MEMORANDUM DECISION                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                                             08/31/2017, 9:42 am
this Memorandum Decision shall not be                                                       CLERK
                                                                                        Indiana Supreme Court
regarded as precedent or cited before any                                                  Court of Appeals
                                                                                             and Tax Court
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
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott Ian McClendon,                                     August 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1703-CR-459
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Sean M. Persin,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D05-1608-F6-676



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-459 | August 31, 2017              Page 1 of 8
                                             Case Summary
[1]   Scott Ian McClendon appeals his four-year aggregate sentence after pleading

      guilty to level 6 felony conspiracy to commit theft and level 6 felony conspiracy

      to commit forgery. He claims that the trial court violated a 365-day sentence

      cap for the conspiracy to commit forgery count contained in his written plea

      agreement. Finding that his sentence on that count exceeded the cap contained

      in the original written plea agreement, that the parties and trial court intended

      to amend the plea agreement’s sentence caps, but that the parties did not

      effectively amend the written plea agreement, we vacate McClendon’s

      convictions and sentence and remand for proceedings consistent with this

      decision.


                                 Facts and Procedural History
[2]   On April 13, 2015, McClendon drove Grace Wright from Chicago to West

      Lafayette. The two agreed that Wright would steal some purses and wallets

      from different Purdue University campus buildings and use the credit/debit

      cards to make purchases. Once on campus, McClendon remained in the

      vehicle while Wright stole purses and wallets containing credit cards, debit

      cards, and cash. Immediately thereafter, the two went to Lafayette area stores

      and restaurants, and McClendon stayed in the vehicle while Wright purchased

      more than $2000 in gift cards and merchandise using the stolen credit and debit

      cards. McClendon received a portion of the spoils.




      Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-459 | August 31, 2017   Page 2 of 8
[3]   The State charged McClendon with Count I, level 6 felony conspiracy to

      commit theft; Count II, level 6 felony conspiracy to commit forgery; Counts III

      through VII, five counts of level 6 felony forgery; and Count VIII, a habitual

      offender count. McClendon initially pled not guilty and requested a jury trial.

      He subsequently filed a change of plea and entered into a written plea

      agreement in which he agreed to plead guilty to the conspiracy counts (Counts I

      and II) and two forgery counts (Counts III and IV), with the remaining counts

      to be dismissed. The plea agreement capped the sentences for Counts I through

      IV at 730, 365, 365, and 365 days, respectively. Tr. at 8. At McClendon’s

      December 2016 guilty plea hearing, the trial court established a factual basis for

      McClendon’s guilty pleas. Later in the hearing, the trial court addressed double

      jeopardy concerns regarding Counts III and IV and referenced the parties’

      intent to amend the sentence cap to a total of four years. Id. at 20-21. At the

      close of the hearing, the trial court took the plea agreement under advisement.


[4]   At the February 2017 sentencing hearing, the trial court entered judgment of

      conviction on Counts I and II, both as level 6 felonies, and dismissed Counts III

      and IV. The court sentenced McClendon to two consecutive 730-day terms,

      with 545 days of each sentence to be served in the Department of Correction

      and the remainder to be served on unsupervised probation, with restitution as a

      condition.


[5]   McClendon now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-459 | August 31, 2017   Page 3 of 8
                                     Discussion and Decision
[6]   McClendon maintains that the trial court violated his plea agreement when it

      imposed an aggregate four-year sentence, consisting of two consecutive 730-day

      terms, claiming that the plea agreement capped Count I at 730 days and Count

      II at 365 days. The State asserts that the trial court never accepted

      McClendon’s original plea agreement and that the parties effectively amended

      the plea agreement to provide an aggregate four-year sentence cap.


[7]   Plea agreements “are in the nature of contracts between the defendant and the

      State.” Berry v. State, 10 N.E.3d 1243, 1246 (Ind. 2014). No plea agreement

      may be made by the prosecuting attorney to a court on a felony charge except

      in writing. Ind. Code § 35-35-3-3(a). The decision whether to accept or reject a

      proffered plea agreement is within the trial court’s discretion. Stone v. State, 27

      N.E.3d 341, 343 (Ind. Ct. App. 2015). “If the court accepts a plea agreement, it

      shall be bound by its terms.” Ind. Code § 35-35-3-3(e). This includes any

      sentencing provisions included in the plea agreement. See Jackson v. State, 968

      N.E.2d 328, 332 (Ind. Ct. App. 2012) (“Once the trial court accepts the plea

      agreement, it ‘is strictly bound by its sentencing provision and is precluded from

      imposing any sentence other than required by the plea agreement.’”) (citation

      omitted).


