Lee v. State




Attorneys for Appellant                            Attorneys for Appellee
Susan K. Carpenter                                 Steve Carter
Public Defender of Indiana                         Attorney General of
Indiana

Chris Hitz-Bradley                                 Ellen H. Meilaender
Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                              Indianapolis, Indiana


____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 02S03-0310-PC-463

Phillip Lee,
                                             APPELLANT (PETITIONER BELOW),

                                     v.

State of Indiana,
                                             Appellee (Respondent below).
                      _________________________________

         Appeal from the Allen Superior Court, No. 02D04-8805-CF-246
                  The Honorable John F. Surbeck, Jr., Judge
                      _________________________________

 On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-0303-
                                   PC-104
                      _________________________________

                              October 19, 2004

Rucker, Justice.

       The  question  presented  is  whether  an  illegal  sentence  imposed
pursuant to a plea agreement  automatically  renders  the  entire  agreement
void.  We conclude it does not.

                        Facts and Procedural History

      In 1988, the State charged Phillip Lee  with  robbery  as  a  Class  C
felony and also alleged that he was an habitual offender.  Under  the  terms
of a written plea agreement Lee pleaded guilty  to  the  robbery  charge  in
exchange for the State’s dismissal  of  the  habitual  offender  allegation.
Also under the terms of the agreement, the trial court sentenced  Lee  to  a
term of eight years imprisonment,  to  run  consecutively  to  a  three-year
sentence Lee was serving for an unrelated theft conviction.  Lee  eventually
served both sentences and was discharged.

      In 1996, Lee was charged with dealing in cocaine as a Class A  felony.
 He was also alleged to be an habitual offender based  on  the  prior  theft
and robbery convictions.  After a trial by jury  Lee  was  found  guilty  as
charged and  was  found  to  be  an  habitual  offender.   The  trial  court
sentenced Lee to fifty years for the dealing conviction enhanced  by  thirty
years  for  the  habitual  offender  adjudication.   Lee’s  conviction   and
sentence were affirmed on direct appeal.  See Lee v. State, 694  N.E.2d  719
(Ind. 1998).

      Presently serving an eighty-year sentence, and in an  effort  to  have
his habitual offender adjudication set aside, Lee filed a petition for post-
conviction  relief  challenging  his  prior  robbery  conviction.   After  a
hearing the post-conviction court denied relief.  On  review  the  Court  of
Appeals reversed.  See Lee v. State, 792 N.E.2d 603 (Ind.  Ct.  App.  2003).
Having previously granted transfer we now affirm the judgment of  the  post-
conviction court.

                                 Discussion

      In general a trial court cannot order  consecutive  sentences  in  the
absence of express statutory authority.  Baromich v. State,  252  Ind.  412,
249 N.E.2d 30, 33 (1969).   At  the  time  Lee  committed  the  offense  the
statute governing consecutive  sentences  was  limited  to  those  occasions
where  the  court  was  meting  out  two  or  more  terms  of   imprisonment
contemporaneously.  See Kendrick v.  State,  529  N.E.2d  1311,  1312  (Ind.
1988), superseded by statute.  In this case Lee’s sentences for robbery  and
theft were not being imposed  contemporaneously.   As  a  result  the  trial
court lacked statutory  authority  to  order  the  sentences  to  be  served
consecutively.  According to Lee, “an  illegal  sentencing  provision  voids
the entire plea agreement  and  requires  vacation  of  the  conviction  and
sentence entered under the agreement.”   Br.  of  Appellant  at  1,  2.   In
support Lee cites Sinn v. State, 609 N.E.2d 434 (Ind.  Ct.  App.  1993)  and
Thompson v. State, 634 N.E.2d 775 (Ind. Ct. App. 1994).

      In Sinn the  defendant  entered  a  plea  agreement  that  included  a
consecutive  sentence.   He  thereafter  filed  a  motion  to  correct   the
sentence, which the trial court denied.  The  State  argued  that  based  on
contract law principles Defendant Sinn was  bound  by  his  agreement.   Not
completely rejecting  the  contract  law  argument,  the  Court  of  Appeals
observed:

           As logical and attractive as the State’s argument is, it must be
           rejected.  Sinn would prevail under contract  law  standards:  a
           contract made in violation of statute is void and unenforceable.
            Moreover, we cannot sanction an illegal sentence simply because
           it was the product  of  an  agreement.   For  example,  although
           ludicrous, we would not enforce a  sentence  of  death  for  jay
           walking simply because the sentence was the product  of  a  plea
           agreement.


