FOR PUBLICATION
                                                                           Jun 05 2014, 9:48 am




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                              GREGORY F. ZOELLER
Special Assistant to the State Public Defender     Attorney General of Indiana
Plainfield, Indiana
                                                   LARRY D. ALLEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

LARRY D. RUSSELL, JR.,                             )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 84A01-1312-CR-532
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable John T. Roach, Judge
                             Cause No. 84D01-1212-FC-3871



                                          June 5, 2014


                              OPINION - FOR PUBLICATION


NAJAM, Judge
                                   STATEMENT OF THE CASE

       Larry D. Russell, Jr. appeals his sentence following his convictions for five counts

of neglect of a dependent, as Class C felonies, and two counts of criminal confinement, as

Class C felonies, pursuant to a guilty plea. Russell presents a single issue for our review,

namely, whether the trial court sentenced Russell as provided in the plea agreement. But

our resolution of this issue requires us to address a more fundamental issue sua sponte,

namely, whether Russell’s plea agreement is void and unenforceable as a matter of law. 1

       We hold that the sentencing provision in Russell’s plea agreement is contrary to

law, and we reverse and remand with instructions.

                            FACTS AND PROCEDURAL HISTORY

       Russell and his wife adopted three teenaged children: P.G., B.J., and T.D. (“the

children”). Between August 23 and November 23, 2012, Russell engaged in repeated

acts of extreme abuse and neglect of the three children. The children lived together in

one bedroom, and Russell locked the doors to that bedroom with several padlocks on the

outside of the doors. There were no light fixtures in the bedroom, and the windows were

covered with plywood. Russell would sometimes lock the children in the bedroom for

eighteen to twenty-four hours per day. Russell deprived the children of food and access

to a bathroom for extended periods of time. The children devised a way of reaching the

kitchen to get food by climbing through a loose panel in the wall and burrowing a tunnel

through the inside of the walls and ceiling.




       1
           On April 2, 2014, we ordered the parties to file supplemental briefs on this issue.
                                                      2
       The children would typically urinate in a plastic bottle and store it in a hole in the

bedroom wall. When Russell and his wife discovered the bottle of urine, they proceeded

to pour the urine over the children’s heads. Russell and his wife also rubbed a product

called “Icy Hot” on the children’s genitals and rectums, and they would duct-tape diapers

to the children before the children went to bed. Russell also tied the children to the beds

with duct tape and rope. Russell waterboarded the children and bound their arms behind

their backs with a belt. Finally, when Russell wanted to make certain that the children

would stay quiet, he placed a rolled sock in the mouth of each child and secured it with

duct tape.

       On November 23, P.G. freed himself from the rope and duct tape Russell had used

to keep him in bed, pried the plywood from a window, broke the window, and jumped

from the second-story window to the ground below. P.G. then made his way to a hospital

and reported the abuse. At that time, P.G. was seventeen years old but weighed only

eighty-two pounds.

       The State charged Russell with five counts of neglect of a dependent, as Class C

felonies; two counts of criminal confinement, as Class C felonies; three counts of

criminal confinement, as Class D felonies; and neglect of a dependent, as a Class D

felony. On September 25, 2013, Russell pleaded guilty to five counts of neglect of a

dependent, as Class C felonies, and two counts of criminal confinement, as Class C

felonies, pursuant to a plea agreement. In exchange for his plea, the State agreed to

dismiss the remaining four counts. The plea agreement left sentencing open to the trial




                                             3
court’s discretion, but capped the sentence at ten years “pursuant to Indiana Code Section

35-50-1-2(c).”

      The trial court accepted the plea agreement and sentenced Russell as follows:

      The following statutory aggravating factors have been proven: the harm,
      injury, loss and damage suffered by the victims in this case is significant,
      greater than the elements necessary to prove the commission of the crimes,
      and ongoing; the defendant has a history of criminal or delinquent
      behavior; and the defendant recently violated the conditions “of any
      probation, parole, pardon, community corrections placement, or pretrial
      release” in that on May 30, 2012[,] he was released OR on charges of
      Domestic Battery, subsequently placed on deferred prosecution in that
      matter on September 10, 2012, and the instant offenses were committed
      from August 23, 2012[,] to November 23, 2012.

