                                                                   FILED
                                                             Feb 28 2018, 10:29 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Kristin A. Mulholland                                      Curtis T. Hill, Jr.
      Crown Point, Indiana                                       Attorney General
                                                                 Henry A. Flores, Jr.
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jarod Thomas McMillan,                                     February 28, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 45A04-1708-CR-1819
              v.                                                 Appeal from the Lake County
                                                                 Superior Court
      State of Indiana,                                          The Honorable Samuel L. Cappas,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 45G04-1607-F1-007



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Jarod McMillan and the State entered into a plea agreement that called for

      McMillan to plead guilty as charged to eight counts of neglect of a dependent,

      including one count of Level 1 felony neglect of a dependent for knowingly or

      Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018           Page 1 of 16
      intentionally depriving his three-month-old son of necessary support (food

      and/or medical care), which resulted in his son’s death. According to the plea

      agreement, sentencing was left to the discretion of the trial court, except that the

      sentences would run concurrently. The trial court accepted the plea agreement

      and entered judgments of conviction. Before sentencing, however, the court

      revoked its acceptance of the plea agreement and set the case for trial because it

      found that McMillan asserted his innocence to the Level 1 felony. A jury found

      McMillan guilty as charged, and the trial court sentenced him to eight-and-a-

      half years more than the plea agreement would have allowed.


[2]   McMillan now appeals, arguing that the trial court erred in revoking its

      acceptance of the plea agreement and forcing him to go to trial. Because the

      record reflects that the trial court believed that McMillan did not admit that he

      was subjectively aware of a high probability that his conduct would result in his

      son’s health or life being at risk or in danger, we conclude that the trial court

      did not abuse its discretion when it revoked its acceptance of McMillan’s plea

      agreement. We therefore affirm the trial court.



                             Facts and Procedural History
[3]   In 2016, McMillan and Katherine Holmes lived together in a one-bedroom

      apartment in Gary with Holmes’s six children; McMillan was the father of

      Holmes’s three youngest children. On March 31, 2016, Kannon McMillan, the

      youngest of the six children, was born. He weighed five pounds, five ounces at

      birth.

      Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 2 of 16
[4]   Kannon passed away on July 5. The cause of Kannon’s death was

      complications of severe malnutrition; Kannon had gained just four ounces since

      birth,1 was “skin and bones,” and had “severe sucking blisters” on his fingers

      from trying to get food. Trial Tr. Vol. IV pp. 40-41. Kannon showed other

      signs of neglect, too. Kannon was dirty, his penis was “red and raw,” and he

      had third-degree or full thickness burns to his perineum, as if he was sitting in

      his own urine. Trial Tr. Vol. II p. 134. Due to the condition of McMillan and

      Holmes’s home, the other children were removed.


[5]   The State charged McMillan with one count (Count I) of Level 1 felony neglect

      of a dependent (Kannon) based on knowingly or intentionally depriving

      Kannon of necessary support (food and/or medical care), which resulted in his

      death, and seven counts (Counts II–VIII) of Level 6 felony neglect of a

      dependent (two counts for Kannon and one count for each of the other five

      children). Appellant’s App. Vol. II pp. 12-15. In February 2017, McMillan and

      the State entered into a plea agreement. Id. at 53. According to the plea

      agreement, McMillan would plead guilty to all of the charges, the parties were

      “free to fully argue their respective positions as to the sentence to be imposed by

      the Court,” and the sentences would be served concurrently. Id. at 54. Thus,




      1
       According to a pediatrician who testified at trial, “A baby when they are born loses weight initially.
      Because they are losing . . . water. And then, by a week to ten days, they get back to birth weight. And then
      after that, they should gain an ounce a day for their first month of life.” Trial Tr. Vol. IV p. 37.

      Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018                     Page 3 of 16
      McMillan faced a sentencing range of twenty to forty years.2 The parties also

      stipulated to a factual basis. Id. at 55, 57-58.


[6]   At the guilty-plea hearing, McMillan informed the trial court that he had made

      changes, which were initialed by him, his attorney, and the prosecutor, to the

      stipulated factual basis:




      2
        The State charged Holmes with the same offenses, and she and the State entered into a similar plea
      agreement. The trial court sentenced her to forty years, the maximum under her plea agreement. She
      appealed her sentence, arguing that the trial court erred by not recognizing three mitigators and that her
      sentence is inappropriate. We affirmed. See Holmes v. State, 86 N.E.3d 394 (Ind. Ct. App. 2017), trans. denied.

      Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018                      Page 4 of 16
      Id. at 57-58; Appellant’s App. Vol. III pp. 43, 45, 46. The trial court “expressed

      concern with the edits to the stipulated factual basis and the hesitant manner in

      which [McMillan] responded when questioned by the court” about them.

      Appellant’s App. Vol. III pp. 43, 45, 46. Although McMillan was “resistant

      and hesitant to admit any personal responsibility for his part in the[] crimes,”

      “he ultimately did admit his part.” Id. The trial court accepted the plea

      agreement, entered judgments of conviction, and scheduled a sentencing

      hearing. Id.; Appellant’s App. Vol. II pp. 6-7 (CCS entry).


[7]   Before sentencing, McMillan sent the trial court two letters. The first letter,

      referencing paragraph 8 of the factual basis, states:


              As for 8 stating that Kannon was clearly slipping away, your
              honor as i’ve told my attorny, every child that Ms. Holmes has
              birthed was small and this time was no different sir. My first two
              sons were both born early as well as her other kid’s, and she’s
              what is called a High Risk Pregnancy every time she carries. I
              just say these things to say to you Mr. Cappas sir that I did’nt
              think he was in danger of dying and that i’ve brought my other
              children along just fine (stature/physically wise). Your honor I
              had no intention of this happening, and this is the honest to God
              truth.


      Appellant’s App. Vol. II p. 60. In the second letter, McMillan wrote:


              In the case of my son Kannon sir, he sometimes fed more or less
              than other times and i thought it was just his appetite being up
              and down sir, my son Keelan fed the same way as a infant, and
              as he came along so did his appetite as well as his weight sir.
              Kannon showed no signs of being ill your honor, he smiled and
              craved the attention of being held just the same as other babies

      Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 5 of 16
              often do sir . . . . Having done it with my two other sons your
              honor, i felt like i’d bring his weight alon[g] fine sir. . . . Your
              honor i plead out because i know had Kannon not missed
              doctors appointments, that whatever problems he had would
              have been addressed. . . . I’m so sorry that this occurred Mr.
              Cappas. It was not intentional sir. I beg of your mercy sir,
              please?


      Id. at 64-65.


[8]   In response to these letters, the trial court, on its own motion, set a hearing to

      determine whether it should set aside the plea agreement and set the case for

      trial. The court believed that the letters indicated that McMillan “didn’t have

      any idea what was going on [with Kannon], which [was] contradictory to what

      he pled to.” Mar. 21, 2017 Tr. p. 5. As support, the court cited Beech v. State,

      which holds that “a trial court may, on its own motion, set aside a guilty plea if

      the defendant asserts his innocence after the plea has been accepted but prior to

      sentencing” and that “any defendant who openly straddles the fence by

      declaring both his guilt and innocence . . . at any point before sentencing . . .

      runs the risk that the trial court will . . . set aside the plea.” 702 N.E.2d 1132,

      1136 (Ind. Ct. App. 1998).


[9]   At the hearing, McMillan was placed under oath, and the trial court, defense

      counsel, and prosecutor took turns questioning him regarding Count I.

      Specifically, defense counsel asked McMillan if he thought Kannon needed

      medical help in light of the autopsy photographs showing Kannon’s ribs, and

      McMillan responded:


      Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 6 of 16
        Like I said, I am used to my kids being small. It’s more, like, I
        was -- I didn’t think that it was anything that I would do, like,
        you know, different from my first two sons as far as eating and
        gaining weight.


Mar. 21, 2017 Tr. p. 15. The court interrupted:


        THE COURT: So you thought it was okay? He was okay? He
        was going to be okay?


        [MCMILLAN]: I knew he needed to pick up weight like I did
        with my first two sons. And I thought that I could do that,
        because I have done it just, you know, feeding them regularly.
        And when they get of a certain age, you can add things to the
        formula. That helps.