Sinn, 609 N.E.2d at 436 (citation  omitted).   Similarly  in  Thompson,  the
defendant entered a plea agreement that called for a  consecutive  sentence.
Like Sinn,  Defendant  Thompson  subsequently  filed  a  motion  to  correct
erroneous sentence, which the trial court denied.  On appeal the State  made
the same argument it  made  in  Sinn.   Quoting  Sinn,  the  Thompson  court
concluded, “the conviction and sentence  entered  pursuant  to  the  illegal
plea agreement must be vacated.”  Thompson, 634 N.E.2d at  778.   The  State
has made similar arguments in other cases, all of which have been  rejected.
 See, e.g., Badger v. State, 754 N.E.2d 930, 932-36 (Ind.  Ct.  App.  2001);
Smith v. State, 717 N.E.2d 239, 240-41 (Ind. Ct. App. 1999).

      Our courts have long held that plea agreements are in  the  nature  of
contracts entered into between the defendant  and  the  State.   See,  e.g.,
Bennett v. State, 802 N.E.2d 919,  921  (Ind.  2004);  Gist  v.  State,  804
N.E.2d 1204, 1206 (Ind. Ct. App. 2004), trans. not sought; Spivey v.  State,
553 N.E.2d 508, 510 (Ind. Ct. App. 1990);  Epperson  v.  State,  530  N.E.2d
743, 745 (Ind. Ct. App. 1988).  As this Court has explained:

           [A]  plea  agreement  is  contractual  in  nature,  binding  the
           defendant, the state 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 a plea agreement, it shall be bound by  its
           terms.


Pannarale v.  State,  638  N.E.2d  1247,  1248  (Ind.  1994)  (citation  and
quotation omitted).  Declaring that plea agreements are contractual  is  not
particularly  remarkable.   Several  federal  circuits  have  embraced  this
approach as well.  See, e.g., Carnine v. U.S., 974 F.2d 924, 928  (7th  Cir.
1992) (“This circuit regards plea agreements as contracts conferring all  of
the attendant rights and obligations  governed  by  ordinary  principles  of
contract law.”); U.S. v.  Reardon,  787  F.2d  512,  516  (10th  Cir.  1986)
(“Courts have frequently looked to contract  law  analogies  in  determining
the rights of defendants aggrieved in the plea negotiation process.”);  U.S.
v. Baldacchino, 762 F.2d 170, 179 (1st  Cir.  1985)  (“[P]lea  bargains  are
subject to contract law principles insofar as their application will  insure
the defendant what is reasonably due him.”); U.S. v. Arnett, 628 F.2d  1162,
1164 (9th Cir.  1979)  (noting  that  a  “plea  bargain  is  contractual  in
nature”) (quotation omitted).

      Because important  due  process  rights  are  involved,  contract  law
principles although helpful  are  not  necessarily  determinative  in  cases
involving plea agreements.  For example we of course agree  that  “we  would
not enforce a sentence of death for jay walking simply because the  sentence
was  the  product  of  a  plea  agreement.”   Sinn,  609  N.E.2d   at   436.
Nonetheless,  precisely  because  plea   agreements   are   contracts,   the
principles of contract law can provide guidance in the consideration of  the
agreement.  Griffin v. State, 756 N.E.2d 572,  574  (Ind.  Ct.  App.  2001),
trans. denied.