             The court finds the following statutory mitigating factors: defendant
      agrees to pay restitution. The court finds the evidence does not establish
      mitigating factors under I.C. § 35-38-1-7.1(b)(2), (b)(6), (b)(7), (b)(8) or
      (b)(10). The court acknowledges defendant’s acceptance of responsibility
      and his expression of remorse, but finds these factors outweighed by the
      aggravating factors, and undermined by his statement upon arrest that
      anyone with children like the victims would have done the same thing.

            The nature and circumstances of the crimes are extreme and
      aggravate the sentence. These were not single, isolated incidents of simply
      going too far with discipline, or bad parenting skills. The victims in this
      case were foster children needing a safe, loving, nurturing home. What
      they got, after being adopted by defendant, was a prison cell, without the
      amenities, and an existence involving torture, starvation, padlocks,
      deadbolts, and escape. Defendant’s actions were deliberate and time
      consuming.

             While the rest of defendant’s home contained reasonably clean and
      safe living quarters, including a kitchen with enough food for the family,
      this was not the case for the victims, whose room can only be described as
      cold, dark, sparse and depressing. It is evident the defendant planned and
      executed his crimes over a significant period of time. He spent a
      considerable amount of time turning part of his home into a penal facility
      for the three victims. One entrance to their room was boarded, with nails,
      by a large piece of plywood. Defendant affixed to the outside of the other
      door a series of latches and padlocks, and an elaborate, homemade,
      “deadbolt” locking bar passing through the door jamb. There were holes in
                                            4
       the ceiling tiles, both upstairs and down, where one of the victims
       attempted to tunnel through the walls, out of his cell, and into the kitchen to
       obtain food. At night, the children were restrained to their beds with duct
       tape and rope.

               It is apparent the prison-like accommodations were the norm for the
       victims. They endured inhumane conditions when what they needed, what
       they wanted, was parents to love and care for them after they had been
       taken away from their biological parents. Each of the victims deserves
       justice. The court finds the following to be an appropriate sentence. On
       each of Counts 1, 4 and 9 involving P.G., the defendant is sentenced to the
       Department of Correction for eight (8) years, concurrent with one another.
       On each of Counts 2, 5 and 10, involving B.J., the defendant is sentenced to
       the Department of Correction for eight (8) years, concurrent with each
       other, but consecutive to Counts 1, 4 and 9. On Count 3, involving T.D.,
       the defendant is sentenced to the Department of Correction for eight (8)
       years, consecutive to Counts 1, 4 and 9 and Counts 2, 5 and 10. However,
       pursuant to the limitation imposed by I.C. § 35-50-1-2, defendant’s
       aggregate, consecutive sentence is limited to ten (10) years. . . .

Appellant’s App. at 97-98 (emphases added). This appeal ensued.

                            DISCUSSION AND DECISION

       Russell contends that “the sentencing order and abstract of judgment issued in this

case are confusing and somewhat misleading regarding what sentence Russell was

actually given.” Appellant’s Brief at 4. And he maintains that the trial court “was

prohibited from entering any sentence other than 10 total years” pursuant to Indiana Code

Section 35-50-1-2(c). Id. Russell asserts that the Department of Correction is treating

him “as if he was serving a 24-year sentence with all but 10 years suspended. This has

negatively affected his classification status, requiring him to serve his sentence in a more

restrictive setting than he otherwise would have.” Id. On this argument, we agree with

the State that the sentencing order and abstract of judgment are clear that the trial court

imposed a ten-year aggregate sentence.


                                             5
          That said, the parties and the trial court are mistaken that Russell’s sentence is

limited to ten years as a matter of law. Indiana Code Section 35-50-1-2(c) provides in

relevant part that, except for crimes of violence, 2 the total of the consecutive terms of

imprisonment to which the defendant is sentenced for multiple felony convictions arising

out of an episode of criminal conduct shall not exceed the advisory sentence for a felony

that is one class of felony higher than the most serious of the felonies for which the

person has been convicted. “Episode of criminal conduct” means offenses or a connected

series of offenses that are closely related in time, place, and circumstance. I.C. § 35-50-

1-2(b).

          Our supreme court has explained that, in determining whether multiple offenses

constitute an episode of criminal conduct, the focus is on the timing of the offenses and

the simultaneous and contemporaneous nature of the crimes. See Reed v. State, 856

N.E.2d 1189, 1200 (Ind. 2006). Our courts have also held that, where a complete account

of a crime can be given without referring to the other offense, the offenses are not an

“episode of criminal conduct.” Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App.

