                                                                                     FILED
                                                                                Sep 06 2018, 5:29 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
      Jonathan Hummel                                            Curtis T. Hill, Jr.
      Westville, Indiana                                         Attorney General of Indiana

                                                                 James B. Martin
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jonathan Hummel,                                           September 6, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 75A03-1710-PC-2449
              v.                                                 Appeal from the Starke Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Michael A. Shurn,
      Appellee-Plaintiff                                         Special Judge
                                                                 Trial Court Cause No.
                                                                 75C01-1512-PC-4



      May, Judge.


[1]   Jonathan Hummel appeals the trial court’s denial of his motion to correct error.

      Hummel’s appeal arises after the appointment of a special judge to hear

      Hummel’s post-conviction relief (“PCR”) petition. The special judge first

      approved an agreement between the State and Hummel that modified


      Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018                       Page 1 of 11
      Hummel’s sentence and called for dismissal of Hummel’s PCR petition.

      Approximately forty-five minutes later, the special judge revoked his approval

      of the agreement and reinstated Hummel’s PCR petition. Hummel filed a

      motion to correct error from the trial court’s reversal of the judgment it had

      entered in his favor, which the trial court denied, leading to Hummel’s notice of

      appeal.


[2]   The State cross-appeals, asserting the denial of Hummel’s motion to correct

      error was not a final, appealable order and, as Hummel did not fulfill the

      requirements for an interlocutory appeal, this appeal should be dismissed. As

      to the merits of Hummel’s appeal, the State counters the special judge was

      correct in his determination he did not have the authority to modify the

      underlying sentence; thus, the special judge did not err when he denied

      Hummel’s motion to correct error.


[3]   We reverse and remand.



                                Facts and Procedural History
[4]   On April 23, 2012, Hummel pled guilty pursuant to a plea agreement to Class

      A felony dealing in a narcotic drug, 1 two counts of Class B felony robbery, 2 and




      1
          Ind. Code § 35-48-4-1 (2006).
      2
          Ind. Code § 35-42-5-1 (1984).


      Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018   Page 2 of 11
      Class D felony criminal mischief 3 under cause number 75C01-1112-FA-16

      (“FA-16”). In return the State dismissed all other pending cases. On May 17,

      2012, the trial court sentenced Hummel to thirty-one and one-half years, as

      agreed in the plea agreement.


[5]   On December 14, 2015, Hummel filed a petition for PCR. 4 On March 23,

      2016, Hummel filed a motion for recusal of judge. On June 16, 2016, the trial

      court granted that motion and appointed Special Judge Michael Shurn.


[6]   On February 24, 2017, at 1:30 p.m., at the evidentiary hearing on Hummel’s

      petition, Hummel and the State indicated they had come to an agreement

      modifying Hummel’s sentence to include Purposeful Incarceration. 5 In

      exchange, Hummel requested his petition for PCR be dismissed. Special Judge

      Shurn accepted the agreement and dismissed the PCR. Special Judge Shurn left

      the court room. At 2:22 p.m., approximately forty-five minutes later, Special

      Judge Shurn returned to the court room. The parties were still present. Special

      Judge Shurn informed the parties he had only been appointed to preside over

      the PCR case and that he did not have the authority to modify the sentence in




      3
          Ind. Code § 35-43-1-2 (2006).
      4
       This petition is not included in the record for review; thus, we do not know the grounds on which
      Hummel’s petition asserted he was entitled to relief.
      5
        Neither the parties nor the record before us indicates whether placement in Purposeful Incarceration was
      the basis for Hummel’s petition for post-conviction relief or merely an ancillary negotiation. Additionally,
      the transcript for this hearing is not included in the record; thus, we rely on the Chronological Case Summary
      (“CCS”) and the parties’ briefs in this recitation of facts. The State and the CCS agree that Purposeful
      Incarceration was the substance of the agreement between Hummel and the State. Hummel, himself, does
      not elaborate on the terms of the agreement.

      Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018                     Page 3 of 11
      FA-16. Special Judge Shurn then revoked his approval of the agreement and

      reinstated Hummel’s PCR case.


