Opinion
22A-CR-1866
02-13-2023
Brandon A. Conn, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant Mark K. Leeman Leeman Law Office Logansport, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65{D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Cass Circuit Court The Honorable Stephen R. Kitts, II, Judge Trial Court Cause No. 09C01-2104-F5-23
Attorney for Appellant Mark K. Leeman Leeman Law Office Logansport, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Brandon Conn appeals his sentence after he entered into a plea agreement in which he pleaded guilty to carrying a handgun without a license, as a Level 5 felony, and admitted to two probation violations. Conn presents a single issue for our review, namely, whether his sentence violates the terms of his plea agreement. We affirm.
Ind. Code § 35-47-2-1(a)(2) (2021).
Facts and Procedural History
[¶2] On April 19, 2021, the State charged Conn in cause number 09C01-2104-F5-23 ("F5-23") with five counts, including one count of carrying a handgun without a license, as a Level 5 felony (Count 1). Thereafter, on April 21, 2022, Conn entered into a plea agreement with the State. Pursuant to the terms of the agreement, Conn agreed to plead guilty to Count 1, and he admitted that he had violated the terms of his probation in two prior cause numbers: 09C01-1903-F6-121 ("F6-121") and 09C01-1903-F6-353 ("F6-353"). In exchange, the State agreed to move for the dismissal of the remaining four counts in F5-23.
Conn was charged in F5-23 in Cass Circuit Court. But he was previously convicted in Cass Superior Court for both F6-121 and F6-353. On the parties' motion, the superior court transferred jurisdiction over those cases to the circuit court so that all transgressions could be addressed at one time.
[¶3] The plea agreement contained the following provision on Conn's sentence:
The court will impose the following sentence: The Court shall determine all terms of the sentence. Any portion of the total sentence which exceeds four (4) years shall be suspended to probation, but may be imposed upon violation of probation. Under [F6-353]: 300 days reinstated to Indiana Department of Correction. Under [F6-121]: 545 days reinstated to Indiana Department of Correction.Appellant's App. Vol. 2 at 63.
[¶4] At a hearing, Conn admitted that he had possessed a firearm, that he did not have a license to carry that firearm, and that the offense was properly elevated to a Level 5 felony based on a prior felony conviction. He also admitted that his offense violated the terms of his probation in F6-121 and F6-353. The trial court accepted Conn's plea agreement. Following a sentencing hearing, the court sentenced Conn to four years in F5-23, with 730 days executed and 730 days to be served on work release. The court also revoked Conn's placement on probation in F6-353 and F6-121 and ordered that he serve consecutive terms of 545 days and 300 days in the Department of Correction, respectively. The court then ordered his sentence in F5-23 to run consecutive to his sanctions in F6-353 and F6-121. This appeal ensued.
Conn filed a motion to correct erroneous sentence in which he asserted that his executed sentence exceeded that which was allowed under the terms of the plea agreement. The court struck that motion from the record because Conn had submitted it personally even though he was represented by counsel.
Discussion and Decision
[¶5] Conn contends that the court violated the terms of his plea agreement when it sentenced him. However, before we address the merits of Conn's appeal, we first address the State's contention that Conn waived his claim. In particular, the State contends that Conn voluntarily waived his right to appeal the sentence imposed by the trial court when he entered into the plea agreement.
[¶6] It is well settled that a defendant may waive the right to appellate review of a sentence as part of a written plea agreement. See Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). And, here, Conn's plea agreement provided that he "underst[ood] that there will be no appellate review of the sentence" and that he made "a knowing and voluntary waiver of appellate review of the sentence imposed by the trial court." Appellant's App. Vol. 2 at 63. As such, the State maintains that we should dismiss Conn's appeal. Conn responds and asserts that the sentence was "contrary to what [he] bargained for" such that he did not waive his right to appeal. On this question, we agree with Conn.
[¶7] The decision to accept or reject a plea agreement is a matter left to a trial court's discretion. Allen v. State, 865 N.E.2d 686, 689 (Ind.Ct.App. 2007). Once a plea agreement is accepted by the trial court, the plea agreement, like a contract, is binding upon both parties and the trial court. Id. If the trial court accepts the plea agreement, it is strictly bound by the sentencing provisions of the plea agreement. Id. Further, the "waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the [d]efendant did not bargain for the sentence." Crider v. State, 984 N.E.2d 618, 619 (Ind. 2013).
[¶8] On appeal, Conn does not assert that his sentence is merely improper or that it is inappropriate. Rather, he asserts that his sentence is illegal because it violated the terms of his bargained-for plea agreement, which the court was bound to follow once it accepted the agreement. Because Conn asserts that his sentence is contrary to law, we hold that he did not waive his right to appeal this issue. We therefore turn to the merits of Conn's claim.
