                                                                                      FILED
                                                                               09/15/2017, 10:08 am
                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jacob O. Robinson,                                        September 15, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          22A01-1604-CR-856
        v.                                                Appeal from the Floyd Circuit
                                                          Court
State of Indiana,                                         The Honorable J. Terrence Cody,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          22C01-1402-FD-377



Pyle, Judge.




Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                Page 1 of 14
                                             Statement of the Case
[1]   Jacob O. Robinson (“Robinson”) appeals the sentence imposed following his

      guilty plea to Class D felony attempted residential entry 1 and his admission to

      being an habitual substance offender.2 Robinson argues that: (1) the trial court

      abused its discretion by denying his motion to continue his sentencing hearing;

      and (2) his sentence is inappropriate. However, we need not address these

      issues because we sua sponte conclude that Robinson’s habitual substance

      offender adjudication and enhancement of the sentence for a non-substance

      offense was contrary to statute. Because the trial court entered an illegal

      sentence and the parties’ plea agreement—which left sentencing open to the

      trial court’s discretion—does not allow the trial court to lawfully enter an

      habitual substance offender sentencing enhancement, we reverse and remand to

      the trial court for further proceedings.


[2]   We reverse and remand.


                                                           Issue3
               Whether this case should be reversed and remanded to the trial court
               because the habitual substance offender adjudication and
               enhancement of a non-substance conviction was contrary to statute.


      1
       IND. CODE §§ 35-43-2-1.5; 35-41-5-1. We note that, effective July 1, 2014, a new version of this residential
      entry statute was enacted and that Class D felony attempted residential entry is now a Level 6 felony.
      Because Robinson committed his crime in February 2014, we will apply the statute in effect at that time.
      2
          I.C. § 35-50-2-10. Effective July 1, 2014, this habitual substance offender statute was repealed.
      3
        Because we conclude that the trial court entered an illegal sentence that requires a remand to address the
      sentencing error, we will address neither Robinson’s appellate challenges nor the State’s request to reconsider
      our motions panel’s order that denied the State’s previous motion to dismiss.

      Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                            Page 2 of 14
                                                         Facts
[3]   On February 21, 2014, Robinson fled on foot from the police, and, in an

      attempt to evade the police, approached the door of a stranger’s home, beat on

      the door to try and gain entry, and broke the door knob. Thereafter, the State

      charged Robinson, under cause number 22C01-1402-FD-377 (“Cause 377”),

      with the following: (1) Class D felony attempted residential entry; (2) Class D

      felony possession of methamphetamine; (3) Class D felony unlawful possession

      of a syringe; (4) Class A misdemeanor possession of marijuana; (5) Class A

      misdemeanor possession of paraphernalia; and (6) Class A misdemeanor

      resisting law enforcement. The State also alleged that Robinson was: (7) an

      habitual offender; and (8) an habitual substance offender. 4


[4]   A few months later, in November 2014, while Robinson was out on bond, he

      fled from the police while driving his car. The State then charged him, under

      cause number 22C01-1411-F6-1932 (“Cause 1932”), with Level 6 felony

      resisting law enforcement and alleged that he was an habitual offender.


[5]   On May 1, 2015, Robinson entered into two different written “Blind” or open

      plea agreements with the State for Cause 377. Both plea agreements were file

      stamped by the trial court clerk. (App. Vol. 1 at 58-60, 75-77). In one of the



      4
        The habitual offender allegation listed three prior convictions, and the habitual substance offender
      allegation contained six prior substance convictions.

      Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                       Page 3 of 14
      plea agreements, Robinson agreed to plead guilty to Count 2, Class D felony

      possession of methamphetamine, and Count 8, the habitual substance offender

      allegation. In exchange, the State agreed to dismiss all remaining charges and

      the habitual offender allegation against him. In the other plea agreement,

      Robinson agreed to plead guilty to Count 1, Class D felony attempted

      residential entry, and Count 8, the habitual substance offender allegation. In

      exchange, the State agreed to dismiss all remaining charges and the habitual

      offender allegation against him. In both of these plea agreements, there was a

      provision marked to indicate that Robinson had agreed to waive his right to

      appeal. Specifically, the provision provided, “Defendant waives right to appeal

      and post-conviction relief.” (App. Vol. 1 at 60, 77).5 Robinson, his counsel,

      and the prosecutor signed both plea agreements.


