MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Oct 29 2015, 8:37 am
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 ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Jonathan O. Chenoweth Justin F. Roebel
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron Brubaker, October 29, 2015
Appellant-Petitioner, Court of Appeals Case No.
43A05-1507-PC-769
v. Appeal from the Kosciusko
Superior Court
State of Indiana, The Honorable David C. Cates,
Appellee-Respondent. Judge
Trial Court Cause No.
43D01-1301-FD-56
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 1 of 8
[1] In 2013, Appellee-Respondent the State of Indiana (“the State”) charged
Appellant-Petitioner Aaron Brubaker with four Class D felonies: resisting law
enforcement, auto theft, and two counts of theft. The State also charged
Brubaker with being a habitual offender. The parties entered into a plea
agreement by which the State agreed to drop the habitual offender charge and
Brubaker pled guilty to the remaining charges. Additionally, the executed
portion of Brubaker’s sentence was to be capped at five years. The trial court
accepted Brubaker’s plea and sentenced him to a term of five years.
[2] Brubaker subsequently filed a petition for post-conviction relief (“PCR”) in
which he claimed that the five-year sentence imposed by the trial court was
illegal because his crimes constituted a single episode of criminal conduct and,
therefore, the maximum aggregate sentence allowed for his four convictions
was four years. The State argues that even if the sentence is illegal, Brubaker
agreed to the illegal sentence in his plea agreement and so is bound by that
agreement. We affirm.
Facts and Procedural History
[3] On January 23, 2013, Brubaker was charged with Class D felony resisting law
enforcement, Class D felony auto theft, and two counts of Class D felony theft.
He was also alleged to be a habitual offender. (App. 1) The parties entered into
a plea agreement by which the State agreed to drop the habitual offender charge
and Brubaker pled guilty to the remaining charges. (App. 97) The relevant
portions of the plea agreement read as follows:
Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 2 of 8
[T]here is no limitation upon the Court’s authority to impose any
sentence or dispositional alternative authorized under the law…;
and that the Court may enter any lawful sentence whether
presumptively or alternatively provided, and whether by way of
mitigation or aggravation. The State of Indiana does agree that
the initial executed sentence will not exceed five (5) years (total
after consecutive sentencing on each count). Each count’s
sentence shall run consecutive….The Court may, however,
impose a longer sentence of imprisonment either by providing for
presumptive sentence or by way of aggravation but that any such
sentence so imposed which exceeds the number months which
may be imposed under this agreement as an original executed
prison term shall be suspended by the Court….
****
The Defendant knowingly, intelligently, and voluntarily waives
his right to appeal any sentence imposed by the trial court that is
within the range set forth in this plea agreement, and waives his
right to have the Court of Appeals review his sentence under
Indiana Appellate Rule 7(B).
Appellant’s App. p. 97-98.
[4] On October 24, 2013, the trial court accepted the plea agreement and sentenced
Brubaker to one-and-a-half year consecutive terms on each conviction, resulting
in an aggregate six-year term. (App. 7) The trial court later amended the
judgment to shorten the sentence on one of Brubaker’s theft convictions to six
months, reducing the aggregate sentence to five years. (App. 8) On June 11,
2014, Brubaker filed a PCR petition. (App. 9) The parties then filed competing
motions for summary judgment. (App. 10-11) On June 8, 2015, the post-
conviction court entered an order denying Brubaker’s PCR petition. Brubaker
appeals.
Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 3 of 8
Discussion and Decision
[5] Pursuant to Post-Conviction Rule 1(4)(g)1, the post-conviction court granted the
State’s motion for summary disposition. “An appellate court reviews the grant
of a motion for summary disposition in post-conviction proceedings on appeal
in the same way as a motion for summary judgment.” Norris v. State, 896
N.E.2d 1149, 1151 (Ind. 2008) (citing Allen v. State, 791 N.E.2d 748, 752 (Ind.
Ct. App. 2003), trans. denied). “Thus summary disposition, like summary
judgment, is a matter for appellate de novo determination when the
determinative issue is a matter of law, not fact.” Id. (citing Burnside v. State, 858
N.E.2d 232, 237 (Ind. Ct. App. 2006)).
[6] Brubaker argues that his five-year sentence violates the statutory limitation on
consecutive sentences for crimes arising from a single episode of criminal
conduct under Indiana Code section 35-50-1-2(c) (2013), which provided that
except for crimes of violence, the total of the consecutive terms of
imprisonment…to which the defendant is sentenced for felony
convictions arising out of an episode of criminal conduct shall
not exceed the advisory sentence for a felony which is one (1)
class of felony higher than the most serious of the felonies for
which the person has been convicted.
