FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN D. FIEREK GREGORY F. ZOELLER
Voyles, Zahn, Paul, Hogan & Merriman Attorney General of Indiana
Indiapolis, Indiana
AARON J. SPOLARICH
Deputy Attorney General
FILED
Indianapolis, Indiana
Oct 09 2012, 9:18 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
TRAVIS KOONTZ, )
)
Appellant-Defendant, )
)
vs. ) No. 29A05-1202-CR-77
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Gail Bardach, Judge
Cause No. 29D06-1101-CM-669
October 9, 2012
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Travis Koontz appeals the trial court’s denial of his motion to correct erroneous
sentence. He raises one issue for our review, which we restate as whether the trial court
erred in denying his motion when his sentence is, on its face, erroneous for exceeding
statutory authority. Concluding that Koontz waived any error in his sentence by consenting
to the sentence as part of a plea agreement, we affirm.
Facts and Procedural History
The State charged Koontz with driving while suspended, a Class A misdemeanor,
false informing, a Class B misdemeanor, operating a vehicle while intoxicated, a Class C
misdemeanor, and operating a vehicle with an alcohol concentration equivalent (“ACE”) of
.08 or more, a Class C misdemeanor. The State and Koontz entered into a plea agreement
whereby Koontz agreed to plead guilty to driving while suspended and operating with an
ACE of .08 or more, and the State agreed to dismiss the remaining charges. In addition, the
parties agreed to the following sentence: 365 days in jail with eighteen days to be executed
and 365 days of probation for the driving while suspended conviction, and sixty days in jail
with eighteen days to be executed and 365 days of probation for the operating a vehicle with
an ACE of .08 or more conviction, with the sentences to run concurrently. On April 4, 2011,
the trial court accepted the plea agreement and sentenced Koontz pursuant to its terms.
Koontz signed the plea agreement and acknowledged in open court during his guilty plea
hearing that he understood the terms of the plea agreement and wished the court to accept
them and sentence him accordingly. Koontz also signed the resulting order of probation,
2
indicating that he understood he would be placed under the supervision of the county
probation department for 365 days.
In July 2011, the State filed the first of three informations of violation of probation.
The first information was dismissed; a second was filed in December 2011 and a third was
filed in January 2012. In February 2012, before fact-finding hearings on the second or third
informations could be held, Koontz filed a motion to correct erroneous sentence. In his
motion, he alleged his sentence was erroneous on its face because by statute, the combined
term of imprisonment and period of probation for a misdemeanor cannot exceed one year and
his sentence exceeds that limitation. Following a hearing, the trial court denied Koontz’s
motion, and at the same hearing, found he had violated his probation and ordered him to
serve 270 days in jail. Koontz now appeals the trial court’s denial of his motion to correct
erroneous sentence.1
Discussion and Decision
I. Standard of Review
Indiana Code section 35-38-1-15 provides that an erroneous sentence is not void but
shall be corrected, providing “prompt, direct access to an uncomplicated legal process for
correcting the occasional erroneous or illegal sentence.” Davis v. State, 937 N.E.2d 8, 10
(Ind. Ct. App. 2010), trans. denied. However, the process is only available to correct a
sentence that is erroneous on its face. Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008).
1
The judgment and sentence for the probation violation has been stayed by order of this court pending
resolution of this appeal. See Appellant’s Appendix at 93 (March 2, 2012 Order).
3
In reviewing a trial court’s decision on a motion to correct erroneous sentence, we
defer to the trial court’s factual findings and review the decision for an abuse of discretion.
Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An abuse of discretion occurs
when the trial court’s decision is against the logic and effect of the facts and circumstances
before it. Id.
II. Erroneous Sentence
Koontz pleaded guilty to a Class A misdemeanor, for which the maximum sentence is
one year, and a Class B misdemeanor, for which the maximum sentence is 180 days. See
Ind. Code § 35-50-3-2 and -3. He was sentenced to one year with eighteen days executed
and 347 days suspended, plus 365 days of probation for the Class A misdemeanor; and sixty
days with eighteen days executed, forty-two days suspended plus 365 days of probation for
the Class B misdemeanor, to be served concurrently. Indiana Code section 35-50-3-1
provides, in pertinent part:
(a) The court may suspend any part of a sentence for a misdemeanor.