[6]   That same day, the parties met for a change of plea hearing. At the beginning

      of the hearing, however, Robinson’s counsel informed the trial court that

      Robinson had had a “change of heart” and had decided that he wanted to




      5
         In Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008), our Indiana Supreme Court explained that “[p]rovisions in
      a plea agreement that attempt to waive the right to post-conviction relief are void and unenforceable.”
      Despite the fact that the waiver of post-conviction relief is unenforceable, the inclusion of that waiver does
      not invalidate the waiver of the right to direct appeal. See Perez v. State, 866 N.E.2d 817, 819 (Ind. Ct. App.
      2007) (enforcing a defendant’s waiver of direct appeal provision in his plea agreement that also contained a
      waiver of post-conviction relief), trans. denied. However, our supreme court has held that “the waiver of the
      right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law
      and the Defendant did not bargain for the sentence.” See Crider v. State, 984 N.E.2d 618, 619 (Ind. 2013).
      Here, Robinson pled guilty pursuant to an open plea agreement and, in the absence of an explicit agreement
      to a particular or specific sentence, “he was entitled to presume that the trial court would sentence him in
      accordance with the law.” Id. at 625. Because we conclude that the trial court’s sentencing was contrary to
      law, we further conclude that the waiver of appeal provision in Robinson’s plea agreement is invalid and
      unenforceable.

      Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                      Page 4 of 14
      proceed to trial. (Tr. 3). The State did not object to Robinson’s request, and

      the trial court later set Robinson’s case for trial on July 27, 2015.


[7]   On July 23, 2015, Robinson pled guilty to Count 1, Class D felony attempted

      residential entry, and he admitted that he was an habitual substance offender as

      contained in Count 8. In return for Robinson’s guilty plea, the State dismissed

      the remaining five charges and the habitual offender allegation against him.

      During the plea hearing, Robinson acknowledged that was leaving sentencing

      open to the trial court’s discretion.6 The trial court accepted his guilty pleas and

      entered judgments of conviction.7 At the end of the plea hearing, the trial court

      set Robinson’s sentencing hearing for September 24, 2015 at 10:30 a.m. The

      trial court also instructed Robinson, who was still out on bond, to report to the

      probation department so that a presentence investigation report (“PSI”) could

      be compiled.


[8]   Thereafter, the probation department contacted Robinson and scheduled a PSI

      interview on September 8, 2015, but he failed to show up for the appointment.

      Robinson also failed to show up for the second scheduled PSI interview on

      September 22, 2015. Nevertheless, the probation department compiled a PSI,

      which revealed that thirty-nine-year-old Robinson had an extensive criminal




      6
       These terms were the same as contained in the written plea agreement that Robinson signed on May 1,
      2015.
      7
          That same day, Robinson also pled guilty to the Level 6 felony resisting law enforcement in Cause 1932.



      Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                      Page 5 of 14
       history over the past twenty years, had violated probation multiple times, and

       had his probation revoked on at least four occasions.


[9]    On September 24, 2015, the morning of sentencing, Robinson sent a text to his

       counsel at 6:34 a.m. In the text, Robinson asked his counsel to continue the

       sentencing hearing because he had a real estate closing “coming up in the next

       few days” and “wish[ed] to get his ducks in line.” (Tr. 25). Robinson told his

       counsel that he “should get this case laid over.” (Tr. 25).


[10]   That same morning, Robinson’s counsel had a bench trial for a different

       defendant in Clark County, and that trial lasted until after the scheduled 10:30

       a.m. start time for Robinson’s sentencing hearing. Around 11:00 a.m.,

       Robinson’s counsel faxed the Floyd Circuit Court a motion to continue

       Robinson’s sentencing hearing “on the grounds that counsel [wa]s hopelessly

       detained in the Clark Circuit Court #3.” (App. Vol. 1 at 63). Shortly after

       sending the fax, Robinson’s counsel returned to Floyd County and appeared in

       the trial court for Robinson’s sentencing hearing. Counsel explained to the trial

       court the reason for his own tardiness. Robinson’s counsel acknowledged that

       Robinson knew about the sentencing hearing and informed the trial court about

       Robinson’s text requesting counsel to continue the sentencing hearing. Counsel

       also stated that he had tried to call Robinson multiple times, but Robinson’s

       phone did not accept phone calls and only accepted texts. 8 The trial court




       8
           Robinson’s counsel was unable to text due to a problem with his texting service provider.


       Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                    Page 6 of 14
       denied the motion for a continuance. When doing so, the trial court noted its

       reasoning, in relevant part, as follows:


               Mr. Robinson was in Court on the day that this hearing was
               scheduled and he blew off two appointments with . . . the
               probation officer . . . in preparation of the [PSI] Report and that
               leads me to the conclusion that Mr. Robinson isn’t taking this
               matter seriously[.]

