                                                                                   FILED
                                                                               Feb 15 2017, 9:30 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Scott A. Norrick                                           Curtis T. Hill, Jr.
Anderson, Indiana                                          Attorney General of Indiana
                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Justin R. Messersmith,                                     February 15, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           48A05-1511-CR-1936
        v.                                                 Appeal from the Madison Circuit
                                                           Court
State of Indiana,                                          The Honorable Thomas Newman,
Appellee-Plaintiff.                                        Jr., Judge
                                                           Trial Court Cause No.
                                                           48C03-1407-F5-1341



Bailey, Judge.




Court of Appeals of Indiana | Opinion 48A05-1511-CR-1936 | February 15, 2017                           Page 1 of 8
                                             Case Summary
[1]   Following a jury trial, Justin R. Messersmith (“Messersmith”) was convicted of

      one count of Neglect of a Dependent Resulting in Bodily Injury, as a Level 5

      felony,1 and one count of Battery on a Person Less Than 14 Years Old, as a

      Level 6 felony.2 Messersmith now appeals, contending that the trial court

      abused its discretion when, after accepting a plea agreement and entering

      judgment of conviction against Messersmith pursuant to the agreement, the trial

      court later granted the State’s request to withdraw the plea agreement.3


[2]   We reverse and remand with instructions.



                                    Facts and Procedural History
[3]   On July 22, 2014, Messersmith injured his four-year-old son when he forcibly

      pushed him against a trailer at the Madison County Fair. Messersmith was

      arrested, and the State brought two charges against him: (1) Neglect of a

      Dependent Resulting in Bodily Injury, as a Level 5 felony; and (2) Battery on a

      Person Less Than 14 Years Old, as a Level 6 felony. Messersmith reached a

      plea agreement with the State whereby he would plead guilty to Count II and




      1
       Ind. Code § 35-46-1-4-(a)(1). We refer throughout our decision to the substantive provisions of the Indiana
      Code in effect at the time of and applicable to Messersmith’s conduct.
      2
          I.C. § 35-42-2-1(b)(1).
      3
        Because we find this issue dispositive, we do not reach Messersmith’s contention that the trial court abused
      its discretion when it excluded the testimony of his late-disclosed witness.

      Court of Appeals of Indiana | Opinion 48A05-1511-CR-1936 | February 15, 2017                       Page 2 of 8
      the State would move to dismiss Count I.4 At a February 23, 2015 hearing,

      Messersmith pleaded guilty. The trial court accepted his plea, entered judgment

      on Count II, and dismissed Count I.


[4]   On March 30, 2015, the State orally sought to withdraw the plea agreement

      because the State entered the agreement without first notifying the victim.

      Messersmith objected. After taking the matter under advisement, the trial court

      entered an order granting the State’s request to withdraw the plea agreement.


[5]   A jury trial commenced on September 24, 2015, and Messersmith was

      convicted of both counts.


[6]   This appeal ensued.



                                  Discussion and Decision
[7]   Messersmith argues that the trial court abused its discretion when, after

      accepting the plea agreement and entering its judgment of conviction, the trial

      court granted the State’s request to withdraw the plea agreement. “We review

      for an abuse of discretion a decision to permit withdrawal of a plea agreement.”

      Dunn v. State, 33 N.E.3d 1074, 1075 (Ind. Ct. App. 2015) (citing Badger v. State,

      637 N.E.2d 800, 802 (Ind. 1994)). A trial court abuses its discretion when its




      4
        It is unclear whether the plea agreement was reduced to writing; Messersmith and the State orally presented
      the plea agreement and there is no written plea agreement in the appellate record.

      Court of Appeals of Indiana | Opinion 48A05-1511-CR-1936 | February 15, 2017                      Page 3 of 8
      decision is clearly against the logic and effect of the facts and circumstances

      before the court. McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016).


[8]   In resolving cases involving plea agreements, we often look to principles of

      contract law for guidance. Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004).

      However, we are cognizant that “[b]ecause important due process rights are

      involved, contract law principles although helpful are not necessarily

      determinative in cases involving plea agreements.” Id.; see also Carnine v. United

      States, 974 F.2d 924, 928 (7th Cir. 1992) (“Plea agreements . . . are unique

      contracts ‘in which special due process concerns for fairness and the adequacy

      of procedural safeguards obtain.’”) (quoting United States v. Ataya, 864 F.2d

      1324, 1329 (7th Cir. 1988)).


[9]   The State argues that the trial court properly granted the State’s motion to

      withdraw the plea agreement because, in doing so, the trial court accounted for

      the victim’s rights. The State directs us to Article 1, Section 13 of the Indiana

      Constitution, which establishes rights for crime victims. The State also directs

      us to portions of the Indiana Code codifying those rights. See, e.g., I.C. § 35-40-

      5-3 (giving the victim “the right to confer with a representative of the

      prosecuting attorney’s office . . . before any disposition of a criminal case

      involving the victim”). However, in establishing rights for crime victims,

      Article 1, Section 13 expressly provides that a victim’s rights must yield to a

      defendant’s constitutional rights:

              Victims of crime, as defined by law, shall have the right to be
              treated with fairness, dignity, and respect throughout the criminal
      Court of Appeals of Indiana | Opinion 48A05-1511-CR-1936 | February 15, 2017   Page 4 of 8
               justice process; and, as defined by law, to be informed of and
               present during public hearings and to confer with the
               prosecution, to the extent that exercising these rights does not infringe
               upon the constitutional rights of the accused.