(b) Except as provided in subsection (c), whenever the court suspends in whole
or in part a sentence for a Class A, Class B, or Class C misdemeanor, it may
place the person on probation under IC 35-38-2 for a fixed period of not more
than one (1) year, notwithstanding the maximum term of imprisonment for the
misdemeanor set forth in sections 2 through 4 of this chapter. However, the
combined term of imprisonment and probation for a misdemeanor may not
exceed one (1) year.
4
Koontz contends that because his term of imprisonment2 plus his period of probation as
stated in the sentencing order exceeds one year, his sentence is erroneous on its face and must
be corrected.
The State first responds that Koontz has waived any error in his sentence by agreeing
to a plea from which he benefitted. Koontz counters that the State has waived its waiver
argument by failing to raise it in the trial court. During the hearing on Koontz’s motion,
however, the State began: “The State would first argue that due to the fact that the
Defendant did sign the plea agreement that that counteracts any erroneous sentence with
regards to probation.” Transcript at 31. Although this is not an extensive argument, it clearly
indicates the State’s reliance on Koontz’s agreeing to the sentence and that is sufficient for
the State to avoid waiver of its argument.
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. Further, if the trial court accepts the plea agreement, it is strictly
bound by the sentencing provisions of the plea agreement and is precluded from imposing
2
Koontz cites Jennings v. State, 956 N.E.2d 203 (Ind. Ct. App. 2011), trans. granted, in which a panel
of this court held that, for purposes of Indiana Code section 35-50-3-1(b), the “term of imprisonment” includes
both the executed and the suspended portions of a sentence. Id. at 208. Our supreme court granted transfer in
Jennings after briefing in this case was complete but has not yet issued an opinion. Regardless of the outcome
of the transfer proceedings, Jennings is not directly applicable here. In Jennings, the defendant was convicted
following a jury trial of a Class B misdemeanor and sentenced at the trial court’s discretion to 180 days, with
thirty days executed and 150 days suspended, plus 360 days of probation. 956 N.E.2d at 205. The case was
remanded to the trial court to impose a period of probation not to exceed 185 days so the 180 day sentence plus
probation would not exceed one year. Id. at 208. However, given our resolution below, the difference between
the defendant in Jennings having a trial and Koontz pleading guilty is dispositive.
5
any sentence other than that required by the agreement. Id.; see also Ind. Code § 35-35-3-
3(e). Our supreme court has held that “a defendant may not enter a plea agreement calling
for an illegal sentence, benefit from that sentence, and then later complain that it was an
illegal sentence.” Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987). The court has further
explained as follows:
[D]efendants who plead guilty to achieve favorable outcomes give up a
plethora of substantive claims and procedural rights, such as challenges to
convictions that would otherwise constitute double jeopardy. Striking a
favorable bargain including a consecutive sentence the court might otherwise
not have the ability to impose falls within this category.
Davis v. State, 771 N.E.2d 647, 649 n.4 (Ind. 2002) (citation and quotation omitted).
Whether a defendant has benefitted from a plea agreement with an illegal sentencing
provision generally is measured by whether the plea reduced the defendant’s penal exposure.
Hacker v. State, 906 N.E.2d 924, 927 (Ind. Ct. App. 2009), trans. denied.
Here, Koontz signed the fixed plea agreement that specifically set forth the sentence to
be imposed, which included a combined term of incarceration and probation longer than that
allowed by Indiana Code section 35-50-3-1(b). The trial court was bound by the terms of the
plea agreement negotiated by Koontz and the State. Koontz received a benefit from the plea
in that the Class B and one of the Class C misdemeanor offenses charged against him were
dismissed, and he was ordered to serve just eighteen days of a one-year sentence, with one
year on probation. We acknowledge that one of the charges the State dismissed was
operating while intoxicated, and Koontz could not have been convicted of that offense as
well as operating with an ACE of .08 or more based on the same evidence. However, being
6
convicted of the per se offense rather than operating while intoxicated reduces Koontz’s
exposure if he were to be arrested again for operating while intoxicated. See Ind. Code § 9-
30-5-3 (stating that a person violating the operating while intoxicated or operating with an
ACE of .08 or more commits a Class D felony if the person has a previous conviction of
operating while intoxicated within five years). Moreover, had the trial court had discretion in
sentencing Koontz, he could have received a sentence of up to one year imprisonment, and by
virtue of the plea, he was to serve only eighteen days. The dissent believes that “where the
offenses are misdemeanors or minor felonies,” slip op. at 3, the potential for abuse is too
great and the benefit too small to justify allowing an illegal sentence to stand because it was
the result of a plea bargain. We do not believe it is our place to categorically declare the
supreme court’s position inapplicable to misdemeanors. We might agree if Koontz had been
charged with felonies and misdemeanors that dismissal of a misdemeanor and avoidance of
the penal consequences thereof offered him no relative benefit, or if, because of double
jeopardy, he could not have been convicted at all. But Koontz was charged only with
misdemeanors, and he did receive a benefit from the plea dismissing two of the charges.