1
“The court may grant a motion by either party for summary disposition of the petition when it appears from
the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits
submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.” P-C.R. 1(4)(g).
Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 4 of 8
The State acknowledged at the post-conviction court that, pursuant to this
statute, the maximum sentence Brubaker could have received for the four Class
D felony convictions was four years2 (the advisory term for a Class C felony)
but argues that Brubaker consented to the unlawful sentence in his plea
agreement and so he cannot now dispute that sentence. (App. 103)
[7] In Lee v. State, the State charged Lee with Class C felony robbery and alleged
that he was a habitual offender. 816 N.E.2d 35, 37 (Ind. 2004). Under the
terms of a plea agreement, Lee pled guilty to robbery in exchange for the State’s
dismissal of the habitual offender allegation. The trial court sentenced Lee,
pursuant to the terms of the plea, to a term of eight years imprisonment to run
consecutively to a three-year sentence Lee was serving for an unrelated theft
conviction. At the time of sentencing, the trial court lacked statutory authority
to order the sentences to be served concurrently. Id. Nonetheless, the Indiana
Supreme Court upheld the illegal sentence.
The record shows that the evidence against Lee on the charge of
robbery was overwhelming. By agreeing to plead guilty to the
charge in exchange for the State dismissing an habitual offender
allegation, Lee reduced his penal exposure by thirty years. See
Ind. Code 35-50-2-8(e)….
Under some circumstances, the appropriate remedy to address an
illegal sentence like the one here is to sever the illegal sentencing
provision from the plea agreement, and remand the cause to the
2
On appeal, the State claims that it only accepted Brubaker’s allegations that his offenses constituted a
“single episode” of criminal conduct under Indiana Code section 35-50-1-2(c) for purposes of obtaining a
summary disposition at the post-conviction court and that it does not concede the issue.
Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 5 of 8
trial court with instructions to enter an order running the
sentences concurrently. However Lee is entitled to no such
relief. 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). As this Court has more recently
explained: “[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).
Id. at 39 (emphasis added, footnote omitted); see also Crider v. State, 984 N.E.2d
618, 623 (Ind. 2013) (“[I]n Indiana, a defendant can waive his right to appeal
an illegal sentence….[W]here a plea agreement provides for the illegality later
challenged, a valid waiver contained therein will be upheld.”); see also Games v.
State, 743 N.E.2d 1132, 1135 (Ind. 2001) (“[A] defendant with adequate counsel
who enters a plea agreement to achieve an advantageous position must keep the
bargain. Once the defendant bargains for a reduced charge, he cannot then
challenge the sentence on double jeopardy grounds.”); see also Stites v. State, 829
N.E.2d 527 (Ind. 2005) (concluding that although the trial court lacked
statutory authority to order consecutive sentences under the circumstances, it
had such authority by the terms of a plea agreement, and the defendant could
not be heard to complain because she had benefited from that agreement).
[8] Brubaker acknowledges that he received a benefit by the State’s agreement to
drop the habitual offender charge. Brubaker also acknowledges that “when a
Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 6 of 8
defendant explicitly agrees to a particular sentence or a specific method of
imposition of sentences, whether or not the sentence or method is authorized by
the law, he cannot later appeal such sentence on the ground that it is illegal.”
Appellant’s App. p. 113 (quoting Crider, 984 N.E.2d at 625). However,
Brubaker argues that his plea agreement “did not call for an illegal sentence; it
called for the trial court to impose ‘any lawful sentence’ of no more than 5
years.” Appellant’s App. p. 114.
[9] Brubaker essentially argues that he did not agree to the illegal sentence imposed
by the trial court. We disagree. The plea agreement which Brubaker agreed to
explicitly authorized the trial court to impose a sentence in excess of four years.
Specifically, the agreement provided that “the initial executed sentence will not
exceed five (5) years (total after consecutive sentencing on each count),” and
that “The Court may, however, impose a longer sentence of imprisonment
either by providing for presumptive sentence or by way of aggravation.”
Appellant’s App. p. 97-98. Brubaker “waive[d] his right to appeal any sentence
imposed by the trial court that is within the range set forth in this plea
agreement.” Appellant’s App. p. 98. The only logical reading of this
agreement is that Brubaker consented to receiving a sentence potentially greater
than four years. Therefore, we conclude that Brubaker consented to the
unlawful sentence and so has waived his right to appeal his sentence on that
basis.
[10] The judgment of the post-conviction court is affirmed.
Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 7 of 8
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 8 of 8