1995). Here, the factual basis for Russell’s guilty plea encompasses the evidence of

multiple acts of neglect and confinement that occurred repeatedly over the course of three




          2
           Neither neglect of a dependent nor criminal confinement is listed as a “crime of violence” under
the statute. See I.C. § 35-50-1-2(a). Even B felony neglect of a dependent, which could have been
charged here given the facts as pleaded showing that the children suffered serious bodily injuries, is not
listed as a crime of violence under the statute.

                                                    6
months. Russell’s crimes do not constitute an episode of criminal conduct. Therefore,

the law does not require that Russell’s sentence be limited. 3

       In Lockhart v. State, 671 N.E.2d 893, 904 (Ind. Ct. App. 1996), we held that the

trial court “improperly found Lockhart’s molestations of [the child victim] to constitute

an ‘episode of criminal conduct’ and, thereby, erroneously reduced the sentence in

accordance with [Indiana Code Section 35-50-1-2].” And we explained that,

       [a]lthough the trial court has broad discretion in sentencing, it must act
       within statutorily prescribed limits. Niece v. State, 456 N.E.2d 1081, 1084
       (Ind. Ct. App. 1983). A sentence which is contrary to, or violative of, the
       penalty mandated by the applicable statute is an illegal sentence. Id. When
       the sentence imposed by the trial court is found to be improper, it is the
       general if not unanimous rule that the trial court has the power to vacate the
       illegal sentence and impose a proper one. Williams v. State, 494 N.E.2d
       1001, 1004 (Ind. Ct. App. 1986); see Devaney v. State, 578 N.E.2d 386,
       389 (Ind. Ct. App. 1991) (holding that it is the duty of the appellate courts
       to bring illegal sentences into compliance even if the correction
       subsequently increases the sentence). Imposition of the corrected sentence
       does not run afoul of the prohibition against double jeopardy. Id.

               The application of I.C. § 35-38-1-7.1 is only required when the
       defendant engages in an “episode of criminal conduct.”                 Because
       Lockhart’s actions do not constitute an “episode,” the sentence originally
       imposed by the trial court contravened the statute and is an illegal sentence.
       See Niece, 456 N.E.2d at 1084. Accordingly, we remand this cause to the
       trial court with instructions to impose a statutorily authorized sentence.

Lockhart, 671 N.E.2d at 904-05 (emphases added); see also Young v. State, 901 N.E.2d

624, 626 (Ind. Ct. App. 2009) (holding sua sponte that defendant’s sentence was illegal

and ordering an increase to the executed portion of his sentence), trans. denied.

       Likewise here, Russell’s ten-year sentence was based solely on an erroneous

application of Indiana Code Section 35-50-1-2. Russell’s offenses do not constitute an


       3
          Ten years is the advisory sentence for a Class B felony, which is one class higher than the C
felonies with which Russell was convicted.
                                                  7
“episode” subject to the limitations imposed by Indiana Code Section 35-50-1-2. On

these facts, the sentence imposed by the trial court contravened the statute and is an

illegal sentence. See Lockhart, 671 N.E.2d at 904-05.

      In their supplemental briefs, the parties concede that Russell’s crimes do not

constitute an episode of criminal conduct under the statute. Nevertheless, they contend

that the plea agreement is valid and enforceable. We cannot agree.

      Our supreme court has held 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.

Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994) (citation and quotation omitted).

But, “as a general proposition[,] a contract made in violation of a statute is void and

unenforceable.” Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004).

      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. Harbour v. Arelco, Inc.,
      678 N.E.2d 381, 385 (Ind. 1997); see also 17A C.J.S. Contracts 297 (1999)
      (“[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.

(Some citations omitted; emphasis added).

      Here, the parties attempt to treat the ten-year sentence as severable.             But

sentencing is a material element of every plea agreement, and we cannot say either that

Russell would have pleaded guilty under the plea agreement without the ten-year cap on
                                             8
his sentence or that the State would have agreed to the terms of the plea agreement

without its erroneous understanding of Indiana Code Section 35-50-1-2. 4 And we reject

Russell’s other arguments in his supplemental brief that the plea agreement, including the

sentencing cap, should be upheld. In particular, Russell states:

       Neither Russell nor the State wished to undo the agreement they reached.
       Doing so would expose Russell to a much greater overall sentence, and it
       would require the State to spend a great deal of time and money taking the
       case to trial. Most importantly, declaring the plea agreement void and
       unenforceable in this case would require the young victims, who likely took
       comfort in knowing that the matter had finally been resolved, to appear in
       court and testify about their abuse.