Only now that he has violated his probation does Koontz challenge his sentence claiming that
it is illegal. The trial court did not err by denying Koontz’s motion. See, e.g., Lee v. State,
816 N.E.2d 35, 40 (Ind. 2004) (defendant serving consecutive sentences provided for by plea
agreement but otherwise not authorized by statute was entitled to no relief).
7
Conclusion
The trial court did not abuse its discretion in denying Koontz’s motion to correct
erroneous sentence because Koontz consented to the sentence as part of a plea agreement.
The judgment of the trial court is affirmed.
Affirmed.
BRADFORD, J., concurs.
BAKER, J., dissents with opinion.
8
IN THE
COURT OF APPEALS OF INDIANA
TRAVIS KOONTZ, )
)
Appellant-Defendant, )
)
vs. ) No. 29A05-1202-CR-77
)
STATE OF INDIANA )
)
Appellee-Plaintiff. )
BAKER, Judge, dissenting,
I respectfully dissent. I acknowledge that our Supreme Court has made it clear that
“[a] defendant ‘may not enter a plea agreement calling for an illegal sentence, benefit from
that sentence, and then later complain that it was an illegal sentence.’” Lee v. State, 816
N.E.2d 35, 40 (Ind. 2004) (quoting Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987)).
Nevertheless, while this may be acceptable for someone who reaps a “significant
benefit” such as avoiding a thirty-year sentence or the death penalty, such a benefit was not
gained by Koontz in this case. Stites v. State, 829 N.E.2d 527, 529 (Ind. 2005) (reasoning
that “Stites received a significant benefit from her plea agreement [when] she received less
than the maximum possible sentence of sixty years, and the State agreed not to seek the death
penalty”); see also Lee v. State, 816 N.E.2d 35, 37 (Ind. 2004) (holding that Lee could not
complain of illegal consecutive sentences that were part of a plea agreement in which the
9
State dismissed the habitual offender allegation, allowing Lee to avoid an additional thirty-
year term); Games v. State, 743 N.E.2d 1132, 1134-35 (Ind. 2001) (noting that “Games
bargained for a sentence between sixty and 118 years in order to avoid the death penalty”
and, accordingly, had “waived his right to challenge his sentence on double jeopardy
grounds”); Collins, 509 N.E.2d at 832-33 (observing that Collins agreed to plead to guilty to
voluntary manslaughter, received credit for time served, and had his remaining time
suspended and, therefore, could not challenge the conviction because the suspended portion
of his sentence was illegal).
Indeed, even in Davis v. State, a case in which the defendant seemed to reap the least
benefit, Davis still pleaded guilty to class C felony robbery. 771 N.E.2d 647, 647-48 (Ind.
2002). In exchange, Davis was sentenced to five years, with three years suspended and two
years to run consecutively to a sentence imposed in a separate proceeding. Id. at 648.
By contrast, in this case, Koontz pleaded guilty to two misdemeanors. Although the
State dismissed two of the charges, Koontz did not have the benefit of having two charges
dismissed. More particularly, had the case proceeded to trial, Koontz could not have been
convicted of operating a vehicle while intoxicated and operating a vehicle with an ACE of
.08 or more. Hornback v. State, 693 N.E.2d 81, 85 (Ind. Ct. App. 1998). Thus, the practical
effect is that only the charge of class B misdemeanor false informing was dismissed pursuant
to the plea agreement. Nevertheless, Koontz was exposed to a combined term of
imprisonment and probation that exceeded statutory limits. Accordingly, in cases where the
offenses are misdemeanors or minor felonies, the potential for abuse could be too great to
10
justify permitting the imposition of illegal sentences through plea agreements. Therefore, I
would reverse.
11
Travis Koontz v. State of Indiana
Combined Opinion