                                                                             Feb 27 2015, 6:45 am




      ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Gregory F. Zoeller                                          Bart M. Betteau
      Attorney General of Indiana                                 Betteau Law Office, LLC
                                                                  New Albany, Indiana
      Justin F. Roebel
      Deputy Attorney General
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          February 27, 2015

      Appellant-Respondent,                                      Court of Appeals Case No.
                                                                 22A05-1408-CR-387
              v.                                                 Appeal from the Floyd Circuit Court
                                                                 The Honorable J. Terrence Cody,
                                                                 Judge
      John J. Arnold,                                            Case No. 22C01-1212-FA-2843
      Appellee-Defendant




      Crone, Judge.


                                              Case Summary
[1]   The State of Indiana appeals the trial court’s grant of John J. Arnold’s motion

      to set aside his habitual offender enhancement. The State contends that the trial

      court erred in refusing to vacate Arnold’s entire plea agreement when it vacated

      his habitual offender enhancement. We conclude that Arnold’s motion to set

      Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015                   Page 1 of 14
      aside habitual offender enhancement should be treated as a petition for

      postconviction relief and that the trial court’s judgment should be reviewed as

      an award of postconviction relief. We also conclude that the vacatur of

      Arnold’s habitual offender enhancement would frustrate the basic purpose of

      the plea agreement, and therefore the trial court erred in not setting the entire

      agreement aside. Accordingly, we affirm in part, reverse in part, and remand.


                                  Facts and Procedural History
[2]   In December 2012, the State charged Arnold with class A felony attempted

      murder, three counts of class C felony criminal recklessness causing serious

      bodily injury by means of a deadly weapon, and being a habitual offender. The

      State amended the information to add two counts of class D felony failure to

      stop after an accident resulting in serious bodily injury or death. Apparently,

      the charges were based on an incident in which Arnold was driving his truck,

      hit or ran over three individuals, and fled the scene. Tr. at 44.


[3]   In August 2013, the parties entered into a plea agreement wherein Arnold

      agreed to plead guilty to three counts of class C felony criminal recklessness

      (Counts 2, 3, and 4) and to being a habitual offender (Count 8). Arnold agreed

      to concurrent sentences of eight years each for the class C felonies and to a

      sentence enhancement of twelve years for being a habitual offender. Pursuant

      to the plea agreement, the habitual offender sentence enhancement was




      Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015   Page 2 of 14
      attached to all three criminal recklessness convictions.1 Thus, both the State

      and Arnold agreed to an aggregate sentence of twenty years. The State agreed

      to dismiss all remaining charges.


[4]   At the guilty plea hearing in September 2013, Arnold acknowledged that he had

      three prior felony convictions, two of which were prior unrelated felony

      convictions as required under Indiana Code Section 35-50-2-8 to support his

      habitual offender status. One of the felonies was a 2007 class C felony

      conviction for intimidation in Clark County. The trial court accepted the plea

      agreement and entered a judgment sentencing Arnold according to its terms.


[5]   In the meantime, however, Arnold had filed a petition for postconviction relief

      in Clark County for his 2007 intimidation conviction. His petition was granted

      and that conviction was vacated. In December 2013, Arnold filed in this case a

      motion to set aside habitual offender enhancement because his 2007 Clark

      County conviction had been vacated. The trial court held a hearing on the

      motion.


[6]   The trial court granted Arnold’s motion to set aside the habitual offender

      enhancement and set another hearing for the parties to present further argument




      1
        Arnold argues that the habitual offender enhancement was attached only to counts 2 and 4. We disagree.
      The sentencing section of the plea agreement clearly states, “Concurrent 2, 3, 4 enhanced by the Habitual
      Offender Count.” Appellant’s App. at 14. Also, the trial court’s sentencing order states, “The sentences in
      Counts 2, 3, and 4 are enhanced pursuant to Defendant’s Habitual Offender Status under Count 8 by a
      period of 12 years.” Id. at 18. Attaching the habitual offender enhancement to all three convictions was
      improper. As we examine further in our discussion and decision section, a habitual offender enhancement
      must be attached to the sentence of a single conviction.

      Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015                     Page 3 of 14
      on whether the rest of the plea agreement should be set aside. Following the

      hearing, the trial court reaffirmed its order setting aside only the habitual

      offender enhancement. The State appeals.


                                      Discussion and Decision

          Section 1 – Arnold’s motion to set aside habitual offender
         enhancement will be treated as a request for postconviction
                                   relief.
[7]   As an initial matter, the parties dispute the procedural posture of this case.

      Arnold argues that his motion to set aside habitual offender enhancement was

      not a request for postconviction relief and that the trial court would only have

      the authority to set aside his plea agreement in postconviction proceedings.

      The State argues that Arnold’s motion, whatever its title, must be treated as a

      petition for postconviction relief. We agree with the State.


[8]   “Generally, a trial judge has no authority over a defendant after he or she

      pronounces sentence. Any continuing jurisdiction after final judgment has been

      pronounced must either derive from the judgment itself or be granted to the

      court by statute or rule.” State v. Fulkrod, 735 N.E.2d 851, 852 (Ind. Ct. App.

      2000), aff’d, 753 N.E.2d 630 (Ind. 2001). Arnold fails to identify any statute or

      rule establishing a procedure for a motion to set aside a habitual offender

      enhancement based on the vacatur of an underlying conviction. Although

      Indiana Code Section 35-38-1-15 permits a convicted person to challenge an

      erroneous sentence, this statute applies to instances where the sentence “is

      erroneous on its face.” Koontz v. State, 975 N.E.2d 846, 848 (Ind. Ct. App.
      Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015   Page 4 of 14
       2012), aff’d on reh’g, 983 N.E.2d 194 (2013). Our supreme court has emphasized

       that “a motion to correct sentence may only be used to correct sentencing errors

       that are clear from the face of the judgment imposing the sentence in light of the

       statutory authority.” Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004).

       “Claims that require consideration of the proceedings before, during, or after

       trial may not be presented by way of a motion to correct sentence.” Id.

       Arnold’s motion did not present a claim of error that was clear on the face of

       the trial court’s judgment following his guilty plea.


[9]    In fact, another panel of this Court specifically considered the appropriate

       method by which to challenge a habitual offender enhancement when an

       underlying conviction has been set aside and concluded that a postconviction

       proceeding is the proper route. Poore v. State, 613 N.E.2d 478, 480 (Ind. Ct.

       App. 1993). In so holding, the Poore court clarified that Indiana Code Section

       35-38-1-15 should be limited to those instances where the sentence is facially

       defective; that is, when a sentence “violates express statutory authority at the

       time the sentence is pronounced.” Id. Furthermore, we observe that claims of

       error regarding guilty pleas are governed by the postconviction rules. Indiana

       Code Section 35-35-1-4(c) provides that a motion to vacate judgment and

       withdraw guilty plea to correct manifest injustice “shall be treated by the court

       as a petition for postconviction relief under the Indiana Rules of procedure for

       Postconviction Remedies.”


[10]   Arnold contends that he followed the same procedure used by the defendants in

       Coble v. State, 500 N.E.2d 1221 (Ind. 1986), and Olinger v. State, 494 N.E.2d 310

       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015   Page 5 of 14
       (Ind. 1986). In both cases, a jury found the defendant guilty of a felony and of

       being a habitual offender. In both cases, one of the underlying convictions for

       the habitual offender finding was vacated and each defendant filed a motion to

       have the habitual offender enhancement set aside. Each defendant successfully

       obtained the vacatur of his habitual offender enhancement while the felony to

       which it attached remained unaffected. Olinger, 494 N.E.2d at 311; Coble, 500

       N.E.2d at 1222-23. The issues raised on appeal in those cases are completely

       unrelated to the one here, but Arnold argues that because he, like Olinger and

       Coble, filed a motion to set aside habitual offender enhancement rather than a

       petition for postconviction relief, he is entitled to seek vacatur only of his

       habitual offender enhancement and leave the remainder of his plea agreement

       intact.