Id. Defense counsel then asked McMillan if he knew that there was a problem

with Kannon’s weight, and McMillan said, “We knew he was small” and that

he “had not picked up a lot of weight.” Id. at 16. The prosecutor then took

over questioning:


        Q. You knew your child was underweight; didn’t you?


        A. Yes.


        Q. And you also knew -- you saw the pictures from the autopsy;
        did you not?


        A. Yes.




Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 7 of 16
        Q. And those pictures reflected the way your child presented and
        the way your child looked on the day that your child died;
        correct?


        A. Yes.


        Q. Given what you saw there and what you saw during the life of
        Kannon, you knew that Kannon was in need of medical
        intervention; didn’t you?


        A. I guess.


                                               *****


        Q. And you failed to insist or to seek that medical intervention;
        did you not? Is that correct or not?


        A. Yes. Yes.


        THE COURT: Okay. Well, he’s got his head down and he’s,
        like, shaking his head and admitting this --


                                               *****


        Q. You weren’t working; were you?


        A. No.


        Q. Katherine was working; correct?


        A. Yes.


Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 8 of 16
        Q. And it was your responsibility to look after and see for the
        child when she was at work; correct?


        A. Yes.


        Q. And during that period of time, you were aware that this child
        was experiencing a physical difficulty that needed to be addressed
        by a physician; weren’t you?


        A. I mean, like I said –


        Q. Yes or no? I mean, either you were or you weren’t.


        A. Sometimes he ate and took more in a feeding than he did in
        others.


        Q. The child died of malnutrition and dehydration. Sometime
        during his three-month lifetime, his 97 days on earth, you were
        aware that he needed to go to the hospital to the emergency
        room; weren’t you?


        A. Yes.


        [PROSECUTOR]: I think that establishes – he said, yes. And I
        think that establishes a factual basis.


        [MCMILLAN]: I mean, the doctor’s appointments were made
        and switched ---


        [PROSECUTOR]: There’s no question before you, sir.




Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 9 of 16
        THE COURT: Okay. Well, I want to hear it, because he’s going
        to write me another letter, and then I am going to have a
        problem. He needs to get it all out now.


        [MCMILLAN]: Your Honor, when I wrote you the letters, I
        was trying to just, kind of, inform you of, you know, the way
        things were going in my life and, you know, like, exactly what
        was happening. And, like, I think I said in one of the letters, I
        pled guilty, your Honor, because I know that had Kannon . . .
        made it to the doctor appointment that this most likely would
        have been prevented. And regardless of -- you know, I know that
        regardless of reasoning and excuse, you know, that we didn’t
        take him. . . . That’s what the writing was about. I was just
        trying to tell you that I pled guilty. I pled guilty, because I knew
        if I would have—if we would have gotten him to the doctor’s
        appointments that probably it would have prevented him -- we
        didn’t do that. But I was trying to get you to see that, you know,
        it wasn’t a thing like I just -- I just decided that I didn’t want him
        or didn’t want to take care of him properly or anything like that.
        Like, he was not gaining weight. I know that I fed him. And like
        I said, sometimes he fed more than other times. And, obviously,
        it was a bad choice to make, or however I am supposed to
        articulate it. But I was—I just figured that I could, you know,
        continue to feed my child and, you know, like I said, in due time
        he would gain weight. . . . That’s why I wrote you for just trying
        to -- just trying to clear up some of -- you know, like, it being said
        that, you know, like -- I guess the main thing that he was starved.
        I did not -- I did not starve him. I fed him. Why the weight was
        not coming could have been determined had we made those
        doctor’s appointments, and I did not.


Id. at 17-21. The court then confirmed with McMillan that he thought he was

feeding Kannon “in such a way where he was going to be just like Keelan and

make it out of his small weight,” and McMillan said yes. Id. at 21. At this


Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 10 of 16
       point, the court explained to McMillan “the problem.” Id. at 21-22. That is,

       the court said Count I required him to admit that he “knowingly or

       intentionally deprived Kannon of the necessary support, which resulted in his

       death.” Id. at 22. “You have to know that this kid was not eating right, not

       gaining weight, basically, starving to death. So if you knew that’s what was

       happening, okay. If you didn’t know that, then there’s a problem. It needs to

       go to a trial.” Id. at 22-23. Defense counsel then pointed out to the court that

       McMillan nevertheless admitted that he failed to ensure that Kannon was taken

       to the doctor. But the court was not persuaded: if McMillan “wasn’t aware that

       the kid needed to be [taken to the doctor], then he can’t be faulted for not taking

       the kid to the doctor. He has to be aware that the kid needed to be taken.” Id.

       at 24. The court identified this as “the essence of the case.” Id. at 24-25. And

       because McMillan had scratched out “who clearly showed signs [of] slowly

       wasting away” from the stipulated factual basis, the court had serious concerns.

