Opinion
No. 33A01-1103-CR-88
09-14-2011
THOMAS A. CARPENTER, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT : BRUCE D. BRATTAIN MARIO GARCIA Brattain & Minnix Indianapolis, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT:
BRUCE D. BRATTAIN MARIO GARCIA
Brattain & Minnix
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE HENRY SUPERIOR COURT
The Honorable Michael D. Peyton, Judge
Cause No. 33D01-0706-FC-11
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE , Judge
Case Summary
Thomas A. Carpenter pled guilty by plea agreement to class D felony battery. He was sentenced to one and a half years' probation. As part of the plea agreement, he could petition the trial court to have his felony conviction converted to a class A misdemeanor if he successfully completed all the conditions of his probation. When he successfully completed his probation, he filed a petition to have his felony conviction converted to a misdemeanor. The State objected, and the trial court denied Carpenter's petition. Carpenter now appeals, claiming that the trial court misinterpreted the law regarding conversion of a conviction from a felony to a misdemeanor. We affirm.
Facts and Procedural History
On March 5, 2009, in exchange for the dismissal of three other felony charges, Carpenter pled guilty to one count of class D felony battery. The plea agreement set his sentence at one and a half years, all suspended to probation. The plea agreement also contained a provision stating:
The Defendant specifically agrees and understands that an additional term of this agreement is that he waives any and all rights to file a petition for modification of sentence to request a change of placement he may have pursuant to I.C. 35-38-1-17(b), except that the defendant may petition the Court to treat the Class D Felony as a Class A Misdemeanor treatment if the Defendant successfully completes probation with no violations.Appellant's App. at 13 (emphasis added). The agreement was signed by Carpenter, the deputy prosecutor, and Carpenter's counsel. On April 23, 2009, the trial court accepted the plea agreement, entered judgment of conviction as a class D felony, and sentenced Carpenter to one and a half years' probation. The sentencing order made no mention of converting Carpenter's class D felony to a class A misdemeanor after successful completion of probation. The April 23, 2009 probation order, signed by the trial court, defense counsel, Carpenter, and his probation officer, included the following language: "May request Class A Misdemeanor treatment if he successfully completes probation with no violations." Id. at 19.
On October 25, 2010, Carpenter's probation officer filed a petition for completion of probation, stating that Carpenter had complied with the rules and regulations of probation and should be discharged. On November 19, 2010, Carpenter filed a motion for modification of conviction to a class A misdemeanor, citing Indiana Code Sections 35-38-1-17 and 35-50-2-7. On December 2, 2010, the State filed an objection. On December 7, 2010, the trial court issued an order denying Carpenter's motion for modification and stating in part,
Indiana Code Section 35-38-1-17 addresses requests for a reduction or suspension of sentence, not a conversion of a conviction from a felony to a misdemeanor, and therefore is inapplicable in this case. We also note that in paragraph four of the plea agreement, Carpenter specifically waived his right to a modification of sentence pursuant to Indiana Code Section 35-38-1-17. Appellant's App. at 13.
The court has considered both the motion and the State's objection and has reviewed matter from the file including the Victim's Statements[] at the Sentencing Hearing in this cause and finds that the record would indicate that it is inappropriate for the Court to grant the motion under the circumstances. A review of the statute shows that the provisions of I.C. 35-50-2-7 provide that the Court "may enter a judgment of conviction of a Class A Misdemeanor". The statute, combined with the Plea Agreement in this case, does not require that [the modification] be done, but offers the defendant the opportunity to petition the Court for such treatment.Appellant's App. at 26.
We agree with Carpenter's assertion that victims' statements are not properly considered in making a determination regarding misdemeanor treatment of a felony conviction under Indiana Code Section 35-38-1-1.5. However, based on the reasoning contained herein, we find the error to be harmless.
On January 5, 2011, Carpenter filed a motion to correct error, which the trial court denied. This appeal ensued. Additional facts will be provided as necessary.
