State v. Cozart

878 N.E.2d 395, 2007 Ind. App. LEXIS 2936, 2007 WL 4482618
CourtIndiana Court of Appeals
DecidedDecember 26, 2007
Docket22A01-0704-PC-183
StatusPublished
Cited by2 cases

This text of 878 N.E.2d 395 (State v. Cozart) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cozart, 878 N.E.2d 395, 2007 Ind. App. LEXIS 2936, 2007 WL 4482618 (Ind. Ct. App. 2007).

Opinions

OPINION

BAKER, Chief Judge.

When Michael Cozart agreed to plead guilty, he did not understand that the trial court was without discretion to suspend any of the minimum sentence he faced because of his prior felony convictions. After Cozart fully understood the trial court’s sentencing authority, he moved to withdraw his guilty plea, but the trial court refused to permit the withdrawal. On post-conviction, the court found that Co-zart had not knowingly and voluntarily pleaded guilty because the trial court had not adequately advised him regarding the potential length of the sentence it was about to impose.

Appellant-respondent State of Indiana appeals from the post-conviction court’s order granting appellee-petitioner Michael A. Cozart’s petition for post-conviction relief. The State argues that the trial court was not required to advise Cozart regarding the effect his prior felony convictions would have on its authority to suspend any portion of the minimum sentence he faced following a guilty plea to a class A felony. Finding that Cozart did not plead guilty knowingly and voluntarily, we affirm the judgment of the post-conviction court.

FACTS

On November 7, 2003, the State charged Cozart with class A felony conspiracy to deal cocaine, class D felony possession of a controlled substance, class D felony dealing in a counterfeit substance, class D felony maintaining a common nuisance, class D felony possession of marijuana, and class A felony dealing in cocaine. On July 26, 2004, Cozart agreed to plead guilty to class A felony conspiracy to deal cocaine in exchange for the State’s agreement to dismiss the remaining charges. The plea agreement left sentencing “open” to the trial court’s discretion. Appellant’s App. p. 20.

At the guilty plea hearing, the trial court advised Cozart that it could impose a sentence from twenty to fifty years for the class A felony. However, neither the trial court nor Cozart’s attorney advised him that because of Cozart’s prior unrelated felony convictions, Cozart faced a minimum executed sentence of twenty years. Although Cozart understood that the minimum sentence he faced was twenty years, he believed that the trial court had the authority to suspend part or all of that sentence. After Cozart and his attorney realized that their interpretation of “open sentencing” was different from the State’s and that he faced a minimum executed sentence of twenty years, Cozart moved to withdraw from the guilty plea at the September 20, 2004, sentencing hearing. The trial court denied Cozart’s motion and imposed a sentence of thirty years with ten years suspended.

On August 24, 2006, Cozart filed a petition for post-conviction relief, arguing that he is entitled to relief because he was not fully advised by his attorney or the trial [397]*397court about the minimum executed sentence that he faced.1 Following a hearing, the post-conviction court granted Cozart’s petition on February 9, 2007, finding, in pertinent part, as follows:

5. The record discloses that Defense Counsel and the Prosecuting Attorney disagreed as to the meaning of the term “open sentencing” after the Defendant’s plea of guilty ..., but prior to the time the Defendant was sentenced.
6. The record discloses that prior to Defendant entering his plea of guilty, the Court did not advise the Defendant of the Court’s inability to suspend that part of any sentence imposed by the Court which was less than the minimum sentence....
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9. At the sentencing hearing Defense Counsel, Stephen Beardsley!,] advised the Court that he had advised the Defendant (prior to entering his plea of guilty) that upon the Defendant’s plea of guilty that the Court would have discretion to suspend all or part of any sentence imposed by the Court, as it was an “open sentencing”....
10. At the sentencing hearing ... the Defendant and Defense counsel claimed they both misunderstood the Court’s sentencing options and requested that the Defendant be allowed to withdraw his plea of guilty. The Court denied such motion.
11. That the Defendant was not advised by Counsel and Defendant did not understand when he agreed to accept the plea agreement that the Court had no authority to suspend any part of the sentence which was less than the minimum sentence of twenty (20) years for a class A felony because of defendant’s prior felony convictions.
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CONCLUSIONS OF LAW
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D. In order to properly accept a plea of guilty from a criminal defendant, the court must advise the defendant of the minimum possible sentence which could be imposed upon him as a result of a plea of guilty, including the fact that the court’s discretion to suspend all or any portion of the sentence imposed is precluded if the conditions of I.C. 35-50-2-2(a) and (b) apply. A guilty plea entered before a defendant is advised of these facts is not knowingly, intelligently, and voluntarily entered [into] and must be vacated.
E. Since the record of the plea change hearing in this case does not affirmatively disclose that the Court adequately advised the Defendant of the minimum possible sentence that could be imposed upon him if his plea of guilty was accepted by the Court, then based on the findings of the Court, Defendant’s plea of guilty was not knowingly, intelligently, and voluntarily entered into and such cannot be presumed from a silent record.
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ORDER
1. IT IS, THEREFORE, ORDERED and ADJUDGED that Defendant’s Verified Petition for Post[-]Conviction Relief [398]*398is granted and Defendant’s plea of guilty ... and the Judgment of Conviction entered by the Court ... is hereby vacated, and the Defendant’s conviction ... is set aside.
2. IT IS FURTHER ORDERED and ADJUDGED that Counts II through VI, inclusive, of the Information filed in this case ... are hereby reinstated.

Appellant’s App. p. 32-36 (emphasis added) (internal citations omitted). The State now appeals.

DISCUSSION AND DECISION

In reviewing a grant of post-conviction relief, we will reverse only upon a showing of clear error, which leaves us with a definite and firm conviction that a mistake has been made. State v. Anderson, 751 N.E.2d 714, 716 (Ind.Ct.App.2001). The post-conviction court acts as the sole judge of the evidence and the credibility of witnesses. Id.

The parties direct us to Indiana Code section 35 — 35—1—2(a)(3), which provides that before accepting a guilty plea, the trial court must ensure that the defendant

has been informed of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences.

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Related

State v. Cozart
897 N.E.2d 478 (Indiana Supreme Court, 2008)
State v. Cozart
878 N.E.2d 395 (Indiana Court of Appeals, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
878 N.E.2d 395, 2007 Ind. App. LEXIS 2936, 2007 WL 4482618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cozart-indctapp-2007.