[7]   On March 20, 2017, Hummel filed a motion to correct error alleging Special

      Judge Shurn did have the authority to accept the agreement between him and

      the State. In his motion, Hummel argued our Indiana Supreme Court had held

      that post-conviction courts had the authority to accept agreements made

      between the State and a petitioner. Hummel amended his motion on April 27,

      2017, to add citation to a later case wherein the Court of Appeals held post-

      conviction courts have discretion to accept or reject an agreement that modifies

      the sentence in the underlying cause number.


[8]   Special Judge Shurn conducted a hearing on June 28, 2017, and granted

      Hummel’s request for ninety more days in which to present additional authority

      on his motion. Then, on October 6, 2017, Special Judge Shurn conducted a

      hearing on Hummel’s motion to correct error. Hummel was unable to present

      any additional authority. Hummel stated he “was just under the impression

      that today you were gonna’ go ahead and deny the Motion to Correct Error and

      then I was gonna’ – uh – I got my – uh – Notice of Appeal ready to send to the

      Court then we were gonna’ move on from there.” (Tr. Vol. II at 5.) Special

      Judge Shurn later confirmed, “So, I’m just gonna’ show we had a telephonic

      case management conference today and – on the Motion to Correct Errors and

      it’s denied and then [Hummel is] gonna’ appeal.” (Id. at 7.)



                                  Discussion and Decision
      Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018   Page 4 of 11
[9]    Hummel argues Special Judge Shurn had the authority to accept the agreement

       between him and the State. Hummel asks this court to clarify the special

       judge’s authority to accept such agreements and to insist the State be bound by

       the agreement it made with Hummel.


[10]   The State cross-appeals and argues this appeal should be dismissed because the

       order being appealed is not a final, appealable order and Hummel did not

       follow the correct procedure to proceed with an interlocutory appeal. The State

       then argues, as to Hummel’s assertions, that Hummel has not presented a

       cogent argument for appeal; thus, the issue is waived. Waiver notwithstanding,

       the State argues Special Judge Shurn was correct in his assertion he did not

       have authority to modify the sentence in FA-16 as his appointment was for only

       the PCR case.


                                          State’s Cross-Appeal
[11]   As it could be dispositive, we address the State’s cross-appeal first. The State

       cross-appeals stating Hummel is not appealing from a final appealable order

       and we should dismiss his appeal.


[12]   The post-conviction court entered a final appealable order when it accepted the

       agreement between the State and Hummel and dismissed Hummel’s PCR

       petition. See Ind. Appellate Rule 2(H)(1) (“A judgment is a final judgment if:

       (1) it disposes of all claims as to all parties . . . .”). Then, when the special judge

       returned to the bench to revoke that acceptance and reinstate the PCR petition,

       the court invoked its authority to sua sponte move to correct error. See Ind. Trial

       Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018   Page 5 of 11
       Rule 59(B) (“The motion to correct error, if any, may be made by the trial

       court, or by any party.”). The court’s grant of that motion to correct error was

       also an appealable final order. See App. R. 2(H)(4) (“A judgment is final

       judgment if . . . it is a ruling on either a mandatory or permissive Motion to

       Correct Error which was timely filed under Trial Rule 59 . . . .”); Ind. Trial

       Rule 59(F) (“Any modification or setting aside of a final judgment or an

       appealable final order following the filing of a Motion to Correct Error shall be

       an appealable final judgment or order.”). Thereafter, Hummel filed his own

       motion to correct error—which our rules permit him to do in this circumstance.

       See Jackson v. Pempleton, 559 N.E.2d 1193, 1193 (Ind. Ct. App. 1990) (When a

       “trial court [] alter[s], amend[s], or supplement[s] its findings and/or judgment

       in its ruling on the first motion to correct error, the parties would have [] the

       discretion to file another motion to correct error directed to the changed

       findings and/or judgment.”). Therefore, the order from which Hummel

       appeals is a final appealable order and is not subject to dismissal on the State’s

       asserted ground.