[11]   In light of Robinson and Poore, we conclude that Olinger and Coble are outdated

       with respect to procedure and that Arnold’s reliance on them for the

       appropriate procedure is misplaced. We conclude that Arnold’s attempt to

       have his habitual offender enhancement set aside was improperly brought by a

       motion and should have been brought by a petition for postconviction relief.

       Furthermore, Arnold’s argument that he is entitled to seek vacatur only of his

       habitual offender enhancement because he filed a motion rather than seeking

       postconviction relief is unavailing because it is based entirely on Olinger and

       Coble.


[12]   We acknowledge that Sections 2 and 3 of Indiana Postconviction Rule 1

       contain requirements for filing and content that Arnold did not follow.

       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015   Page 6 of 14
       However, Arnold’s motion was heard and ruled on, and therefore in the

       interests of judicial economy we will treat Arnold’s motion to set aside habitual

       offender enhancement as a request for postconviction relief and review the trial

       court’s judgment accordingly.


         Section 2 – The trial court erred in failing to vacate the plea
               agreement when it vacated the habitual offender
                                 enhancement.
[13]   The State contends that the trial court erred in failing to set aside the plea

       agreement and resulting convictions when it set aside Arnold’s habitual

       offender enhancement. Generally, we review the award of postconviction relief

       under a clearly erroneous standard pursuant to Indiana Trial Rule 52(A)(3).

       State v. Hollin, 970 N.E.2d 147, 150 (Ind. 2012). In this case, however, the facts

       are undisputed and the question raised by the State is purely a question of law.

       See State v. Metcalf, 852 N.E.2d 585, 588 (Ind. Ct. App. 2006) (“‘[A]n issue

       presented on appeal is a pure question of law when the question does not

       require reference to extrinsic evidence, inferences drawn from that evidence, or

       the consideration of credibility questions.’”) (quoting Bader v. Johnson, 732

       N.E.2d 1212, 1216 (Ind. 2000), trans. denied). We review questions of law de

       novo, giving no deference to the trial court’s legal conclusions. Id.


[14]   We note that the State does not challenge the trial court’s decision to set aside

       Arnold’s habitual offender enhancement. Although the factual basis supporting

       the habitual offender enhancement included three prior felony convictions

       where only two were required, the State concedes that the two remaining prior

       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015   Page 7 of 14
       felony convictions cannot support a habitual offender enhancement because

       they are not “unrelated” for purposes of Indiana Code Section 35-50-2-8.


[15]   In addition, the State recognizes this Court’s decision in State v. Jones, 819

       N.E.2d 877 (Ind. Ct. App. 2004), trans. denied (2006). There, Jones and the

       State entered into a plea agreement wherein Jones pled guilty to class B felony

       attempted robbery, class B felony robbery, class C felony robbery, and to being

       a habitual offender. Thereafter, one of the convictions underlying Jones’s

       habitual offender adjudication was vacated. He filed an amended petition for

       postconviction relief, contending that his habitual offender status must be

       vacated. The postconviction court granted Jones’s petition and set aside

       Jones’s entire plea agreement, the resulting convictions, and the habitual

       offender enhancement. The State appealed, arguing that Jones was not entitled

       to the requested relief because (1) “Jones admitted to his status as a habitual

       offender rather than being convicted, [and therefore] he must prove that he is

       not a habitual offender by proving that he did not commit the predicate

       offenses;” and “(2) the vacation of the prior felony conviction does not negate

       the fact that at the time Jones admitted his status, the underlying convictions

       existed.” Id. at 878-79. The Jones court rejected both these arguments. The

       Jones court noted that “[t]he habitual offender statute states plainly that ‘a

       conviction does not count for purposes of this subsection if ... it has been set

       aside.’” Id. at 881 (quoting Ind. Code § 35-50-2-8(b)(1)). The Jones court

       concluded that Indiana Code Section 35-50-2-8 applied to a habitual offender

       adjudication resulting from a plea agreement. Id.


