the three year cap on executed time pursuant to Shaffer's plea agreement with the state.

Affirmed.

BROOK, J., concurs. VAIDIK, J., concurring in result with separate opinion.

1 . We do acknowledge, as another panel of this court did in Gardner v. State, 678 N.E.2d 398, 400 n. 3 (Ind.Ct.App.1997), that unlike "traditional" probation, a person placed in a work release program may earn credit time under I.C. 35-50-6, much like an executed sentence. Furthermore, that credit time would be "good time credit." See Purcell v. State, 721 NE2d 220, 223 (Ind.1999). However, as stated in Gardner, "[il{ [probation is merely the condition resulting from a suspended sentence], and placement into a community corrections program inherently involves the suspension of the defendant's sentence, then Gardner's sentence was suspended the day of sentencing." See Gardner, 678 NE.2d at 400. In addition, our supreme court stated in Purcell that "[wle believe the legislature's reference to a 'suspended sentence' in this context [community corrections placements] means that any requirement that the offender actually serve time incarcerated through the Department of Correction (commonly referred to as 'executed time') is suspended during the community corrections placement period." Purcell, 721 N.E.2d at 223.