       (Tr. 27). The trial court proceeded to the sentencing hearing, and Robinson’s

       counsel presented argument on his behalf.


[11]   Prior to the trial court’s imposition of Robinson’s sentence, the prosecutor

       pointed out that there was an anomaly in the fact that Robinson had pled guilty

       to the attempted residential entry charge and the habitual substance offender

       allegation. The prosecutor stated that “in order for the Habitual Substance

       Offender to work he needed [to] have plead[ed] to a substance related offense”

       and that “[t]he Attempted Residential Entry was more appropriate for the

       Habitual Offender enhancement” with which Robinson had also been charged.

       (Tr. 32). The prosecutor pointed out that Robinson had agreed to plead to both

       during his plea hearing and stated that it “mentioned it now so that way down

       the road [Robinson] can’t come back and file Post[-]Conviction Relief on the

       basis that he . . . should not have plead[ed] to the Habitual Substance Offender

       because his underlying offense wasn’t substance abuse related.” (Tr. 33).

       Robinson’s counsel then asked whether the State was asking the trial court not

       to sentence Robinson on the habitual substance offender count, and the

       prosecutor stated:

       Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017   Page 7 of 14
         Well I – I think by just looking at this right now I think we need
         to revisit the whole thing unfortunately because our agreement
         was for him to plead guilty to a felony and then be convicted of
         a[n] habitual offender count. I think the attempt probably was
         for him to plead either to Residential Entry and Habitual
         Offender or the Possession of Methamphetamine for instance
         and plead to the Habitual Substance Offender[.] But we have
         one from one group and one from the other group I don’t see
         how we can do that unless he’s agreeing. . [. .]

(Tr. 33). The trial court interrupted and stated that it was “just not inclined to

at this point to reopen this matter” when Robinson had failed to show for the

sentencing hearing and that it was “inclined to move on[.]” (Tr. 34). The trial

court further stated that it had “a method of dealing with this” and would “just

go forward with it.” (Tr. 34). The trial court then reiterated its acceptance of

Robinson’s guilty plea to the Class D felony attempted residential entry and the

habitual substance offender allegation, and it imposed a three (3) year executed

sentence for Robinson’s Class D felony attempted residential entry conviction. 9

The trial court withheld determining the habitual substance offender

enhancement until “when and if” Robinson appeared in person. (Tr. 35). The

trial court stated that it would “figure . . . out later whether there w[ould] be

additional time or not.” (Tr. 36). The trial court also issued a warrant for

Robinson’s arrest for his failure to appear at the sentencing hearing and released

his bond.




9
 For Robinson’s Level 6 felony resisting law enforcement in Cause 1932, the trial court imposed a sentence
of two (2) years and ordered that it be served consecutively to his Class D felony attempted residential entry
conviction in this cause.

Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                       Page 8 of 14
[12]   In January 2016, Robinson was arrested. Thereafter, on March 3, 2016, the

       trial court held the supplemental sentencing hearing to determine the habitual

       substance offender enhancement. At that hearing, Robinson was represented

       by new counsel, and the State had a different prosecutor. The trial court,

       however, did not address nor discuss the concern raised from the prior

       sentencing hearing. The State recommended that the trial court sentence

       Robinson to three years on the habitual substance offender allegation and “run

       [it] consecutive” to the Class D felony attempted residential entry sentence.

       (Tr. 43). The trial court stated that it was going to adopt the State’s

       recommendation, and it then imposed a separate sentence of three (3) years

       with one and one-half (1½) years executed and one and one-half (1½) years

       suspended to probation. When imposing this sentence, the trial court

       acknowledged that the habitual substance offender statute “says a minimum

       fixed term of imprisonment . . . that would tend to imply no probation[,]” but it

       stated that “case law on that topic is mixed[.]” (Tr. 48). The trial court also

       recommended that Robinson be placed in the Purposeful Incarceration

       Program and stated that it would consider a modification of his sentence upon

       completion of that program. Robinson now appeals. 10




       10
          While briefing occurred during this appeal, the State filed a motion to dismiss Robinson’s appeal, arguing
       that his notice of appeal was untimely. Robinson filed a response and a motion for damages, arguing that the
       State’s motion to dismiss was frivolous and filed in bad faith. Our motions panel denied the State’s motion
       to dismiss and denied Robinson’s motion for damages. As previously noted, the State requests this Court to
       reconsider our motions panel’s order, and we decline this request.

       Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                    Page 9 of 14
                                                    Decision
[13]   Robinson argues that: (1) the trial court abused its discretion by denying his

       motion to continue his sentencing hearing; and (2) his sentence is inappropriate.

