MEMORANDUM DECISION
                                                                     Apr 20 2015, 9:29 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                       Gregory F. Zoeller
Fort Wayne. Indiana                                       Attorney General of Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Zachery A. Doan,                                          April 20, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A03-1408-CR-302
        v.                                                Appeal from the
                                                          Allen Superior Court
State of Indiana,                                         The Honorable Frances C. Gull,
                                                          Judge
Appellee-Plaintiff                                        The Honorable Samuel R. Keirns,
                                                          Magistrate
                                                          Cause No. 02D04-1403-FA-14




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015        Page 1 of 11
[1]   Pursuant to an oral plea agreement, Zachery A. Doan was convicted of

      burglary1 as a Class A felony and robbery2 as a Class A felony. Doan now

      appeals, contending that the trial court violated the terms of his plea agreement

      when, at the time of sentencing, it reduced his burglary conviction from a Class

      A felony to a Class B felony and sentenced him to consecutive sentences.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In March 2014, eighty-year-old N.B. answered a knock at her door to find her

      neighbor’s nephew Doan standing there. At Doan’s request, N.B. reluctantly

      allowed him to use her bathroom. As he left, Doan said that his car was out of

      gas. N.B. told Doan he could use the gas can in her garage, but a few minutes

      later Doan returned saying that the gas can was broken. When Doan asked to

      use her phone, N.B. refused to allow Doan inside. Doan pounded on N.B.’s

      front door and demanded that she give him a ride, but N.B. told Doan to go to

      his relative’s house next door. Ultimately, Doan broke down N.B.’s back door,

      attacked her, and hit her repeatedly in the face. N.B. lost consciousness. Doan

      stole $100 in cash, N.B.’s cell phone, and her identification cards. As a result of




      1
        See Ind. Code § 35-43-2-1. We note that, effective July 1, 2014, a new version of the criminal statutes at
      issue in this case were enacted. Because Doan committed his crimes prior to July 1, 2014, we will apply the
      statutes in effect at the time he committed his crimes.
      2
          See Ind. Code § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015             Page 2 of 11
      Doan’s attack, N.B. suffered multiple fractures to her face, lost one eye

      completely, and lost vision in both of her eyes.


[4]   Doan was charged with: Count I, burglary of a dwelling resulting in bodily

      injury as a Class A felony; Count II, robbery resulting in serious bodily injury as

      a Class A felony; and Count III, aggravated battery as a Class B felony. The

      same bodily injury to N.B. was used to enhance Counts I and II to Class A

      felonies. About two weeks before trial, the trial court held a guilty plea hearing

      and the following exchange occurred between the trial judge and Doan:

              Q. You’re pleading guilty to two (2) class A felonies. The range of
              penalty is twenty (20) years to fifty (50) years. There is an advisory
              sentence of thirty (30) years, and a fine of up to ten thousand dollars
              ($10,000.00). Do you understand the range of the penalties and
              possible fines?
              A. Yes your honor.
              Q. Do you understand that if you have a prior conviction the prior
              conviction may increase the sentence or prevent the Court from
              suspending the sentence?
              A. Yes Your Honor.
              Q. Do you understand that I will decide whether the terms of prison
              shall be served concurrently or consecutively?
              A. Yes Your Honor.
      Guilty Plea Tr. at 8. The State clarified that Doan was pleading guilty only to

      Counts I and II, “Your Honor, at sentencing the State will agree to dismiss

      Count III.” Id. at 7.


[5]   Doan pleaded guilty to Class A felony burglary and Class A felony robbery and

      a factual basis was established. Guilty Plea Tr. at 7. The trial court found that


      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015   Page 3 of 11
      Doan understood the nature of the charges against him and the possible

      sentences and fines thereon, and accepted Doan’s guilty plea. 3 Id. at 13. At the

      request of the State, and in recognition that the double enhancement created a

      double jeopardy concern, the trial court reduced Doan’s Class A felony

      burglary conviction to a Class B felony conviction and sentenced him to twenty

      years for Class B felony burglary and fifty years for Class A felony robbery.

      The trial court ordered the sentences to run consecutive to each other for an

      aggregate executed sentence of seventy years. Doan was also ordered to pay

      restitution in the amount of $21,470.00. As promised in the plea agreement, the

      trial court granted the State’s motion to dismiss Count III. Sentencing Tr. at 40.

      Doan now appeals.