Discussion and Decision
Carpenter asserts that the trial court erred in denying his petition to convert his class D felony battery conviction to a class A misdemeanor battery conviction. Indiana Code Sections 35-50-2-7 and 35-38-1-1.5 outline the circumstances by which a defendant may have his class D felony conviction converted to a class A misdemeanor conviction. Indiana Code Section 35-50-2-7 applies to conversions occurring after conviction but before sentencing, where the trial court enters judgment on the class D felony as a class A misdemeanor. Indiana Code Section 35-38-1-1.5 applies to conversions entered after a defendant has successfully completed his sentence. Here, the trial court cited Indiana Code Section 35-50-2-7 as the basis for its decision. Carpenter argues, and the State concedes, that because he sought to have his felony converted to a misdemeanor after he successfully served his sentence, the applicable statute is Indiana Code Section 35-38-1-1.5. We note, however, that Carpenter cited Indiana Code Section 35-50-2-7 as the basis for his motion for modification; as such, he invited the trial court's error. A party may not invite error and later argue that the error supports reversal, because error invited by the complaining party is not reversible error. Booher v. State, 773 N.E.2d 814, 822 (Ind. 2002). As such, invited errors are not subject to appellate review. Gamble v. State, 831 N.E.2d 178, 184 (Ind. Ct. App. 2005), trans. denied.
Invited error notwithstanding, we observe that Indiana Code Section 35-38-1-1.5 provides in pertinent part,
(a) A court may enter judgment of conviction as a Class D felony with the express provision that the conviction will be converted to a conviction as a Class A misdemeanor within three (3) years if the person fulfills certain conditions. A court may enter a judgment of conviction as a Class D felony with the express provision that the conviction will be converted to a conviction as a Class A misdemeanor only if the person pleads guilty to a Class D felony that qualifies for consideration as a Class A misdemeanor under IC 35-50-2-7,[] and the following conditions are met:(Emphases added.)
(1) The prosecuting attorney consents.(b) For a judgment of conviction to be entered under subsection (a), the court, the prosecuting attorney, and the person must all agree to the conditions set by the court under subsection (a).
(2) The person agrees to the conditions set by the court.
(c) The court is not required to convert a judgment of conviction entered as a Class D felony to a Class A misdemeanor if, after a hearing, the court finds:
(1) the person has violated a condition set by the court under subsection (a); orHowever, the court may not convert a judgment of conviction entered as a Class D felony to a Class A misdemeanor if the person commits a new offense before the conditions set by the court under subsection (a) expire.
(2) the period that the conditions set by the court under subsection (a) are in effect expires before the person successfully completes each condition.
(d) The court shall enter judgment of conviction as a Class A misdemeanor if the person fulfills the conditions set by the court under subsection (a).
Indiana Code Section 35-50-2-7(b) limits conversion to circumstances where the defendant's offense was not domestic battery or possession of child pornography, and the defendant has neither committed a prior felony within three years nor utilized the conversion option in the past. The parties do not dispute that Carpenter's class D felony conviction qualifies for consideration as a class A misdemeanor.
Carpenter contends that the conditions for conversion were met and that, as such, the trial court was required to convert his conviction. Based on the wording of the statute, the plea agreement, and the judgment, we disagree. Where statutory language is clear and unambiguous, there is nothing to construe. Maynard v. State, 859 N.E.2d 1272, 1274 (Ind. Ct. App. 2007), trans. denied. It is a basic tenet of statutory interpretation that we will strive to avoid an interpretation that renders any part of a statute meaningless or superfluous. Hatcher v. State, 762 N.E.2d 189, 192 (Ind. Ct. App. 2002). Carpenter relies on the word "shall" contained in subsection (d) as support for his argument. See State v. Boles, 810 N.E.2d 1016, 1019 (Ind. 2004) (stating that in a statute, the term "shall" is generally construed as mandatory rather than discretionary). However, the subsections must be read together so as to render none of them meaningless. Notwithstanding its mandatory language, subsection (d) does not apply unless the conditions of subsection (a) have been met.