       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015   Page 8 of 14
[16]   The State’s sole argument on appeal is that the trial court erred in failing to

       vacate the entire plea agreement. Another panel of this Court addressed this

       issue in Boykin v. State, 702 N.E.2d 1105 (Ind. Ct. App. 1998). Pursuant to a

       plea agreement, Boykin pled guilty to auto theft, resisting law enforcement, and

       being a habitual offender (“Plea I”). Boykin’s habitual offender enhancement

       was attached to his conviction for auto theft. In a separate plea agreement,

       Boykin pled guilty to robbery (“Plea II”) and agreed to a fifteen-year sentence to

       be served concurrent to the sentence imposed pursuant to Plea I. Later, one of

       the convictions underlying Boykin’s habitual offender enhancement was set

       aside, and he filed a successive petition for postconviction relief. The

       postconviction court vacated the habitual offender enhancement but refused to

       vacate Boykin’s plea agreement.


[17]   Boykin appealed, arguing that the postconviction court erred by not vacating

       his entire plea agreement. The Boykin court concluded that vacatur of his

       habitual offender enhancement mandated that the conviction to which it

       attached also be vacated. The Boykin court reasoned that by vacating the

       habitual offender enhancement, Boykin’s sentence for auto theft was altered

       because the “habitual offender statute does not set forth a separate offense;

       rather, an habitual offender conviction is an enhancement of the sentence for

       [the conviction to which it is attached].” Id. at 1107 (citing Ind. Code § 35-50-2-

       8). The Boykin court recognized that courts are prohibited from increasing or

       decreasing the length of a sentence after accepting a plea agreement. Id. (citing

       Ind. Code § 35-35-3-3(e) (“If the court accepts a plea agreement, it shall be


       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015   Page 9 of 14
       bound by its terms.”)). Therefore, the Boykin court held, “[O]nce an habitual

       offender conviction is vacated, the sentence for [the conviction to which it is

       attached] has been altered, and therefore, it must also be vacated.” Id. (citing

       Roe v. State, 598 N.E.2d 586, 588 (Ind. Ct. App. 1992), trans. denied). The

       Boykin court concluded that the remainder of Boykin’s plea agreement

       remained effective because the vacatur of the habitual offender enhancement

       “did not alter any of the other sentences contained in the plea agreement.” Id.

       The Boykin court noted that “the final sentence under Plea I will be three years,

       to run concurrently with a fifteen year sentence under Plea II. Thus, Boykin's

       original sentence, a total of fifteen years, will remain unchanged following this

       appeal.” Id. at n.11.


[18]   Pursuant to Boykin, the vacatur of Arnold’s habitual offender enhancement

       impermissibly alters the sentence for the conviction to which the enhancement

       was attached, and therefore that conviction must also be vacated.2 Here, the

       plea agreement erroneously attached the habitual offender enhancement to all

       three criminal recklessness convictions. Indiana Code Section 35-50-2-8

       provides,

               Habitual offender is a status that results in an enhanced sentence. It is
               not a separate crime and does not result in a consecutive sentence. The
               court shall attach the habitual offender enhancement to the felony




       2
         Arnold contends that Boykin does not require that anything other than his habitual offender enhancement
       be vacated because Boykin sought relief through postconviction proceedings, whereas Arnold filed a motion
       to set aside habitual offender enhancement. This argument is unavailing because, as discussed in the
       previous section, Arnold’s motion should have been treated as a petition for postconviction relief.

       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015                  Page 10 of 14
               conviction with the highest sentence imposed and specify which felony
               count is being enhanced.

[19]   Therefore, a habitual offender enhancement must be attached to a single

       conviction. However, we can safely ignore the attachment problem in the plea

       agreement because, as discussed below, we conclude that the entire plea

       agreement must be vacated. Although we reach a different conclusion from

       that reached in Boykin, we do so based on an argument that was neither

       presented nor discussed in Boykin.


[20]   The State argues that the plea agreement is a contract, and pursuant to contract

       principles, the vacatur of the habitual offender enhancement requires the

       vacatur of the entire plea agreement under these circumstances. Arnold does

       not address this argument. “An appellee’s failure to respond to an issue raised

       by an appellant is akin to failure to file a brief.” Atchley v. State, 730 N.E.2d 758,

       766 (Ind. Ct. App. 2000), trans. denied. In such situations, the appellant will win

       reversal by establishing prima facie error, i.e., “error that is evident at first sight,

       on first appearance, or on the face of it.” Id.


