Page v. State

OPINION

RILEY, Judge

STATEMENT OF THE CASE

Petitioner-Appellant Orlando Page (Page) appeals from the denial of his petition for post-conviction relief.

We affirm.

ISSUE

Page presents two issues which we consolidate and restate as: whether the post-conviction court erred in its. denial of Page’s claim that the trial court erred in sentencing him.

FACTS AND PROCEDURAL HISTORY

On March 22, 1993, Page pled guilty to dealing in cocaine, a Class B felony. A plea agreement was negotiated whereby Page was to receive a sentence of no more than six years executed. The trial court sentenced Page to ten years with.eight years suspended. Page filed a motion to correct erroneous sentence which the trial court denied. Subsequently, Page filed his petition for post-conviction relief which was also denied by the trial court. Page then filed a motion to correct error as to the court’s denial of his petition for post-conviction relief. The court granted Page’s motion in part and held a hearing on his previously denied petition for post-conviction relief. Following the hearing, the court denied Page’s petition for post-conviction relief. This appeal ensued.

DISCUSSION AND DECISION

Page contends that the post-conviction court erred in its denial of his claim that the trial court erred in sentencing him. Particularly, Page argues that the trial court, in contravention of his plea agreement, improperly sentenced him to ten years with eight years suspended.

A post-conviction petition under Ind. Post-Conviction Rule 1 is a quasi-civil remedy, and, as such, the petitioner bears the burden to prove by a preponderance of the evidence that he or she is entitled to relief. Mato v. State, 478 N.E.2d 57, 60 (Ind.1985); P-C.R. 1, § 5. The judge who presides over a post-conviction hearing possesses exclusive authority to weigh the evidence and determine the credibility of the witnesses. Stewart v. State, 517 N.E.2d 1230, 1231 (Ind.1988). Therefore, upon review of a denial of post-conviction relief, the appellate court will not set aside the post-conviction court’s ruling unless the evidence is without conflict and leads solely to a result different from that reached by the post-conviction court. Id. In making this determination, we consider only the evidence that supports the decision of the post-conviction court together with any reasonable inferences. McCullough v. State, 672 N.E.2d 445, 447 (Ind.Ct.App.1996).

A plea agreement is contractual in nature and binds the defendant, the state and the trial court. Pritscher v. State, 675 N.E.2d 727, 732 (Ind.Ct.App.1996). The trial court is given the discretion to accept or reject a plea agreement, and, if it accepts the agreement, it is strictly bound thereby. Id.; Ind. Code § 35-35-3-3(e). In order to avoid mistakes and misrepresentations with regard to such a binding agreement, counsel should reduce to writing all terms of a plea agreement. See Richardson v. State, 456 N.E.2d 1063, 1067 (Ind.Ct.App.1983).

In the present ease, Page, his attorney, and the prosecuting attorney negotiated a plea agreement that provided for sentencing to be left to the court’s discretion. Although the written plea agreement did not include all of the terms of their agreement, Page, his counsel, the State and the court *232discussed the omitted terms at length at both the plea hearing and sentencing. The record reveals that at the entry of plea hearing, the plea agreement was amended to provide for a time cap of six years executed. Defense counsel informed the court of a six year time cap, and, following a discussion between defense counsel and the court, the parties agreed that the executed portion of Page’s sentence was not to exceed six years. The court later questioned Page as to his understanding of this specific term of the plea agreement, and Page indicated he understood that his sentence would not exceed six years executed. The colloquy took place as follows:

MR. LOVE [Defense counsel]: Judge, with your permission. Uhm, outside the ... the docu ... the wording of the plea recommendation there is also an agreement between the State of Indiana and the defendant that at sentencing the ... the defendant will be eligible for a six year time cap, that the defendant may argue for either a time served or a suspended sentence, and by his criminal record he is eligible, that the State of Indiana will stand mute as to those arguments. Is that correct, Mr. Heck [the State]?
THE STATE: My understanding, and there’s been some discussion since I last talked to, uh, the office, but, uh, the six year portion as represented, uh, was my understanding of what the State would be asking for, uh, as a result of ... of things that the defendant has done, uh, of benefit to the State.
THE COURT: Well, let’s take it one step at a time here. You’ve agreed there’s a, would be a six year time cap....
******
THE COURT: So we’ll show the plea agreement, uh, further amended, uh, to provide for an executed cap of six years.... Does that satisfy your client, Mr. Love?
MR. LOVE: Judge, it does, except that the court said a six year executed time cap. It’s my understanding that if we were to put a six year executed time cap that he would get six years in prison. Uh, we would ask the Court to have the understanding that it’s a six year time cap.
THE COURT: No, six year ex ... six year maximum we would order executed, which means it would be done in three. MR. LOVE: Yes, sir.
THE COURT: In other words, I’m not gonna, if, if, if I decide to give him the max I could give him with a six year cap, I’m not going to give him twelve to get him six in prison. Is that ... is that what you’re looking at?
MR. LOVE: Yes, sir, except that he would be eligible for a suspended [sic] so the court would not be bound to give him a six year sentence.
THE COURT: I ... I understand that. That’s a cap. That’s not a ... that’s not, uh, flat agreement on the sentence, that’s just an agreement that the sentence will not exceed, the executed portion of the sentence will not exceed six years.
MR. LOVE: Yes sir.
THE COURT: Alright.
MR. LOVE: Thank you, sir.
THE COURT: Okay. Do you understand all that, Mr. Page?
THE DEFENDANT: Yes I do.

(R. 88-94).

THE COURT: Do you understand, however, that in this case there is an executed cap on your sentence of six years and that, uh, your sentence could not exceed six years executed?
THE DEFENDANT: Yes.

(R. 103).

Subsequently at the sentencing hearing, defense counsel indicated he wanted to clarify the time cap provision contained in Page’s plea agreement. After receiving clarification that the time cap was six years executed, defense counsel indicated he understood.

MR. LOVE: I ... I have a question, Your Honor. Uh, in as much as there was a ten year time cap, does the Court have the jurisdiction to sentence up to ten years?
THE COURT: Par ... pardon me. I ... I, my recollection was there was a ten year time cap. Are you saying there was a six year time cap?
*233MR. LOVE: I’m sorry. Six year time cap. THE STATE: State’s understanding, uh, is that the provision that was included indicated an executed cap of six years.
MR. LOVE: Okay.
THE STATE: That was the State’s understanding.
MR. LOVE: I just wanted to clear it up. THE STATE: Okay.
MR. LOVE: And we’re now clear. Thank you.

(R. 143-145).

The trial court sentenced Page to ten years with eight years suspended. Therefore, Page was required to actually serve two years executed. The trial court was bound by the terms of the plea agreement and properly sentenced Page in accordance with the agreement.

Additionally, Page claims that the State and the court used the term “executed” in an unusual manner and that, because of this unusual usage, the court should have explained the term’s meaning to him. Page argues that his guilty plea should be vacated because the court failed to explain the meaning of the term. We decline to address this issue based upon Page’s failure to present cogent argument and cite authority that supports his proposition. See Sipe v. State, 690 N.E.2d 779, 781 (Ind.Ct.App.1998) (failure to present cogent argument and citation to authority results in waiver of issue on appeal).

CONCLUSION

Based upon the foregoing, we find the post-conviction court did not err in denying Page’s claim that the trial court improperly sentenced him.

Affirmed.

STATON, J., concurs. BROOK, J., dissents with separate opinion.