Appellant Pro Se Attorneys for Appellee
William S. Bennett Steve Carter
Carlisle, Indiana Attorney General
of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
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__
In the
Indiana Supreme Court
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No. 31S01-0402-CR-52
William S. Bennett,
APPELLANT (DEFENDANT BELOW),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Harrison Superior Court, No. 31D01-9511-CF-811
The Honorable Roger D. Davis, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 31A01-0209-
CR-337
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February 5, 2004
Rucker, Justice.
William S. Bennett filed his Brief of Appellant after obtaining leave
to file a belated appeal. In response to a motion by the State, the Court
of Appeals dismissed the appeal on grounds of res judicata. We grant
Bennett’s petition to transfer and address claims not previously addressed.
Facts and Procedural History
This case has a tortured history. However, for our purposes the
relevant facts are these. In 1995, Bennett pleaded guilty to attempted
murder in Crawford County and was sentenced to a term of forty years. In
that same year, he also pleaded guilty to robbery in an unrelated case in
Harrison County for which he was sentenced to a term of ten years. The
Harrison County trial court ordered the sentence to run consecutively to
the sentence imposed in Crawford County. Bennett filed a Motion to Correct
Erroneous Sentence challenging the trial court’s authority to impose
consecutive sentences. In support, he cited Kendrick v. State, 529 N.E.2d
1311 (Ind. 1988) and other pre-1995 cases. The trial court denied the
motion, and Bennett sought appellate review. However, the Court of Appeals
dismissed the attempted appeal because Bennett’s Notice of Appeal was
untimely filed. In an order denying transfer, this Court addressed the
merits of Bennett’s claim. We noted, “the General Assembly amended the
applicable sentencing statute in 1994 to state that ‘[t]he court may order
terms of imprisonment be served consecutively even if the sentences are not
imposed at the same time.’” Order dated February 15, 2002. We further
explained, “[t]his amendment had the effect of overturning the
contemporaneousness requirement of Kendrick.” Id.
Thereafter, Bennett sought and was granted leave by the Court of
Appeals to file a belated appeal. In his appellate brief, Bennett devoted
the majority of his argument challenging the trial court’s authority to
impose consecutive sentences. In fact in his “Statement of the Issues”
Bennett’s sole contention was “whether trial court erred by imposing
consecutive sentence.” Br. of Appellant at 1. The State responded by
filing a motion to dismiss on grounds of res judicata arguing that this
Court previously addressed the merits of the consecutive sentencing issue
in the order denying transfer. The Court of Appeals agreed and dismissed
the appeal. Buried near the end of Bennett’s twenty-seven page handwritten
pro se brief, Bennett also contended the trial court erred (1) in failing
to articulate why consecutive sentences were being imposed, (2) in failing
to advise him that consecutive sentences could be imposed, and (3) in
failing to give him full credit for pre-trial confinement. See Br. of
Appellant at 23-26. We grant Bennett’s petition to transfer and address
these claims.[1]
Discussion
Bennett entered a plea agreement that provides in relevant part:
“Sentence: Ten (10) years at IDC, with all but Five (5) years suspended and
Five (5) years to serve consecutive to Crawford County.” Appellant’s App.
at 52. When a sentencing court exercises its discretion to enhance a
presumptive sentence, orders that sentences be served consecutively, or
both, the record must identify relevant factors which underlie that
decision. Saunders v. State, 584 N.E.2d 1087, 1088-89 (Ind. 1992).
However, the trial court’s discretion is limited where the sentence is
imposed pursuant to a plea agreement. A plea agreement is contractual in
nature, binding the defendant, the State, and the trial court. Pannarale
v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). It is within the trial
court’s discretion to accept or reject a plea agreement and the sentencing
provisions therein; however, if the court accepts such an agreement, it is
strictly bound by its sentencing provision and is precluded from imposing
any sentence other than required by the plea agreement. State ex rel.
Goldsmith v. Marion County Superior Court, 275 Ind. 545, 419 N.E.2d 109,
114 (1981).[2] In sum, the trial court is not required to provide specific
reasons for imposing a consecutive sentence when it is “imposing sentence
pursuant to a plea agreement.” Silvers v. State, 499 N.E.2d 249, 253 (Ind.
1986). Here, the trial court accepted the plea agreement entered between
Bennett and the State and sentenced Bennett pursuant to its terms.
Bennett’s claim that the trial court erred in failing to articulate its
reasons for imposing a consecutive sentence thus fails.
In like fashion Bennett’s claim that the trial court erred in failing
to advise him of the possibility of the imposition of consecutive
sentences, see Ind. Code § 35-35-1-2(a)(3), also fails. The recommended
sentencing set forth in the plea agreement called for the sentences to be
served consecutively. The trial court was bound to sentence Bennett
accordingly. See Goldsmith, supra.
Finally, the trial court awarded Bennett 230 days of pre-trial credit
time. Bennett contends “since the consecutive order in Bennett’s sentence
is without statutory authority, Bennett is entitled to receive full credit
for all time spent by him in pretrial confinement awaiting final
disposition on the robbery charge.” Br. of Appellant at 25-26. Bennett is
incorrect. Again, the trial court did not err in imposing consecutive
sentences. Further, “where a defendant is confined during the same time
period for multiple offenses for which he is convicted and sentenced to
consecutive terms, credit time is applied against the aggregate sentence,
not against each individual sentence.” Lanham v. State, 540 N.E.2d 612,
613 (Ind. Ct. App. 1989). Bennett cannot prevail on this issue.
Conclusion
We grant transfer and affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
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[1] Once again Bennett contends the trial court lacked statutory authority
to impose consecutive sentences. We addressed this issue in our order of
February 15, 2002 and decline to elaborate further.
[2] Of course, even if the product of an agreement, a sentence imposed
contrary to statutory authority would render a plea agreement void and
unenforceable. See Sinn v. State, 609 N.E.2d 434, 436 (Ind. Ct. App.
1993). In this case there was no statutory impediment to the imposition of
Bennett’s sentence.