Appellant’s Supp. Brief at 9.

       To the contrary, the parties’ desire for expediency has no bearing on the validity of

the plea agreement. Moreover, while we acknowledge the local prosecutor’s discretion in

such matters, there is no question that this case is exactly the type of case that the State

should be expending its time and resources prosecuting. And we cannot sanction an

illegal sentence. While we respect the consideration that the victims should be spared the

burden of testifying at trial, this concern does not justify enforcement of an illegal

agreement.

       The parties also maintain that the mischaracterization of Russell’s crimes as an

episode of criminal conduct is harmless because a ten-year sentence could otherwise be

lawfully imposed with these convictions, and the parties could have agreed to cap his

sentence at ten years without invoking the statute. Thus, they contend that the plea

agreement survives because the references to the statutory limitation in the plea

       4
          Although the parties have provided us with supplemental briefs on this issue, the record is
devoid of evidence whether Russell would have entered into the plea agreement absent the illegal
sentence.
                                                 9
agreement and the sentencing order were surplusage. But we are not inclined to ignore

the parties’ intent as expressed in the plain language of the agreement. The parties based

their plea agreement on a statute that they both now concede does not apply.

       Further, and significantly, the trial court likewise relied on the statute when it

accepted the plea agreement and imposed Russell’s sentence. The parties assume that the

trial court would have approved the plea agreement with the sentence capped at ten years

without the stated statutory limitation, but we read the trial court’s sentencing order

differently.     The trial court found that, “the nature and circumstances of the crime are

extreme and aggravate the sentence.” Appellant’s App. at 97. And the court imposed

three sets of concurrent eight-year sentences with the three sets to be served

consecutively, for a total executed sentence to the Department of Correction of twenty-

four years, after which the court stated, “However, pursuant to the limitation imposed by

IC § 35-50-1-2, defendant’s aggregate, consecutive sentence is limited to ten (10)

years[.]”      Id. at 98.   The sentencing statement indicates that, but for the statutory

limitation, the trial court would have sentenced Russell to twenty-four years executed.

Thus, expressly relying on the language of the parties’ plea agreement, the trial court

incorrectly applied the statutory limitation imposed by Indiana Code Section 35-50-1-2.

Accordingly, as it stands now, the mistaken statutory reference cannot be severed because

it was a material element of both the plea agreement and the sentence, and we cannot say

that Russell, the State, or the trial court would have agreed to or accepted the plea without

the erroneous language that purported to cap Russell’s sentence. We must conclude that

the misapplication of the statute was not harmless and, therefore, not severable.


                                              10
        In sum, the plea agreement and sentence were based on the faulty premise that

Russell’s sentence must be limited to ten years under Indiana Code Section 35-50-1-2(c).

Thus, the sentence imposed pursuant to the plea agreement was an erroneous sentence,

and we cannot uphold Russell’s plea agreement with the sentencing cap intact. See Lee,

816 N.E.2d at 38. We reverse Russell’s sentence and remand to the trial court with the

following instructions:        on remand, Russell shall first have the option to ratify and

proceed with the current plea agreement without the illegal sentencing limitation. If he

chooses that option and enters an open plea on all five counts, the trial court shall have

total discretion in resentencing Russell, and he would face a possible maximum sentence

of fifty-six years. 5 If he does not exercise that option within thirty days after this opinion

has been certified (unless extended by the trial court), the plea agreement shall be

vacated. See, e.g., Alvey v. State, 911 N.E.2d 1248, 1251 (Ind. 2009) (holding that the

defendant had the option to keep his plea agreement without an unenforceable provision).

        Reversed and remanded with instructions.

VAIDIK, C.J., and BROWN, J., concur.




        5
           In exchange for Russell’s plea, the State dismissed four counts. If Russell rejects the current
plea agreement and the State reinstates the dismissed counts, Russell’s possible maximum sentence would
be sixty-eight years. The trial court has discretion to run all of the convictions consecutively in light of
the aggravators, including the fact that Russell abused his position of trust with each of the three victims.
                                                     11