      It is true that as a general proposition a contract made in  violation
of a statute is void and unenforceable.[1]   See  Tolliver  v.  Mathas,  512
N.E.2d 187, 189 (Ind. Ct. App. 1987), trans. denied, (Ind. Ct.  App.  1989).
However it is also true that if a contract  contains  an  illegal  provision
that can  be  eliminated  without  frustrating  the  basic  purpose  of  the
contract, the court will enforce the remainder of the contract.  Harbour  v.
Arelco, Inc.,  678  N.E.2d  381,  385  (Ind.  1997);  see  also  17A  C.J.S.
Contracts § 297 (1999) (“[T]he fact that one part of  an  agreement  may  be
void or unenforceable does not render the  entire  agreement  void,  if  the
prohibited and valid provisions are severable,  and  if  the  parties  would
have entered  the  bargain  absent  the  illegal  portion  of  the  original
agreement.”).  These principles apply even where the  illegal  or  otherwise
objectionable  provision  is  prohibited  by  statute.   See,  e.g.,  Cont’l
Basketball Ass’n, Inc. v. Ellenstein Enters.,  Inc.,  669  N.E.2d  134,  141
(Ind.  1996)  (declaring  franchise  agreement  valid  even  though  not  in
compliance with the Disclosure Act); Jaehnen v. Booker, 806  N.E.2d  31,  34
(Ind. Ct. App. 2004) (statute invalidating cognovit  notes  did  not  render
entire agreement void), trans. denied; Wells v. Vandalia R.R. Co.,  56  Ind.
App. 211, 103 N.E. 360, 362 (1913) (wages collected under an  assignment  of
wages which was prohibited by statute did  not  invalidate  entire  contract
because invalid provision was separable from the remaining contract).

      In this case Lee argued, “As with most plea  agreements,  the  illegal
sentencing provision was the material provision of his plea  agreement”  and
thus cannot be severed from the rest of the  agreement,  “because  doing  so
would eviscerate the contract to the point  where  the  contract  ceased  to
exist altogether.”  Reply Br. of Appellant at 3.   Although  we  acknowledge
that a sentencing provision is an important component of a  plea  agreement,
we do not agree  that  severing  the  sentence  provision  necessarily  does
violence to the  remainder  of  the  agreement.  This  is  so  because  “the
consequences of a guilty plea are  collateral  to  the  paramount  issue  of
guilt or innocence.”  White v.  State,  497  N.E.2d  893,  904  (Ind.  1986)
(emphasis in original).  Thus, where a defendant enters  a  plea  of  guilty
knowingly, intelligently, and voluntarily, there is no compelling reason  to
set aside the conviction on grounds that the sentence  is  later  determined
to be invalid.  Although not previously expressed in terms of  contract  law
principles, this view is consistent with the approach our courts have  taken
on other occasions.  See id. at 906 (affirming  defendant’s  conviction  for
burglary and theft, but vacating that portion of  the  plea  agreement  that
required the sentences to run  consecutive  to  a  sentence  imposed  in  an
unrelated case); see also Dragon v. State, 774 N.E.2d 103, 108-09 (Ind.  Ct.
App. 2002) (sentence entered pursuant  to  a  plea  agreement  remanded  for
resentencing where trial court lacked authority to  order  sentence  to  run
consecutive to sentence imposed in unrelated case),  trans.  denied;  Willis
v. State, 498 N.E.2d 1029, 1033 (Ind. Ct. App. 1986) (affirming  defendant’s
murder conviction but vacating that portion of plea agreement that  included
an erroneous thirty-year probationary term).
      In the case before us Lee makes no claim  that  his  guilty  plea  was
entered unknowingly, unintentionally, or involuntarily.   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).  Lee does not  contend  that
he would have taken his chances and gone to trial  had  he  known  that  the
trial court lacked the statutory authority to run  his  eight-year  sentence
for robbery consecutive to his three-year sentence in  the  unrelated  theft
conviction, for a total of eleven years.

      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  trial  court  with
instructions to enter an order running the sentences concurrently.   However
Lee is entitled to no such relief.2  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).

                                 Conclusion

      We affirm the judgment of the post-conviction court.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
-----------------------
[1] We recently made a similar observation in Bennett v. State,  802  N.E.2d
919, 922 n.2 (Ind. 2004).  This is the first occasion however that  we  have
explored the matter in any detail.
2 Even if Lee were so entitled, it would be of no benefit.  He  has  already
served his sentence.  Once “sentence has  been  served,  the  issue  of  the
validity of the sentence is rendered moot.”   Irwin  v.  State,  744  N.E.2d
565, 568 (Ind. Ct. App. 2001) (quotation omitted).