                                        Discussion and Decision
[6]   Doan contends that the trial court violated the terms of his plea agreement

      when, at the time of sentencing, it impermissibly reduced his burglary

      conviction from a Class A felony to a Class B felony, and ordered that his

      sentences run consecutive to each other.4 Doan is not appealing the




      3
       The trial court did not order the presentence investigation report until after it had accepted Doan’s guilty
      plea. Guilty Plea Tr. at 13. We remind the trial court that “[i]n accepting a felony guilty plea[,] the preferred
      procedure is to defer acceptance of a guilty plea and plea agreement and entry of judgment until the court has
      had the opportunity to review the presentence report.” Benson v. State, 780 N.E.2d 413, 420 n.5 (Ind. Ct.
      App. 2002), trans. denied; see Malenchik v. State, 928 N.E.2d 564, 568 (Ind. 2010) (for all felonies, except Class
      D felonies, trial court may not accept defendant’s guilty plea or sentence defendant until it considers written
      pre-sentence report prepared by probation officer).
      4
        Doan’s plea agreement was not in writing; instead, it was orally entered into the record during the guilty
      plea hearing. We note that, while a plea agreement in a misdemeanor case may be submitted orally to the
      court, “[n]o plea agreement may be made by the prosecuting attorney to a court on a felony charge except:
      (1) in writing; and (2) before the defendant enters a plea of guilty.” Ind. Code § 35-35-3-3. Doan made no

      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015                 Page 4 of 11
      appropriateness of his sentence under Trial Rule 7(B). Instead, he contends that

      it was error for the trial court to reduce his Class A felony conviction in order to

      remedy any double jeopardy violation, thereby allowing the trial court to order

      Doan’s sentences to run consecutive to each other.


[7]   We first note that Doan may have waived this issue. During the sentencing

      hearing, the State requested that Count I be reduced to a Class B felony

      burglary conviction to remove the element of the underlying injury and, thus,

      remove a double jeopardy violation. The trial court asked defense counsel if he

      had any response. Instead of addressing the specific issue of the reduction of

      the felony conviction, defense counsel merely argued that Doan’s sentences

      should run concurrently because the two events constituted “one continuous

      act.” Sentencing Tr. at 31. Because the State does not contend that Doan has

      waived his right to contest the trial court’s act of modifying the plea agreement

      to reduce the “A” felony conviction to a “B” felony conviction, we address

      Doan’s argument.5




      objection to the form of the plea agreement, and the trial court accepted Doan’s oral plea. While the nature
      of Doan’s plea has no impact on the resolution of the issue before us, we emphasize the need for plea
      agreements on felony charges to be in writing.
      5
        Citing to Mapp v. State, the State notes that Doan has waived his right to challenge his plea on the grounds
      that it constitutes a double jeopardy violation. 770 N.E.2d 332, 334 (Ind. 2002) (holding defendant waived
      right to challenge plea agreement on double jeopardy grounds and there is no exception even for “facially
      duplicative” charges). While we agree with this statement, we note that Doan is not directly challenging his
      guilty plea; instead he is challenging the trial court’s act of modifying his plea agreement to reduce his
      burglary conviction from a Class A felony to a Class B felony.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015               Page 5 of 11
[8]   “Our courts have long held that plea agreements are in the nature of contracts

      entered into between the defendant and the State.” Grider v. State, 976 N.E.2d

      783, 785 (Ind. Ct. App. 2012) (citing Lee v. State, 816 N.E.2d 35, 38 (Ind.

      2004)).

              A plea agreement is contractual in nature, binding the defendant, the
              [S]tate, and the trial court. The prosecutor and the defendant are the
              contracting parties, and the trial court’s role with respect to their
              agreement is described by statute: If the court accepts the plea
              agreement, it shall be bound by its terms.
      Id. at 785-86 (quoting Lee, 816 N.E.2d at 38 (citation omitted)). Accordingly,

      “we will look to principles of contract law when construing plea agreements to

      determine what is reasonably due to the defendant.” Id. at 786. The primary

      goal of contract interpretation is to give effect to the parties’ intent. Id. (citing

      Griffin v. State, 756 N.E.2d 572, 574 (Ind. Ct. App. 2001), trans. denied).