We conclude that subsection (d) does not apply in this case because the prosecutor did not consent to the conversion itself as required under subparagraph (a)(1). To determine the extent of a prosecutor's consent, we must examine the language of the plea agreement. See Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004) (a plea agreement is contractual in nature, and the contracting parties are the prosecutor and defendant, with the court providing its approval by accepting the parties' agreement). Although Carpenter expressly waived his right to request a modification of sentence pursuant to Indiana Code Section 35-38-1-17, he expressly did not waive his right to "petition the Court to treat the Class D Felony as a Class A Misdemeanor if [he] successfully completes probation with no violations." Appellant's App. at 13. This is not prosecutorial consent to a conversion, or anything else, for that matter. Rather, the prosecutor merely agreed that Carpenter was not waiving his right to file such a petition and thus did not relinquish the State's right to object at a later date.
Carpenter relies on Leeth v. State, 868 N.E.2d 65, 70 (Ind. Ct. App. 2007), where another panel of this Court held that a defendant was entitled to have his class D felony conviction converted to a class A misdemeanor after serving his sentence pursuant to Indiana Code Section 35-38-1-1.5(d). There, as in this case, the defendant pled guilty to a class D felony pursuant to a plea agreement. However, in Leeth, prosecutorial consent was established by the following language contained in the plea agreement: "A Misd. if successfully complete probation." Id. at 68. Thus, Leeth is distinguishable.
We also note that the judgment does not contain an express provision that Carpenter's conviction will be converted if he successfully completes probation as required by Indiana Code Section 35-38-1-1.5(a). In fact, the judgment is devoid of any reference to a conversion. The probation order says only that Carpenter "may request" a conversion. Appellant's App. at 19. Consequently, the trial court was obligated only to allow Carpenter to file the petition, which he did, and was not obligated to grant his petition for conversion.
In sum, the prosecutor kept his end of the bargain by allowing Carpenter to file a petition to convert his class D felony conviction to a class A misdemeanor conviction. The prosecutor did not agree to consent to a conversion and therefore did not break any promises by objecting to a conversion. As such, Carpenter was not the victim of any false promise, and we find no reversible error in the trial court's denial of his conversion petition. Accordingly, we affirm.
Affirmed. ROBB, C.J., dissents with separate opinion. NAJAM, J., concurs.
COURT OF APPEALS OF INDIANA
THOMAS A. CARPENTER, Appellant-Defendant,
vs.
STATE OF INDIANA, Appellee-Plaintiff.
No. 33A01-1103-CR-88
ROBB, Chief Judge, dissenting
I respectfully dissent because I read paragraph (a) of Indiana Code section 35-38-1-1.5, different from the majority.
Paragraph (a) states:
(a) A court may enter judgment of conviction as a Class D felony with the express provision that the conviction will be converted to a conviction as a Class A misdemeanor within three (3) years if the person fulfills certain conditions. A court may enter a judgment of conviction as a Class D felony with the express provision that the conviction will be converted to a conviction as a Class A misdemeanor only if the person pleads guilty to a Class D felony that qualifies for consideration as a Class A misdemeanor under IC 35-50-2-7, and the following conditions are met:Ind. Code 35-38-1-1.5(a) (emphasis added).
(1) The prosecuting attorney consents.
(2) The person agrees to the conditions set by the court.
Paragraph (a) repeats the same exact beginning of two sentences (except for the addition of an arbitrary "a" the second time) which provide for trial courts to enter a judgment that a Class D felony will be converted to a Class A misdemeanor. These two sentences part ways as the first, which I refer to as option one, allows conversion within three years if the defendant fulfills certain conditions; while the second, option two, allows conversion if the defendant pleads guilty to a qualifying felony, the prosecutor "consents," and the defendant agrees to conditions set by the trial court. In other words, the parallel construction and repeated portion of two sentences providing for conversion in paragraph (a) creates two distinct ways for a Class D felony to be converted to a Class A misdemeanor.