       Id. at 25.


[10]   The court took the matter under advisement and later issued an order setting

       aside the plea agreement and setting the case for trial. Appellant’s App. Vol. II

       p. 79. A jury then found McMillan guilty as charged, and the trial court

       sentenced him to forty-eight-and-a-half years, eight-and-a-half years more than

       the plea agreement would have allowed.


[11]   McMillan now appeals.




       Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 11 of 16
                               Discussion and Decision
[12]   McMillan argues that the trial court erred in setting aside the plea agreement

       after accepting it and entering judgments of conviction. 3 Whether to accept or

       reject a proffered plea agreement is within the discretion of the trial

       court. Campbell v. State, 17 N.E.3d 1021, 1023 (Ind. Ct. App. 2014). But once

       the court accepts a plea agreement, “it shall be bound by its terms.” Ind. Code

       § 35-35-3-3(e); Reffett v. State, 571 N.E.2d 1227 (Ind. 1991), overruled on other

       grounds by Robinson v. State, 805 N.E.2d 783 (Ind. 2004).4 Accordingly, the

       general rule is that trial courts lack the authority to set aside plea agreements

       once they have been accepted and judgments of conviction have been entered—

       even if the defendants have not been sentenced. Stone v. State, 27 N.E.3d 341,

       343 (Ind. Ct. App. 2015); Campbell, 17 N.E.3d at 1023.


[13]   But there are exceptions to this rule. That is, trial courts have limited discretion

       to revoke their acceptance of plea agreements in the following circumstances:



       3
         The State argues on appeal that the trial court properly set aside the plea agreement. McMillan then
       argues in his reply brief that the State has “waived” this argument because the prosecutor argued in
       favor of the plea agreement below. Appellant’s Reply Br. p. 7. Although the State argued in favor of
       the plea agreement below, this does not relieve the trial court of its obligation to ensure that
       McMillan’s guilty plea was an unqualified admission of his guilt. This protects the defendant’s right to
       require proof of his guilt before a jury and obviates a collateral attack on a judgment by a later claim
       that the plea was too equivocal to bind the pleader and permit the entry of judgment. Patton v. State,
       517 N.E.2d 374, 376 (Ind. 1987), reh’g denied. Accordingly, the trial court was not bound to the State’s
       opinion below that McMillan had properly admitted his guilt.
       4
         As the Indiana Supreme Court advised in Reffett, the best course of action is for a trial court, following a
       guilty-plea hearing, to take the guilty plea under advisement until sentencing. 571 N.E.2d at 1229 n.3. This
       way, the trial court does not become bound by the terms of the plea agreement until a later date. If the trial
       court had followed that course of action here, it could have simply rejected the plea agreement upon
       receiving the letters. In fact, McMillan’s plea agreement provided: “The Parties agree that the plea
       agreement will be taken under advisement until the sentencing date at which time the Court will either accept
       or reject the plea agreement.” Appellant’s App. Vol. II p. 55.

       Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018                     Page 12 of 16
       (1) when a defendant asserts his innocence (because inconsistent assertions raise

       questions about the voluntariness of the plea) and (2) when a defendant

       breaches the terms of the plea agreement (because principles of fairness do not

       demand the State’s adherence to a plea agreement that the defendant himself

       has breached). Messersmith v. State, 70 N.E.3d 861, 864-65 (Ind. Ct. App. 2017)

       (citing Beech, 702 N.E.2d at 1136; Campbell, 17 N.E.3d at 1025); Stone, 27

       N.E.3d at 343.


[14]   Here, the trial court revoked its acceptance of McMillan’s plea agreement

       because it found that McMillan asserted his innocence to Count I, which alleges

       that McMillan knowingly or intentionally deprived Kannon of necessary

       support (food and/or medical care), which resulted in Kannon’s death. See Ind.

