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
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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).