[9]   During the guilty plea hearing, the trial court confirmed with Doan that he was

      not under the influence of drugs or alcohol, that he knew his rights and the

      rights he was giving up by pleading guilty, and that he had not been forced or

      threatened to plead guilty. Guilty Plea Tr. at 5-6, 9. The trial court then

      confirmed with Doan that he understood: (1) the State would dismiss Count III

      at sentencing; (2) he was pleading guilty to two Class A felonies, with the range

      of sentencing for each being twenty years to fifty years; (3) the trial court would

      decide whether the prison sentences would be served concurrently or

      consecutively; and (4) if Doan had a prior conviction, it could increase the

      sentence or prevent the court from suspending the sentence. Id. at 8.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015   Page 6 of 11
[10]   As the hearing continued, the trial court clarified that Doan was pleading guilty

       to knowingly or intentionally breaking and entering the dwelling of N.B. with

       intent to commit the felony of theft therein, and that said act resulted in serious

       bodily injury to N.B. Id. at 7. Additionally, Doan was pleading guilty to

       knowingly or intentionally taking property from the presence of N.B. by using

       or threatening the use of force or by putting N.B. in fear, and that said act

       resulted in serious bodily injury to N.B. Id. The trial court accepted Doan’s

       plea of guilty to both Class A felony burglary and Class A felony robbery. Id. at

       13.


[11]   On appeal, Doan does not deny that he committed the offenses to which he

       pleaded guilty. In fact, Doan’s guilty plea was a confession of guilt regarding

       all the incriminating facts alleged. See McWhorter v. State, 945 N.E.2d 1271,

       1273 (Ind. Ct. App. 2011) (“A valid guilty plea is a confession of guilt made

       directly to a judicial officer and necessarily admits the incriminating facts

       alleged.”), trans. denied. Instead, Doan maintains that “the State at some point

       in time, realized the dilemma posed by the plea agreement,” and that “[i]n an

       effort to resolve this dilemma, the State, at sentencing asked the Court to

       change the conviction for Burglary from an ‘A’ felony to a ‘B’ felony to avoid

       the obvious problem.” Appellant’s Br. at 6. Doan maintains that by conceding

       to the State’s request, the trial court removed the double jeopardy violation, and

       subjected Doan to the maximum sentence. Id.


[12]   By arguing that the trial court’s “modification” subjected him to the maximum

       sentence, Doan suggests that he consciously decided to plead guilty to two

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015   Page 7 of 11
       crimes that were enhanced to Class A felonies on the basis of the same

       underlying injury, knowing that the trial court could not order these sentences

       to run consecutively. Therefore, when the trial court reduced the Class A

       felony burglary to Class B felony burglary, Doan was deprived of the benefit of

       his plea bargain. We remind Doan that in his plea agreement, he granted the

       trial court the discretion to sentence him to the maximum sentence allowed.

       The trial court’s imposition of the maximum sentence allowed did not deny

       Doan the “benefit” of his plea agreement.


[13]   As Doan correctly notes, once a court accepts a plea agreement, the court is

       bound by the terms of the agreement. Ind. Code § 35-35-3-3(e); Ennis v. State,

       806 N.E .2d 804, 809 (Ind. Ct. App. 2004) (citing Bennett v. State, 802 N .E.2d

       919, 921-22 (Ind. 2004)). “By the same token, it is also the general, if not

       unanimous, rule that a trial court has the power to vacate an illegal sentence

       and impose a proper one, even if doing so results in an increased sentence after

       the erroneous sentence has been partially executed and regardless of whether

       the sentencing error occurred following a trial or a guilty plea.” Id. (internal

       quotation marks omitted). Although Doan pleaded guilty to two Class A

       felonies, the trial court was still obligated to impose a sentence that did not

       punish Doan twice for the injury sustained by N.B.


[14]   Our court’s opinion in Scott v. State, 986 N.E.2d 292 (Ind. Ct. App. 2013)

       informs our decision.

               [T]he State charged Scott with Count I, Class B felony operating a
               vehicle with a BAC of at least 0.18 g/dl causing death; Count II, Class

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015   Page 8 of 11
               B felony resisting law enforcement causing death; Count III, Class C
               felony reckless homicide; and Count IV, Class C felony criminal
               recklessness. On August 21, 2007, Bruce Parent entered his
               appearance as Scott’s trial counsel. . . . Scott pled guilty to all counts
               without benefit of a plea agreement.
               On May 9, 2008, the trial court accepted Scott’s pleas to Counts I and
               II but not for Counts III and IV, finding that Counts III and IV were
               subsumed into Counts I and II. The trial court sentenced Scott to
               fifteen years of incarceration each for Counts I and II, the sentences to
               be served consecutively . . . . Scott did not appeal his sentence.
               On September 19, 2011, Scott filed a PCR petition [alleging] that he
               received ineffective assistance of trial counsel and that the imposition
               of consecutive sentences for Counts I and II constituted fundamental
               error. During the hearing on Scott’s PCR petition, Parent testified
               regarding the advice he had given Scott. Parent testified that he
               advised Scott that he would only be sentenced for Counts I and II and
               that the maximum sentence he could receive would be thirty years.
       Scott, 986 N.E.2d at 293-94. The post-conviction court denied Scott’s PCR

       petition.


