Dunn v. State

MAY, Judge.

[1] Bobby Dunn and the State entered into a plea agreement, which the court accepted. Then on the morning of his sentencing hearing, the State moved to withdraw the plea agreement. The court granted the State’s motion.

[2] We reverse and remand for sentencing.

Facts and Procedural History

[3] The State charged Dunn with Class D felony theft,1 Class D felony attempted theft,2 and two counts of Class C felony forgery.3 Because Dunn had charges for which he was to turn himself in to federal authorities, he requested his court appearance be expedited. The court rescheduled Dunn’s hearing before his surrender date to the federal authorities.

[4] The State, represented in court by Deputy Prosecutor Jeremy Teipen, and Dunn presented a plea agreement to the court whereby Dunn would plead guilty to theft and the State would dismiss all other pending charges. The agreement was *1075signed for the State by Deputy Prosecutor Kevin E. Kelly, who also signed an affidavit at the end of the agreement indicating he had

informed the victim and/or the victim’s representative of the fact that the State has entered into discussion with defense counsel concerning this agreement and of the contents of the State’s recommendation, if any; and, that [Deputy Prosecutor Kelly] will notify the victim and his/her representative of the opportunity to be present when the Court considers the recommendation.

(App. at 26.) On the State’s recommendation, the court accepted the plea and found Dunn guilty of theft.

[5] On the day of sentencing, the State, by Deputy Prosecutor Timothy Baldwin, moved to withdraw the plea agreement due to what he characterized as a “mistake in fact,” (Tr. at 23), which was that the State had not intended to offer a plea agreement. Dunn objected, asserting the only “mistake” was that the State agents had not communicated well with one another and had differing opinions as to whether a plea should have been offered.

[6] Deputy Prosecutor Baldwin asserted this “mistake” happened because expediting the case at Dunn’s request caused the plea to be entered while Deputy Prosecutor Baldwin was not in the office. Deputy Prosecutor Baldwin admitted, however, that the plea terms were “offered by [his] supervisor Mr. Kelly.” (Id. at 42.) Deputy Prosecutor Baldwin also asserted that, contrary to Deputy Prosecutor Kelly’s affidavit, the victim was not notified of the plea or the hearings because neither he nor anyone from his office had had any contact with the victim regarding the plea.

[7] The court found, “While it is true that Mr. Kelly is the supervisor and does have the authority to dispose of Mr. Baldwin’s eases, [sic] Even without perhaps Mr. Baldwin’s consent, there still is the issue of the notification of the victim.” (Id. at 46.) Based on the State’s assertion the victim’s constitutional rights4 had not been protected, the court granted the State’s motion to withdraw the plea.

Discussion and Decision

[8] The trial court erred by granting the State’s motion to withdraw the plea agreement after the court had accepted it. We review for an abuse of discretion a decision to permit withdrawal of a plea agreement. Badger v. State, 637 N.E.2d 800, 802 (Ind.1994). Reversal for abuse of discretion is appropriate only when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh’g denied.

Whether to accept or reject a proffered plea agreement is within the discretion of the trial court. Campbell v. State, 17 N.E.3d 1021, 1023 (Ind.Ct.App.2014). Once accepted, however, “If the court accepts a plea agreement, it shall be bound by its terms.” I.C. § 35-35-3-3(e). In numerous cases, this Court and our Indiana Supreme Court have held that the binding nature of a court-accepted plea agreement prevents trial courts from revoking such agreements and vacating previously-entered judg*1076ments of conviction-even if the defendant has not yet been sentenced.

Stone v. State, 27 N.E.3d 341, 343 (Ind.Ct.App.2015).

[9] The State and Dunn reached a plea agreement and presented it to the court. The trial court accepted it on May 16, 2014, when it found Dunn guilty and scheduled the sentencing hearing. While Dunn had no right to be offered a plea agreement and the State could have withdrawn it at any point prior to acceptance by the court, once it was accepted, the court could not revoke or vacate it. See Epperson v. State, 530 N.E.2d 743, 745 (Ind.Ct.App.1988) (plea agreements are similar to contracts and important due process rights of the defendant are involved; thus, “plea negotiations must accord a defendant requisite fairness and be attended by adequate safeguards which insure the defendant what is reasonably due in the circumstances”).

[10] We have, at times, held trial courts have the discretion to revoke plea agreements after judgment was entered. See, e.g., Beech v. State, 702 N.E.2d 1132 (Ind.Ct.App.1998) (plea revoked when defendant stated he was innocent during the sentencing hearing), and Campbell v. State, 17 N.E.3d 1021 (Ind.Ct.App.2014) (plea agreement required defendant to testify, but he did not). Dunn has not asserted he is innocent of the charges, nor has he violated some express term of the agreement. Thus, these exceptions do not apply.

[11] To the extent the trial court permitted withdrawal based on Deputy Prosecutor Baldwin’s assertion at the sentencing hearing that the victim had not been notified, any error in the trial court’s original acceptance of the plea was invited by the State, as Deputy Prosecutor Kelly’s affidavit represented at the guilty plea hearing that the State had, in fact, notified the victim. (See Appellant’s App. at 26 (affidavit stating deputy prosecutor had informed victim of plea discussions with Dunn)). And see Breuington v. State, 7 N.E.3d 946, 976 (Ind.2014) (party may not request relief from error it invited, encouraged, or caused), cert. denied, reh’g denied.

[12] For these reasons, the court erred in granting the withdrawal of the plea agreement, and we must reverse and remand for sentencing.

[13] Reversed and remanded.

PYLE, J., concurs. BARNES, J., dissents with separate opinion.

. Ind.Code § 35-43-4-2 (2009).

. Ind.Code § 35-43-4-2 (2009) and § 35-41-5-1 (2013).

.Ind.Code § 35-43-5-2 (2006).

. Article 1 § 13(b) of the Indiana Constitution provides:

Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.