       We will not, however, address these issues because we sua sponte conclude that

       Robinson’s habitual substance offender adjudication and enhancement of a

       non-substance offense was illegal or contrary to statute, making remand

       necessary. See Reffett v. State, 844 N.E.2d 1072, 1073 (Ind. Ct. App. 2006)

       (explaining that “before we may consider the appropriateness of [a] sentence,

       we must first consider the legality of [the] sentence”). See also Young v. State,

       901 N.E.2d 624, 626 (Ind. Ct. App. 2009) (reviewing sua sponte the legality of a

       defendant’s sentence where the trial court erred when sentencing on the

       habitual substance offender enhancement), reh’g denied, trans. denied. “A

       sentence that is contrary to or violative of a penalty mandated by statute is

       illegal in the sense that it is without statutory authorization. A sentence that

       exceeds statutory authority constitutes fundamental error.” Reffett, 844 N.E.2d

       at 1073 (internal quotation marks and citations omitted). “It is the duty of

       appellate courts to bring illegal sentences into compliance[.]” Devaney v. State,

       578 N.E.2d 386, 389 (Ind. Ct. App. 1991).


[14]   At the time of Robinson’s offenses, the habitual substance offender statute,

       INDIANA CODE § 35-50-2-10, provided that the State could “seek to have a

       person sentenced as an habitual substance offender for any substance offense by

       alleging, on a page separate from the rest of the charging instrument, that the

       person has accumulated two (2) prior unrelated substance offense convictions.”

       Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017   Page 10 of 14
       IND. CODE § 35-50-2-10(b) (emphasis added). A “substance offense” was

       defined as a “Class A misdemeanor or felony offense in which the possession,

       use, abuse, delivery, transportation, or manufacture of alcohol or drugs is a

       material element of the crime.” I.C. § 35-50-2-10(a)(2) (emphasis added). Once a

       defendant was determined to be an habitual substance offender—whether at

       trial or by guilty plea—the trial court was then required to “sentence the person

       found to be an habitual substance offender to an additional fixed term of at least

       three (3) years but not more than eight (8) years imprisonment,” with that

       sentence enhancement to be added to the sentence imposed on the underlying

       substance offense. I.C. § 35-50-2-10(f). See also Bauer v. State, 875 N.E.2d 744,

       747 (Ind. Ct. App. 2007) (“A habitual substance offender finding is not a

       separate crime but an enhancement of the sentence for the underlying crime to

       which it is attached.”), trans. denied; Howard v. State, 873 N.E.2d 685, 690-91

       (Ind. Ct. App. 2007) (explaining that an habitual offender receives one sentence

       comprised of “two components—the sentence for the underlying conviction

       and the habitual offender enhancement”). If, however, the trial court had

       found that three (3) or more years had elapsed since the defendant had been

       discharged from probation, imprisonment, or parole for the last unrelated

       substance offense conviction, then the court could have reduced the additional

       fixed term to as little as one year. I.C. § 35-50-2-10(f)(1).


[15]   Here, Robinson pled guilty to the non-substance offense of attempted

       residential entry and admitted to being an habitual substance offender. The

       trial court imposed a three (3) year sentence for the Class D felony non-


       Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017   Page 11 of 14
       substance conviction and a separate three (3) year sentence, with one and one-

       half (1½) years executed and one and one-half (1½) years suspended to

       probation, for the habitual substance offender adjudication.


[16]   The most problematic aspect of the trial court’s sentencing in this case is the

       fact that the law does not allow for an habitual substance offender enhancement

       to be attached to a non-substance offense.11 See I.C. § 35-50-2-10. We

       recognize that 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.” Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004)

       (quoting Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987)). Here, however,

       Robinson pled guilty under an open plea and did not agree to a specified

       sentence. Thus, the trial court was required to sentence Robinson in

       accordance with the prevailing law and statutes at that time. See Crider v.