[15]   On appeal, this court found that Scott’s trial counsel was ineffective when he

       advised Scott, in connection with his plea agreement, that the maximum

       sentence Scott could receive was thirty years. The court reasoned as follows:

               In Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002), the Indiana
               Supreme Court held generally that the same harm cannot be used to
               elevate multiple convictions. See Pierce, 761 N.E.2d. at 830 (“[W]e
               have long adhered to a series of rules of statutory construction and
               common law that are often described as double jeopardy, but are not
               governed by the constitutional test set forth in Richardson [v. State, 717
               N.E.2d 32 (Ind. 1999)]. Among these is the doctrine that where a
               burglary conviction is elevated to a Class A felony based on the same
               bodily injury that forms the basis of a Class B robbery conviction, the
               two cannot stand.”). The remedy for such a violation is to reduce one
               of the convictions to the highest level it can be without being enhanced
               by the same harm used to enhance another conviction. See id. . . .
       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015   Page 9 of 11
               Carter v. State, 424 N.E.2d 1047 (Ind. Ct. App. 1981), and Dawson v.
               State, 612 N.E.2d 580 (Ind. Ct. App. 1993), although decided before
               Pierce, are consistent with it. In those cases, this court addressed the
               question of whether one could be convicted of both operating a vehicle
               while intoxicated causing death (“OWI death”) and reckless homicide
               in a case involving one death. In Carter, this court held that one could
               not be sentenced for both where there was one homicide. 424 N.E.2d
               at 1048. The Dawson court refined the Carter holding, concluding that
               the proper remedy in such cases (at least where there was no double
               jeopardy violation) was to reduce the OWI death conviction to mere
               OWI, thereby ensuring that Dawson was not being punished twice for
               the same death. 612 N.E.2d at 585.
               We conclude that Scott’s two convictions clearly fall within the
               general rule announced in Pierce and are analogous to the convictions
               addressed in Dawson and Carter. The fact of Mitchell’s death was used
               to enhance both of Scott’s convictions to Class B felonies, without
               which enhancement Scott’s BAC conviction would have been a Class
               A misdemeanor and his resisting law enforcement conviction would
               have been a Class D felony. Pursuant to Pierce and Dawson, we
               conclude that Scott’s resisting law enforcement conviction would have
               had to have been reduced to a Class D felony to avoid punishing him
               twice for Mitchell’s death, had Scott gone to trial. Therefore, the
               lengthiest sentence Scott could have received was twenty-three years.
               Scott’s trial counsel’s performance was deficient for failing to inform
               Scott of this and informing him, instead, that his maximum sentence
               could be thirty years.
       Scott, 986 N.E.2d 295-96.
[16]   Each of Doan’s crimes includes evidence or facts not essential to the other.

       Doan’s admission that he broke and entered the dwelling of N.B. with intent to

       commit a felony therein supports burglary and his admission that took N.B.’s

       money, cell phone, and identification cards by putting her in fear supports the

       robbery. Doan conceded that each of these crimes constituted Class A felonies.

       N.B.’s serious bodily injury, however, can only support one enhancement.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015   Page 10 of 11
[17]   Here, Doan’s convictions clearly fall within the general rule discussed in Scott

       and Pierce. “The remedy for such a violation is to reduce one of the convictions

       to the highest level it can be without being enhanced by the same harm used to

       enhance another conviction.” Scott, 986 N.E.2d at 295. The fact of N.B.’s

       bodily injury was used to enhance both his burglary and his robbery

       convictions, without which the highest level of Doan’s burglary of N.B.’s

       dwelling would have been a Class B felony and the highest level of his robbery

       would have been a Class C felony. Pursuant to Scott and Pierce, by keeping

       robbery as a Class A felony, on the basis of injuries sustained to N.B., the trial

       court would have had to sentence Doan for Class B felony burglary to avoid

       punishing him twice for N.B.’s serious bodily injury, as it would have done had

       Doan gone to trial. Therefore, the lengthiest sentence Doan could have

       received for his Class B felony burglary and his Class A felony robbery were

       consecutive sentences of twenty years and fifty years, respectively, for an

       aggregate of seventy years. Accordingly, the trial court did not violate the terms

       of Doan’s plea agreement when it sentenced Doan in a manner so as to avoid

       punishing him twice for N.B.’s injury.


[18]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015   Page 11 of 11