This reading also makes sense because it explains why sub-paragraph (a)(2) and paragraph (b), each of which expressly requires that the defendant agree to the trial court's conditions, are not repetitive. Paragraph (b) is necessary to ensure that the defendant agrees to the trial court's conditions when applying paragraph (a)'s option one, which provides for conversion within three years when a defendant fulfills certain conditions. Whereas the defendant's agreement in sub-paragraph (a)(2) applies specifically to option two, which provides for conversion if the defendant also pleads guilty to a qualifying felony and the prosecutor "consents."
In addition, this reading explains why paragraph (c) is necessary. Sub-paragraph (c)(1) states that a trial court is not required to convert a conviction if the defendant violates a condition. This would be repetitive of option one, which would not allow conversion if the defendant did not fulfill certain conditions. But sub-paragraph (c)(1) is necessary to supplement option two, under which a trial court would otherwise be required to convert a defendant's conviction if the defendant pleads guilty to a qualifying conviction, the prosecutor "consents," and the defendant merely agrees to the conditions set by the trial court.
Similarly, sub-paragraph (c)(2), which sets a rough time limit for defendants to fulfill conditions, might be highly relevant to option two which does not otherwise have a time restriction. Sub-paragraph (c)(2) is less relevant to option one, which already requires in paragraph (a) that defendants fulfill conditions within three years.
The above discussion explains why paragraph (a) creates two distinct ways for trial courts to convert Class D felony convictions to Class A misdemeanors. Carpenter falls under option one - he satisfied the trial court's conditions within three years, and so is entitled to conversion of his Class D felony conviction to a Class A misdemeanor pursuant to the trial court's provision at the time of his conviction and paragraph (d), which states that the trial court "shall enter judgment of conviction as a Class A misdemeanor if the person fulfills the conditions set by the court under subsection (a)."
But even if paragraph (a) does not create two distinct ways for a Class D felony to be converted to a Class A misdemeanor, and the second sentence is simply repetitive or further clarification of the first, Carpenter is still entitled to conversion. The majority concludes that conversion is unavailable to Carpenter because the prosecutor did not consent to conversion of his conviction, which the majority concludes is required by sub-paragraph (a)(1).
I read sub-paragraph (a)(1) such that the prosecutor need not consent to the trial court's conversion of a felony conviction to a misdemeanor. Rather, the prosecutor need only consent to the trial court setting conditions for the defendant to complete before conversion. This reading of sub-paragraph (a)(1) is consistent with sub-paragraph (a)(2), which requires the defendant "agree[] to the conditions set by the trial court." (emphasis added). An express provision of the prosecutor's consent to later convert the defendant's conviction to a Class A misdemeanor is unnecessary.
The majority highlights a portion of Carpenter's plea agreement where Carpenter expressly did not waive his right to "petition the [trial] Court to treat the Class D Felony as a Class A Misdemeanor if [Carpenter] successfully completes probation with no violations." Appellant's Appendix at 13. This statement and the prosecutor's signature of consent to the agreement as a whole constitutes prosecutorial consent to the trial court setting the conditions of Carpenter's probation. Concluding that the requirements of paragraph (a) were met and that Carpenter timely completed his probation without a violation, I would reverse and remand with instructions for the trial court to convert Carpenter's Class D felony conviction to a Class A misdemeanor.
Our supreme court's recent opinion in State v. Brunner, 947 N.E.2d 411 (Ind. 2011), is distinguishable because Brunner's guilty plea did not refer to conversion to a Class A misdemeanor at all, and no other agreement was relied on to suggest that the trial court expressly provided that Brunner's Class D felony conviction will be converted to a Class A misdemeanor.
Trial courts, prosecutors, defense counsel, and the general public would be wellserved by the General Assembly's clarification of Indiana Code section 353811.5. This includes separate descriptions of the two distinct ways for a Class D felony to be converted to a Class A misdemeanor, and a clear statement of when, and to what, a prosecutor must "consent."