                                             Hummel’s Appeal
                                           Acceptance of Agreement 6

[13]   Hummel appeals the special judge’s determination that the special judge did not

       have authority, within a PCR action, to accept an agreement between a




       6
        While we note the State’s argument that Hummel did not include either his original petition or the
       agreement, this does not preclude our review of the merits of this case. The State acknowledges it did make

       Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018                    Page 6 of 11
petitioner and the State that modified the petitioner’s original sentence.

Hummel argues Indiana Supreme Court precedent gives a PCR court the

authority to accept such agreements between the State and PCR petitioners.

Hummel notes our Indiana Supreme Court explained:


        Indiana prosecutors and petitioners for post-conviction relief do
        resolve post-conviction relief claims on terms that include a
        sentence different than that imposed at trial (1) prior to
        adjudication, and (2) after adjudication but prior to resolution on
        appeal. There are sound policy reasons that our system should
        permit prosecutors and petitioners for post-conviction relief to
        agree to resolve post-conviction relief claims, including
        facilitating resolution of meritorious, difficult-to-defend, and
        otherwise complex post-conviction issues; making efficient use of
        limited resources; and promoting judicial economy. To further
        these policies, we affirm the authority of prosecutors and
        petitioners for post-conviction relief to agree to resolve post-
        conviction relief claims on terms that include a sentence different
        than that imposed at trial; and we affirm the authority of post-
        conviction courts to accept such agreements.


Johnston v. Dobeski, 739 N.E.2d 121, 123 (Ind. 2000) (footnotes omitted),

overruled on other grounds by State v. Hernandez, 910 N.E.2d 213 (Ind. 2009)

(overruling Johnston only “[t]o the extent [it] held that a life sentence was

indeterminate and that a prisoner serving a life sentence was eligible for

consideration for parole”). Based thereon, our Indiana Supreme Court held




an agreement with Hummel, ostensibly regarding Purposeful Incarceration. As such, we will proceed under
the presumption that regardless of the substance of Hummel’s petition, the State and Hummel negotiated a
mutually satisfactory agreement wherein Hummel’s sentence was modified to include the prospect of
Purposeful Incarceration.

Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018                 Page 7 of 11
       that where “the administrative branch of government acting through the county

       prosecutor, as part of an effort to resolve and conclude litigation, sought court

       approval of an agreement that, among other things, included a sentence

       different than that imposed at trial” the post-conviction court had the authority

       to accept that agreement and dismiss the post-conviction petition. Id. at 126.

       Nearly a decade later, our Indiana Supreme Court “reaffirm[ed] [its] holding in

       Johnston that the agreement between the prisoner and the county prosecutor was

       valid.” State v. Hernandez, 910 N.E.2d 213, 221 (Ind. 2009).


[14]   In Jackson v. State, 958 N.E.2d 1161 (Ind. Ct. App. 2012), reh’g denied, trans.

       denied, Jackson argued post-conviction proceedings are civil in nature and thus

       the “post-conviction court had no discretion to deny his proffered agreement[.]”

       Id. at 1165. However, a panel of our court held that while a post-conviction

       court has the authority to accept such an agreement, “because a post-conviction

       proceeding is not the equivalent of a civil proceeding[,]” id. at 1166, the post-

       conviction court was not required to accept any agreement.


[15]   In light of that precedent, we are constrained to hold that a post-conviction

       court has the authority to accept sentence modification agreements reached by

       the State and a post-conviction petitioner that call for the dismissal of the post-

       conviction petition in exchange for a sentence modification. See Johnston, 739

       N.E.2d at 126 (holding it to be “within the judicial power to dismiss the [post-

       conviction] litigation” based on the parties’ agreement and “affirming the post-

       conviction court’s acceptance of the 1989 agreement between the State and

       [petitioner]”).

       Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018   Page 8 of 11
[16]   In addition, we note that, in Johnston, after the State and Dobeski reached an

       agreement that would modify his sentence, the State changed its position and

       argued the court had no authority to accept the agreement. In response, the

       Supreme Court said:


               [T]he State should be held to the agreement it made with
               Dobeski in 1989 for the following reasons. First, affirming the
               agreement furthers as a general matter the interests identified
               above-facilitating resolution of meritorious, difficult-to-defend,
               and otherwise complex post-conviction issues; making efficient
               use of limited resources; and promoting judicial economy. Some
               if not all of these considerations were undoubtedly at work in this
               case. Second, as part of the agreement, Dobeski dismissed his
               claim for post-conviction relief with prejudice. We see reviving
               this claim now, almost a decade later, highly problematic for all
               concerned. Third, the original life sentences had been imposed
               under an indeterminate sentencing regime that expressly
               provided for later review. Fourth, practice under the
               indeterminate sentencing system regularly authorized parole
               from life sentences after periods of time much less than the
               revised sentence in this case. Fifth, the sentence provided for in
               the agreement here corresponds to consecutive presumptive
               terms under the sentencing regime in effect at the time the
               agreement was approved.


       Johnston, 739 N.E.2d at 125-26.


[17]   Despite this precedent in favor of Hummel’s position, the State argues Special

       Judge Shurn did not have authority to accept the agreement to modify the

       sentence in FA-16 but rather only had the authority to grant or deny the relief

       sought by Hummel in his petition for post-conviction relief. The State’s

       assertion is premised on the fact that special judges are appointed to hear a

       Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018   Page 9 of 11
       single case, not to adjudicate the court’s entire docket. See Skipper v. State, 525

       N.E.2d 334, 335 (Ind. 1988) (noting “distinction between a judge pro tempore

       and a special judge is that a special judge is appointed for a particular case,

       whereas a judge pro tempore is appointed to preside over the entire court for a

       span of time”).


[18]   However, to accept the State’s argument appears to eliminate the possibility

       that a special judge could ever preside over a PCR action. A PCR action, by its

       very design, is a collateral attack on the results of a criminal case that arose

       under a separate cause number. See Ind. Post-Conviction Rule 1. Thus, the

       presiding judge in a PCR action must have authority to act in such a way that

       does, in fact, have repercussions for the outcome of a different cause number—

       in this case, the underlying criminal proceeding. Whether that judge is a special

       judge or a conventional judge ought not impact that authority. Our Indiana

       Supreme Court has held a PCR court has the authority to accept agreements

       presented to it that modify the sentence in the underlying criminal case, see

       Johnston, and we now hold that the authority vested in the judge presiding over

       a PCR action must be the same, whether that judge is an elected judge, a judge

       pro tempore, or a special judge.


[19]   Although Special Judge Shurn was appointed to serve on the PCR action, and

       not the FA-16 case, Special Judge Shurn had the authority as the PCR judge to

       accept the agreement between the State and Hummel that modified Hummel’s

       sentence in FA-16. Additionally, like with plea agreements, once the

       agreement was accepted by the court, the parties were bound by the terms of

       Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018   Page 10 of 11
       their agreement. See, e.g., Brewer v. State, 830 N.E.2d 115, 118 (Ind. Ct. App.

       2005) (“A plea agreement is a contract, binding upon both parties when

       accepted by the trial court.”), trans. denied; see also Johnston, 739 N.E.2d at 125

       (for sound policy reasons, “the State should be held to the agreement it made

       with [petitioner]”). Therefore, Special Judge Shurn erred when he sua sponte

       granted his own motion to correct error based on his belief he did not have the

       authority to accept the agreement reached by the State and Hummel.



                                                Conclusion
[20]   As this appeal arose from a final appealable order, we do not grant the State’s

       cross-appeal request that we dismiss Hummel’s appeal. Special Judge Shurn

       had the authority to accept the agreement between the State and Hummel, and

       the State is bound by the terms of that agreement. Therefore, we reverse the

       post-conviction court’s revocation of its acceptance of the agreement, which

       also called for dismissal of Hummel’s PCR petition. We remand for the post-

       conviction court to re-enter its original order enforcing the parties’ agreement

       and dismissing Hummel’s PCR petition.


[21]   Reversed and remanded.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 75A03-1710-PC-2449 | September 6, 2018   Page 11 of 11