       Code § 35-46-1-4(a)(3), (b)(3); Ind. Code § 35-46-1-1 (defining “support” as

       “food, clothing, shelter, or medical care”); see also Appellant’s App. Vol. II p. 12

       (charging information). As this Court explained in Ricketts v. State, neglect of a

       dependent under subsection (a)(3)—not including the resulting-in-death

       enhancement that was charged here—is defined as the defendant’s “knowing or

       intentional deprivational conduct regarding food, clothing, shelter, or medical

       care, that results in the dependent’s health or life being at risk or in danger.”

       598 N.E.2d 597, 601 (Ind. Ct. App. 1992), trans. denied. A person engages in

       conduct “knowingly” if, when he engages in the conduct, he is aware of a high

       probability that he is doing so. Ind. Code § 35-41-2-2(b). “Proper analysis of

       the child neglect statute requires this court to apply a subjective standard to the

       term ‘knowingly.’” Ricketts, 598 N.E.2d at 601; see also Burden v. State, No.


       Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 13 of 16
       66A03-1706-CR-1298, 2018 WL 542983, at *3 (Ind. Ct. App. Jan. 25, 2018).

       Therefore, for purposes of subsection (a)(3), the defendant must have been

       subjectively aware of a high probability that his conduct would result in the

       dependent’s health or life being at risk or in danger.


[15]   We find that the trial court acted within its discretion when it revoked its

       acceptance of McMillan’s plea agreement. When McMillan was asked at the

       hearing if he thought Kannon needed medical help, McMillan answered that he

       was “used to [his] kids being small” and that he “didn’t think that it was

       anything . . . different from [his] first two sons as far as eating and gaining

       weight.” Mar. 21, 2017 Tr. p. 15. And when asked if he thought Kannon was

       going to be “okay,” McMillan answered: “I knew he needed to pick up weight

       like . . . my first two sons. And I thought that I could do that, because I have

       done it just, you know, feeding them regularly.” Id. McMillan said that his

       first two sons are “both healthy.” Id. at 21. In short, McMillan, on several

       occasions, expressed that he thought Kannon was “going to come along” and

       that he “would bring [Kannon’s] weight up.” Id. at 16. In other words,

       McMillan did not think that there was anything wrong with Kannon. In fact,

       McMillan was adamant that he fed Kannon and declared to the court: “I did

       not starve [Kannon]. I fed him.” Id. at 21. The trial court found that “the

       essence of the case” was whether McMillan subjectively knew that Kannon was

       at risk or in danger, and the court said that was the evidence it was looking for

       but had not heard. Id. at 24-25.




       Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 14 of 16
[16]   Although it is true that McMillan also testified that he “didn’t get [Kannon] to

       the doctor when he needed to be there,” id. at 33, which suggests that McMillan

       knew that something was wrong with Kannon, the court was free to discredit

       this statement in light of McMillan’s other testimony and actions, including the

       changes he made to the stipulated factual basis, that he was “resistant and

       hesitant to admit any personal responsibility” at the guilty-plea hearing, and the

       letters he wrote to the court. Moreover, as the court explained at the hearing,

       the relevant time period was what McMillan “thought when it was going on,”

       not what he thought in hindsight as an “armchair quarterback.” Id. at 23. And

       as the court expressed to McMillan at the hearing, it did not want to risk

       McMillan later changing his mind about pleading guilty. Id. at 22. Because the

       record reflects that the trial court, after hearing testimony from McMillan,

       believed that McMillan did not admit that he was subjectively aware of a high

       probability that his conduct would result in Kannon’s health or life being at risk

       or in danger, we conclude that the court did not abuse its discretion when it

       revoked its acceptance of McMillan’s plea agreement.5 We therefore affirm the

       trial court.


[17]   Affirmed.




       5
         McMillan argues that there is no mens rea requirement for the resulting-in-death enhancement and
       therefore the trial court “incorrectly required proof that [he] knew with a high probability that his actions
       would cause Kannon’s death.” Appellant’s Reply Br. p. 5. We do not reach this argument. Because the trial
       court found that McMillan failed to adequately plead guilty on the underlying neglect charge, it is irrelevant
       whether the trial court demanded too much regarding the resulting-in-death enhancement.

       Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018                    Page 15 of 16
May, J., and Altice, J., concur.




Court of Appeals of Indiana | Opinion 45A04-1708-CR-1819 | February 28, 2018   Page 16 of 16