              If the plea agreement is not accepted, the court shall reject it
              before the case may be disposed of by trial or by guilty plea. If the
              court rejects the plea agreement, subsequent plea agreements
              may be filed with the court, subject to the same requirements that
              this chapter imposes upon the initial plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-459 | August 31, 2017   Page 4 of 8
      Ind. Code § 35-35-3-3(b).


[8]   At McClendon’s guilty plea hearing, the trial court stated,


              As I’ve mentioned, you’ve got plea agreements that have been
              filed but I have not even reviewed them yet. I’ll hear some
              evidence today both from the state and the defense. And if I
              believe the plea agreement is reasonable and fair, I’ll accept it.
              And then I have to sentence you according to the terms of the
              agreement. If I don’t like it because I think it’s too harsh or too
              lenient or missing some services that are needed, I can still reject
              the agreement. If I reject the plea agreement after you’ve already
              pled guilty, what we’d do is we’d put the case back on the trial
              docket. We start over as if you didn’t plead guilty and your
              testimony can’t be used against you.


      Tr. at 5-6. Later in the same hearing, the trial court addressed the parties’

      apparent attempt to amend the original plea agreement:


              BY THE COURT: So, before the plea agreement had provided
              for five years executed. Now as amended it’s a maximum of
              four.


              [DEFENSE COUNSEL]: Judge, we’ll have our initials on there.


              BY THE COURT: So, I think we’re good as amended under
              both provisions. So, the maximum sentence is four years not
              five.


              BY MR. MCCLENDON: Okay.


              BY THE COURT: Under the changes that we just made today,
              do you understand that Mr. McClendon?

      Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-459 | August 31, 2017   Page 5 of 8
               BY MR. MCCLENDON: Yes, sir.


       Id. at 21.


[9]    Two months later, at sentencing, the sentencing cap issue resurfaced as follows:

               BY THE COURT: … Caps it at what amount?

               BY [THE STATE]: I believe my understanding on this one, the
               max that we would be arguing on this case was the four years.

               BY THE COURT: Alright. We talked about it at the guilty plea
               I just can’t remember what we called. Is that your
               understanding, sir?

               BY MR. MCCLENDON: Yes, sir.

               BY THE COURT: Four years was the max?

               BY MR. MCCLENDON: Yes sir, that’s – those were your exact
               words, sir.


       Id. at 25.


[10]   As indicated from the transcripts of both hearings, the parties appear to have

       agreed to amend the aggregate sentence cap, but we see nothing on the face of

       the plea agreement to bear this out. The record includes only one written plea

       agreement, file stamped on the date of the guilty plea hearing. Although that

       document includes some handwritten initialed changes, no alteration was made

       to the capped sentences for each count. See Appellant’s App. Vol. 2 at 18 (“Jail

       730 + 365 + 365 + 365 … days”). That notation contemplates judgment of


       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-459 | August 31, 2017   Page 6 of 8
       conviction on four separate counts, but the trial court ultimately declined to

       enter judgment on Counts III and IV, each of which was subject to a 365-day

       sentence cap. Based on the face of the plea agreement, even after the initialed

       changes, the sentence cap remained at 730 days for Count I and 365 days for

       Count II.1 Consequently, the trial court exceeded the sentence cap for Count II

       as stated in the plea agreement when it imposed a 730-day sentence on that

       count.


[11]   While the hearing transcripts indicate that the parties intended to amend the

       original plea agreement, we conclude that there was no “meeting of the minds”

       concerning the terms as amended. In other words, we are not convinced that

       McClendon understood whether he was assenting to an amended sentence cap

       for conviction on all four counts or merely two. Confusion was bound to ensue

       when the written sentence caps, listed precisely for each separate count and

       measured in days, were verbally characterized as one overall sentence cap

       measured in years. When the trial court indicated its intent not to enter

       judgment of conviction on two of the four counts included in the plea

       agreement, this necessitated precise attention to the plea agreement’s language

       concerning the sentence caps. Had changes been made specifically, in writing,

       and initialed by the parties, the plea agreement likely could have been salvaged.

       Under the circumstances, it cannot. We therefore believe that remand is the



       1
         With respect to sentencing, only two alterations were made, one specifying court costs of “$183” and the
       other an initialed change crossing out the word “CONSECUTIVE” after the number of days per count.
       Appellant’s App. Vol. 2 at 18. Though not addressed by the parties on appeal, the latter alteration raises the
       question of whether the trial court violated the plea agreement by imposing consecutive terms.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-459 | August 31, 2017               Page 7 of 8
       only way to ensure that McClendon’s guilty plea, if he decides to enter one, is

       made with complete and precise knowledge of the extent of his sentence

       exposure. Accordingly, we vacate McClendon’s convictions and sentence and

       remand for further proceedings in accordance with this decision.


[12]   Vacated and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-459 | August 31, 2017   Page 8 of 8
