concurring.
I concur in this opinion and the conclusion that Badger's consecutive sentences, imposed pursuant to a plea agreement, are illegal and constitute fundamental error entitling him to post-conviction relief, I write separately, however, to explain my *937reasons for reaching a conclusion different from that which I reached as a member of another panel that issued the memorandum decision in Badger's direct appeal, Badger v. State, 664 N.E.2d 423 (Ind.Ct.App.1996) ("Badger I").
In Badger I, I concurred with Judge Robertson's assessment that even though the imposition of consecutive sentences was illegal, "a defendant may not enter [into] a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence." Id., slip op. at 3 (quoting Collins v. State, 509 N.E.2d 827, 833 (Ind.1987)). We relied solely on Collins v. State to support our position that "Badger may not complain that his sentence is illegal" and our ultimate refusal to correct the error. Badger, slip op. at 3. The Collins decision relied upon Twyman v. State, 459 N.E.2d 705 (Ind.1984), for the broad pronouncement that a defendant who benefits from a plea agreement calling for an illegal sentence may not later complain that the sentence is illegal.
A closer look reveals that the Collins court's reliance on Twyman was misplaced. Twyman did not address the challenge to an illegal sentence unauthorized by statute, as was the issue in both Collins and Badger I. Rather, Twyman addressed a criminal court's personal jurisdiction over a juvenile who had misrepresented his age to the court. There, Twyman challenged his conviction and sentence imposed pursuant to a guilty plea entered in a criminal court, alleging that he was actually a juvenile at the time of the plea and had lied about his age to receive a reduced charge from the State. Twyman alleged not that his sentence was illegal, but that the criminal court lacked jurisdiction to accept his guilty plea or to enter sentence because of his juvenile status and the absence of a waiver from the juvenile court. The Twyman court held that where an accused under the age of eighteen misrepresents his age to a criminal court, the judgment of the criminal court "may be voidable for lack of personal jurisdiction" if the accused makes a timely challenge to the court's personal jurisdiction over him. Twyman, 459 N.E.2d at 708. Nevertheless, the supreme court went on to observe:
[It would be a mockery of the courts and our judicial system if Twyman, who deliberately deceived the criminal court as to his age and accepted the benefit of a plea bargain substantially reducing the charge, were allowed, eight years later, when faced with an enhanced sentence as an habitual offender, to assert his juvenile status for the first time, and have his conviction vacated.
Having perpetrated a fraud upon the criminal court, and having received benefit from such subterfuge, [Twyman] is estopped from raising the issue in the post-conviction proceeding.
Twyman, 459 N.E.2d at 711 (citations omitted). Thus, Twyman addresses the waiver of personal jurisdiction, not the forfeiture of the right to challenge an illegal sentence, and it certainly does not support the sweeping statements made in Collins and reiterated in Badger I. Neither, in this case, did Badger perpetrate a fraud or subterfuge upon the court.
Moreover, in Sinn v. State, 609 N.E.2d 434, 435 (Ind.Ct.App.1998), trans. denied, this court specifically rejected the State's argument that because the defendant had received the benefit of a plea agreement imposing an illegal sentence, he could not subsequently oppose it.1 We explained, "As logical and attractive as the State's argument is, it must be rejected.... [A] contract made in violation of statute is void *938and unenforceable.... [Wle cannot sanction an illegal sentence simply because it was the product of an agreement." Id. at 436 (citations omitted). Indeed, it is the duty of appellate courts to bring illegal sentences into compliance. Golden v. State, 553 N.E.2d 1219, 1224 (Ind.Ct.App.1990), trans. denied. As such, an ilegal sentence must be corrected, even if the correction subjects the defendant to an even longer period of incarceration2 Id.
In keeping with the foregoing principles, and upon further reflection, I conclude that here we have made the correct decision to revisit Badger's guilty plea and illegal sentences. It is important that judges keep an open mind and consider well-reasoned arguments, even when they have previously taken another position. Corr v. Schultz, 743 N.E.2d 1194, 1200 (Ind.Ct.App.2001) (Najam, J., concurring). Having reconsidered the issue, including the inapposite. authority relied upon in Badger I, I fully concur in this opinion and our conclusion that Badger's consecutive sentences constitute fundamental error entitling him to post-conviction relief.
ORDER
This Court having heretofore on July 3, 2001, handed down its opinion in this appeal marked Memorandum Decision, Not for Publication; and, ©
The Appellant, by counsel, having thereafter filed his Motion to Publish Memorandum Decision, Alleging therein that said decision meets the criteria of Appellate Rule 65A(1) and (8) by establishing, modifying and clarifying a rule of law and involving a legal issue of unique interest and substantial importance and prays that said Memorandum Decision now be ordered published, which said Motion is in the following words and figures, to-wit:
(HL)
And the Court, having examined said Motion and being duly advised, now finds that the same should be granted and that this Court's opinion heretofore down as a Memorandum Decision should now be ordered published.
IT IS THEREFORE ORDERED as follows:
1. The Appellant's Motion to Publish Memorandum Decision is granted and the Court's opinion heretofore handed down in this cause on July 3, 2001, marked Memorandum Decision, Not for Publication, is now ordered published.
. Judge Robertson also wrote Sinn.
. We note, nevertheless, that our supreme court has held that an appellant cannot successfully claim harmful or prejudicial error because he received a lesser punishment than that prescribed by law. See Harvey v. State, 498 N.E.2d 1231, 1235 (Ind.1986); see also Mates v. State, 200 Ind. 551, 165 N.E. 316 (1929). In Collins, the defendant argued that he should be allowed: to withdraw his guilty plea where the plea agreement called for an illegal suspension of his sentence. The rule pronounced in Harvey and Mates, rather than the rule pronounced in Twyman, might have been more appropriately applied in Collins in light of the fact that the defendant received a lesser punishment than that prescribed by statute. In Badger's case, however, the sentence he received was greater than that prescribed by statute. As we have already observed, a sentence exceeding statutory authority constituies fundamental error which courts are duty bound to correct. See slip op. at 10.