[¶9] Conn contends that the court erred when it sentenced him because his aggregate executed sentence exceeded that which was allowed under the plea agreement. Our courts have long held that plea agreements are in the nature of contracts entered 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 [S]tate, 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. (citing Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994)). As such, we will look to principles of contract law when construing plea agreements to determine what is reasonably due to the defendant. See id.
[¶10] The primary goal of contract interpretation is to give effect to the parties' intent. Griffin v. State, 756 N.E.2d 572, 574 (Ind.Ct.App. 2001), 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. Rather, we will merely 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. See, e.g., Time Warner Entm't Co. v. Whiteman, 802 N.E.2d 886, 894 (Ind. 2004).
[¶11] Here, Conn pleaded guilty to the charge in F5-23 and admitted to probation violations in F6-353 and F6-121 in a single plea agreement. The provision relevant to sentencing states as follows:
The Court will impose the following sentence: The Court shall determine all terms of the sentence. Any portion of the total sentence which exceeds four (4) years shall be suspended to probation, but may be imposed upon violation of probation. Under [F6-353]: 300 days reinstated to Indiana Department of Correction. Under [F6-121]: 545 days reinstated to Indiana Department of Correction. The sentences shall be served consecutive to each other.Appellant's App. Vol. 2 at 63. The court sentenced Conn to four years in F5-23, with 730 days executed in the Department of Correction and 730 on community corrections. And the court imposed a sanction of 545 days executed in F6-121 and 300 days executed in F6-353 as a result of his probation violations.
[¶12] On appeal, Conn contends that the court erred when it sentenced him because, according to him, the plea agreement required any executed portion of the total sentence across all three cause numbers that exceeded four years to be suspended to probation. But he contends that he received a "total executed sentence that exceeded well over six years." Appellant's Br. at 9 (emphasis in original). In response, the State asserts that "the four-year executed-time sentencing cap applied to his conviction under cause number F5-23, and not to the agreed-upon sanctions for the probation violations in F6-353 and F6-121." Appellee's Br. at 9. We must agree with the State.
[¶13] The sentencing provision comes directly after the provision in which Conn agreed to plead guilty to Count 1 in F5-23 and the provision in which the State agreed to seek the dismissal of the other two counts. The sentencing provision at issue then begins with: "[t]he court shall impose the following sentence." It is clear that that "sentence" was meant to apply only to F5-23. Indeed, the plea agreement uses the word "sentence" in the singular in the first two clauses of that paragraph, including the clause that limits the executed portion of his sentence to four years. That clearly demonstrates that those clauses were only meant to apply to one cause number-F5-23-and not all three cause numbers.
[¶14] It is only after the terms for the sentence in F5-23 are discussed that the plea agreement outlines the sanctions to be imposed for the probation violations. And each sanction is outlined in its own, separate clause within the provision of the plea agreement. Then, following the individual sentence for F5-23 and sanctions for F6-131 and F6-353, the plea agreement uses the word "sentences" in the plural for the first time to refer to the penalties for all three cause numbers. Finally, while not dispositive, we note that in a colloquy with the court, the State asserted that "there's a cap of four (4) years" in F5-23, and Conn did not dispute or otherwise challenge the State's assessment. Tr. at 6.
[¶15] Still, Conn focuses on the use of the phrase "total sentence" in the plea agreement to support his assertion that the four-year executed cap applies to the aggregate time he can serve in the Department of Correction across all three cause numbers. Specifically, he asserts that there was "no ambiguity" and that the phrase "total sentence" applied "to the aggregate sentence." Appellant's Br. at 10. We disagree. The plea agreement provided that "[a]ny portion of the total sentence which exceeds four (4) years shall be suspended to probation[.]" Appellant's App. Vol. 2 at 63. It is clear that the use of the phrase "total sentence," which is again in the singular, simply referred to the total of the executed and suspended time in F5-23. It did not apply to multiple cause numbers.
[¶16] We acknowledge that this plea agreement was not well drafted. But we nevertheless hold that the sentencing provision is not ambiguous and that the plain meaning indicates that the four-year sentencing cap was only meant to apply to the sentence imposed in F5-23. And because the court sentenced Conn to four years in that cause number, the sentence does not violate the terms of the plea agreement.
Conclusion
[¶17] The plain language of the plea agreement is unambiguous, and the court sentenced Conn within the terms of that agreement. We therefore affirm Conn's sentence.
[¶18] Affirmed.
Brown, J., and Weissmann, J., concur.