[21]   Indiana courts have long recognized that

               a plea agreement is contractual in nature, binding the defendant, the
               state 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 a plea
               agreement, it shall be bound by its terms.” Ind. Code. Ann. § 35-35-3-
               3(e) (West Supp. 1993).




       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015   Page 11 of 14
       Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994) (citation and quotation

       marks omitted). Our supreme court has explained,

               It is true that as a general proposition a contract made in violation of a
               statute is void and unenforceable. However it is also true that if a
               contract contains an illegal provision that can be eliminated without
               frustrating the basic purpose of the contract, the court will enforce the
               remainder of the contract. [T]he fact that one part of an agreement
               may be void or unenforceable does not render the entire agreement
               void, if the prohibited and valid provisions are severable, and if the
               parties would have entered the bargain absent the illegal portion of the
               original agreement. These principles apply even where the illegal or
               otherwise objectionable provision is prohibited by statute.

       Lee v. State, 816 N.E.2d 35, 38-39 (Ind. 2004) (citations, quotation marks, and

       parentheses omitted).


[22]   Here, the State and Arnold negotiated a plea agreement in which Arnold agreed

       to plead guilty to three class C felony offenses and being a habitual offender and

       to receive a twenty-year sentence in exchange for the State dismissing the three

       remaining charges against him which included a class A felony attempted

       murder charge. At the vacatur hearing, the State argued that the habitual

       offender enhancement was “central” to the State’s agreement to forgo trial on

       the class A felony attempted murder charge:

               [T]he State didn’t agree to an eight year sentence. What this
               Defendant did was a horrific act. He got in a truck. He ran over
               people. He backed up, ran over more people. Backed up and tried to
               run over another person. He has a violent history. Eight years was
               not something that the State of Indiana was going to agree - agree to
               having - to resolve this case. The Court well remembers it was set for
               trial and the State was prepared and willing to go to trial. The Defense


       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015     Page 12 of 14
               did not want to go to trial. The Defendant did not want to try these
               charges.

       Tr. at 44-45.


[23]   We are persuaded by the State’s argument. The State dismissed a class A

       felony attempted murder charge in exchange for Arnold’s agreement to serve a

       twenty-year sentence. The class A felony exposed Arnold to a thirty-year

       advisory sentence and a fifty-year maximum sentence. Ind. Code § 35-50-2-4.

       In vacating the habitual offender enhancement, the trial court changed the

       sentence the parties had bargained for from twenty years to eight.3 We cannot

       say that the State would have entered the agreement without the habitual

       offender enhancement. We conclude that the habitual offender enhancement

       cannot be eliminated without frustrating the basic purpose of the contract.

       Therefore, we conclude that the State has presented a prima facie case that the

       trial court erred in failing to set aside Arnold’s plea agreement when it vacated

       the habitual offender enhancement.


[24]   Accordingly, we affirm the trial court’s decision to vacate Arnold’s habitual

       offender enhancement, reverse its decision to keep the remainder of the plea

       agreement intact, and remand with instructions to vacate the plea agreement




       3
         In Boykin, the vacatur of the conviction to which the habitual offender enhancement was attached did not
       alter the aggregate sentence the parties had agreed on. 702 N.E.2d at 1107 n.11.

       Court of Appeals of Indiana | Opinion 22A05-1408-CR-387 | February 27, 2015                   Page 13 of 14
       and its resulting convictions and for further proceedings consistent with this

       opinion.4


[25]   Affirmed in part, reversed in part, and remanded.


       Friedlander, J., and Kirsch, J., concur.




       4
         The prohibition against double jeopardy does not bar the State from refiling the charges against Arnold.
       “[A] defendant is not put in jeopardy by a void judgment and may be re-prosecuted on the charge.” Niece v.
       State, 456 N.E.2d 1081, 1084 (Ind. Ct. App. 1983); see also Boykin, 702 N.E.2d at 1107 n. 10.

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