       State, 984 N.E.2d 618, 625 (Ind. 2013) (explaining that “the ‘default rule’ for



       11
          We note that, had the underlying conviction properly been a substance offense, the trial court also
       erroneously entered a separate sentence for the habitual substance offender adjudication instead of enhancing
       the underlying offense, see Reffett, 844 N.E.2d at 1074, and it erroneously suspended half of the habitual
       substance offender enhancement. Compare Lindsey v. State, 877 N.E.2d 190, 194 (Ind. Ct. App. 2007)
       (holding that an “[habitual substance offender] enhancement must be executed and cannot be suspended to
       probation”), trans. denied; Howard, 873 N.E.2d at 690-91 (explaining that the prohibition against suspension of
       an habitual offender enhancement applied only to habitual offender enhancement, not the underlying
       conviction); Reffett, 844 N.E.2d at 1074 (holding that “an enhanced sentence under the habitual offender
       statute . . . may not be suspended”); and Devaney, 578 N.E.2d at 388-89 (pointing out that the “habitual
       substance offender statute require[d] that the court ‘shall’ sentence the defendant ‘to an additional fixed term’
       of between three and eight years” and reasoning that “permitting the suspension of an enhanced sentence
       imposed under this statute would defeat the clear intent of the legislature to punish and deter recidivistic
       conduct”) with Bauer, 875 N.E.2d at 749 (holding that suspension of a sentence under INDIANA CODE § 35-
       50-2-2 applied to the minimum sentence of the underlying conviction plus the minimum enhancement of the
       habitual substance offender enhancement); and Young, 901 N.E.2d at 626 (applying Bauer). We note that,
       under either line of cases, the trial court erred because it suspended half of the habitual substance offender
       enhancement only and not any portion of the underlying conviction.

       Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                       Page 12 of 14
       plea agreements is that sentences will be determined and imposed legally, where

       there is no agreement otherwise”). But, the parties’ plea agreement resulted in a

       situation under which the trial court had no legal or statutory authority to enter

       a sentence on the habitual substance offender adjudication.12 Nevertheless, the

       trial court imposed a fully-executed sentence for the Class D felony non-

       substance conviction and a separate, partially-suspended sentence for the

       habitual substance offender adjudication.


[17]   Because the trial court entered an illegal sentence, we must remand to the trial

       court for further proceedings. Generally, when the trial court errs in its

       sentencing on an habitual substance offender enhancement, we would remand

       for the trial court to resentence in accordance with the law. See, e.g., Young, 901

       N.E.2d at 626 (remanding for resentencing to correct illegal sentence and error

       with suspended habitual substance offender enhancement); Bauer, 875 N.E.2d

       at 747 (remanding case where the trial court erroneously treated an habitual

       substance offender enhancement as a separate sentence). Here, however, it was

       the plea agreement itself that was contrary to legal and statutory authority. A

       plea agreement is contractual in nature, and “a contract made in violation of a

       statute is void and unenforceable.” State v. Arnold, 27 N.E.3d 315, 321 (Ind. Ct.

       App. 2015) (quoting Lee, 816 N.E.2d at 38), reh’g denied, trans. denied.


       12
          As noted in the facts, this lack of sentencing authority was brought to the trial court’s attention by the
       prosecutor during the sentencing hearing when he stated that the trial court and the parties “need[ed] to
       revisit the whole thing unfortunately because our agreement was for [Robinson] to plead guilty to . . . either
       to Residential Entry and Habitual Offender or the Possession of Methamphetamine for instance and plead to
       the Habitual Substance Offender[.]” (Tr. 33). However, the trial court, apparently frustrated with Robinson
       for failing to appear at the PSI interview and the sentencing hearing, stated that it was “just not inclined to at
       this point to reopen this matter” and that it was “inclined to move on[.]” (Tr. 34).

       Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                        Page 13 of 14
       Accordingly, we vacate the sentence and plea agreement and remand with

       instructions to enter a new plea agreement and sentence that comply with the

       relevant statutory authority, or, if the parties cannot reach such an agreement,

       then the trial court should set the matter for further proceedings. See Arnold, 27

       N.E.3d at 322 n.4 (noting that a “defendant is not put in jeopardy by a void

       judgment and may be re-prosecuted on the charge”).


[18]   Reversed and remanded.13


       Baker, J., and Mathias, J., concur.




       13
          We recognize that claims of error regarding a guilty plea are usually reserved for post-conviction relief. See
       Johnson v. State, 734 N.E.2d 242, 247 (Ind. 2000). However, given the specific facts of this case—including
       the fact that the illegal sentence imposed in this case was a direct result of the guilty plea being entered
       contrary to statute and the State’s attempt during the sentencing hearing to have the trial court remedy the
       statutory problem with the guilty plea—we address the guilty plea in conjunction with our review of the
       legality of the sentence. Indeed, even if we were to remedy the sentencing anomaly by vacating the habitual
       substance offender enhancement, we would also vacate the plea agreement because it is clear from the record
       on appeal that eliminating the illegal provision would “frustrat[e] the basic purpose of the contract” and
       would change the sentence for which the parties had bargained. See Arnold, 27 N.E.3d at 322 (explaining
       that, where an habitual offender enhancement could not be eliminated from a plea agreement without
       frustrating the basic purpose of that agreement, the entire plea agreement also had to be vacated).

       Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017                       Page 14 of 14
