ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel M. Grove Steve Carter
Special Assistant to the Public Defender of Indiana Attorney General of Indiana
Indianapolis, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 57S03-0607-CR-273
JUAN RIVERA,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Noble Circuit Court, No. 57C01-0410-FB-000045
The Honorable G. David Laur, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 57A03-0506-CR-307
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July 27, 2006
Rucker, Justice.
After selling approximately two pounds of methamphetamine to an undercover police
officer for $1000, twenty-year-old Juan Rivera was arrested and ultimately charged with dealing
in methamphetamine as a Class B felony. 1 He pleaded guilty to the offense under terms of a plea
agreement that provided in relevant part, “[t]en (10) years in the Indiana Department of
Corrections, with the parties arguing as to how said sentence shall be served.” App. to Br. of
Appellant at 19. After a hearing the trial court sentenced Rivera to ten years to be served at the
Indiana Department of Correction with four years suspended to probation for a total executed
term of six years. Rivera appealed, contending that (1) the trial court took improper factors into
consideration when determining how much of Rivera’s sentence should be executed and (2) his
sentence should be revised pursuant to Indiana Appellate Rule 7(B) because it is inappropriate in
light of the nature of the offense and the character of the offender. Rivera requested that the
court “remand this case with instructions to suspend more of the sentence than the four (4) years
that was previously ordered to be suspended.” Br. of Appellant at 8.
The Court of Appeals addressed and ultimately rejected Rivera’s first claim. As for
Rivera’s second claim the court held, “By agreeing to the fixed term of ten years, Rivera
impliedly agreed that such a sentence was appropriate. This issue is waived.” Rivera v. State,
841 N.E.2d 1169, 1172 (Ind. Ct. App. 2006). In support the court cited Eaton v. State, 825
N.E.2d 1287, 1289 (Ind. Ct. App. 2005), trans. not sought, for the proposition that “the defendant
waived his right to challenge the appropriateness of his sentence by accepting a plea agreement
in which he agreed to a sentencing range capped at less than the range authorized by statute.”
Rivera, 841 N.E.2d at 1172. Despite its waiver determination, the court nonetheless addressed
the merits of Rivera’s argument and concluded that his sentence was appropriate in light of the
nature of the offense and the character of the offender. Although we now grant transfer, except
as otherwise provided below we summarily affirm the Court of Appeals’ opinion.
In a recent opinion we disagreed with the view expressed in several Court of Appeals
opinions that defendants who enter into certain categories of plea agreements are either barred on
appeal from challenging the appropriateness of their sentences under Indiana Appellate Rule
1
Contained in two separate packages, the precise combined weight of the drugs was determined to be
970.8 grams. Dealing in methamphetamine in an amount in excess of three grams is a Class A felony.
See Ind. Code § 35-48-4-1(b). The record is silent on the question of why Rivera was charged with a
Class B felony offense.
2
7(B) or have acquiesced to their sentences and therefore cannot now complain. We held instead
that Indiana Appellate Rule 7(B)
articulates a standard of review designed as guidance for appellate
courts. . . . Of course a defendant must persuade the appellate
court that his or her sentence has met this inappropriateness
standard of review. But to say that a defendant has acquiesced in
his or her sentence or has implicitly agreed that the sentence is
appropriate undermines in our view the scope of authority set forth
in Article VII, Section 4 of the Indiana Constitution. We thus
disapprove of language in Gist, Mann, and their progeny providing
otherwise. 2
Childress v. State, 848 N.E.2d 2073, 1080 (Ind. 2006). That is not to say however that every
sentence that is the product of a plea agreement is subject to Rule 7(B) review. Only if the trial
court is exercising discretion in imposing sentence may a defendant then contest on appeal the
merits of that discretion on the grounds that the sentence is “inappropriate in light of the nature
of the offense and character of the offender.” Id. at 1078-80. And whether a defendant pleads
guilty under terms of an agreement that provides for an “open plea” 3 or an agreement that
provides for a sentencing cap or range, the trial court still must exercise discretion in determining
the sentence it will impose. See id. at 1078. By contrast where a plea agreement calls for a
specific term of years, “if the trial court accepts the parties’ agreement, it has no discretion to
impose any thing other than the precise sentence upon which they agreed.” Id. at 1078-79 n.4
(citing Badger v. State, 637 N.E.2d 800, 802 (Ind. 1994) (“[I]f the court accepts the agreement, it
becomes bound by the terms of the agreement.”); Blackburn v. State, 493 N.E.2d 437, 439 (Ind.
1986) (“Although not a party to the agreement, once the court accepts a plea agreement, it is
bound by the terms of that agreement.”)).
In this case, the plea agreement is not “open” in the sense that sentencing is left
completely to the trial court’s discretion. Nor does the plea agreement contain a sentencing cap
or sentencing range. Nonetheless the plea agreement here still affords the trial court some
2
Eaton, supra, was among the opinions containing language of which we disapproved. See Childress,
848 N.E.2d at 1077 n.2.
3
See Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004) (“A plea agreement where the issue of sentencing
is left to the trial court’s discretion is often referred to as an ‘open plea.’”).
3
amount of discretion in imposing sentence. More precisely the trial court was left to decide
“how said sentence shall be served.” Stated somewhat differently, although the trial court was
bound to impose a ten-year sentence, it retained the discretion to determine the amount of the
sentence that would be suspended to probation. 4 And precisely because the trial court retained
discretion in determining the amount of the sentence that would be executed, Rivera did not
waive his right to contest the merits of that discretion on grounds that the sentence is
“inappropriate in light of the nature of the offense and the character of the offender.” As
indicated earlier in this opinion the Court of Appeals addressed the merits of Rivera’s claim. 5
We decline to address the claim further.
The judgment of the trial court is affirmed.
Shepard, C.J., and Sullivan and Boehm, JJ., concur.
Dickson, J., concurs in result without separate opinion.
4
The trial court suspended four years of Rivera’s sentence to probation. Because Rivera was not
otherwise ineligible, the trial court had the discretion to suspend Rivera’s entire sentence. See I.C. § 35-
50-2-2.
5
On transfer, counsel for Rivera acknowledges that the Court of Appeals reviewed the merits of Rivera’s
Rule 7(B) claim notwithstanding a finding of waiver. He also acknowledges “[t]he propriety of the
sentence is fact specific to the instant case and does not seem to be a novel question of law worthy of
discretionary review by this Court.” Pet. to Trans. at 7. We appreciate counsel’s candor.
4