       Ind. Const. art. 1, § 13(b) (emphasis added).


[10]   Among a defendant’s constitutional rights is the federal right to due process

       supplied by the United States Constitution, which provides that a State shall not

       “deprive any person of life, liberty, or property, without due process of law.”

       U.S. Const. amend. XIV, § 1. “[T]he touchstone of due process” is

       fundamental fairness, Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973), and entry of

       judgment following a guilty plea implicates a defendant’s due process rights:


               A plea bargain standing alone is without constitutional
               significance; in itself it is a mere executory agreement which,
               until embodied in the judgment of a court, does not deprive an
               accused of liberty or any other constitutionally protected interest.
               It is the ensuing guilty plea that implicates the Constitution.


       Coker v. State, 499 N.E.2d 1135, 1138 (Ind. 1986) (internal quotation marks

       omitted) (quoting Mabry v. Johnson, 467 U.S. 504, 507-08 (1984)). The United

       States Supreme Court has elaborated on the process due to a defendant in the

       context of a guilty plea:


               This phase of the process of criminal justice, and the adjudicative
               element inherent in accepting a plea of guilty, must be attended
               by safeguards to insure the defendant what is reasonably due in
               the circumstances. Those circumstances will vary, but a constant
               factor is that when a plea rests in any significant degree on a
               promise or agreement of the prosecutor, so that it can be said to
       Court of Appeals of Indiana | Opinion 48A05-1511-CR-1936 | February 15, 2017        Page 5 of 8
               be part of the inducement or consideration, such promise must be
               fulfilled.


       Santobello v. New York, 404 U.S. 257, 262 (1971). Thus, when a defendant enters

       a “knowing and voluntary (and hence valid)” plea, “the Government is

       obligated to uphold its side of the bargain.” Puckett v. United States, 556 U.S.

       129, 138 (2009).


[11]   With these principles in mind, it is notable that “[w]e have, at times, held [that]

       trial courts have the discretion to revoke plea agreements after judgment was

       entered.” Dunn, 33 N.E.3d at 1076. For example, we have recognized an

       exception when a defendant claims innocence at a sentencing hearing, Beech v.

       State, 702 N.E.2d 1132 (Ind. Ct. App. 1998), in which case a defendant’s

       inconsistent assertions raise questions about the voluntariness of the plea.

       Patton v. State, 517 N.E.2d 374, 376 (Ind. 1987) (observing that the

       “requirement that a guilty plea manifest an unqualified admission of guilt does

       not exalt form over substance” in part because the requirement “obviates a

       collateral attack on a judgment by a later claim the plea was too equivocal to

       bind the pleader and permit entry of judgment”) We have also recognized an

       exception when a defendant breaches the terms of a plea agreement, Campbell v.

       State, 17 N.E.3d 1021 (Ind. Ct. App. 2014), in which case principles of fairness

       do not demand the State’s adherence to a plea agreement that the defendant

       himself has breached. See id. at 1024 (noting that when the defendant refused to

       testify as promised in the plea agreement, he “failed to tender the consideration

       specifically contemplated” in the agreement).

       Court of Appeals of Indiana | Opinion 48A05-1511-CR-1936 | February 15, 2017   Page 6 of 8
[12]   Turning to the instant case, Dunn presented facts similar to those at hand. In

       Dunn, the defendant and the State entered a plea agreement which included an

       affidavit indicating that the State had provided requisite notice to the victim. 33

       N.E.3d at 1076. Nevertheless, the State later moved to withdraw the plea

       agreement because the State had not contacted the victim, and the trial court

       granted the State’s motion to withdraw the plea. The Dunn Court reversed,

       concluding that no exception permitted the trial court to revoke a plea

       agreement after it entered judgment, and that “any error in the trial court’s

       original acceptance of the plea was invited by the State, as . . . [the] affidavit

       represented . . . that the State had, in fact, notified the victim.” Id.


[13]   The State urges that Dunn is distinguishable and, if not, asks us to reconsider

       Dunn. The State draws on the Dunn dissent and argues that an exception exists

       where, as here, the State fails to confer with the victim before entering the

       proffered plea agreement. The Dunn dissent concludes that “withdrawing a

       plea agreement after acceptance but before sentencing does not impact a

       defendant in a way that offends his or her constitutional rights.” Id. at 1077

       (Barnes, J., dissenting). The circumstances here, however, did offend

       Messersmith’s constitutional rights. This is because entry of judgment

       following a guilty plea implicates a defendant’s rights, Coker, 499 N.E.2d at

       1138, and due process requires that the government uphold its side of the

       bargain. Santobello, U.S. 257 at 262. Thus, Messersmith’s due process rights

       were violated when the trial court allowed the State to avoid the agreement over

       Messersmith’s objection. Although Indiana law establishes important victim

       Court of Appeals of Indiana | Opinion 48A05-1511-CR-1936 | February 15, 2017   Page 7 of 8
       rights, those rights must give way to a defendant’s federal due process rights.

       U.S. Const. art. VI, cl. 2; Ind. Const. art. 1, § 13(b). We therefore conclude that

       the trial court abused its discretion when it granted the State’s request to

       withdraw the plea agreement.



                                                Conclusion
[14]   The trial court abused its discretion in granting the State’s motion to withdraw

       the plea agreement. We reverse and order the trial court to enter judgment in

       accordance with the plea agreement and sentence Messersmith within the

       bounds of the plea agreement.


[15]   Reversed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 48A05-1511-CR-1936 | February 15, 2017   Page 8 of 8
