
ATTORNEYS FOR APPELLANT                 ATTORNEYS FOR APPELLEE

Susan K. Carpenter                      Karen Freeman-Wilson
Public Defender of Indiana        Attorney General of Indiana

Tracy A. Nelson                   Eileen Euzen
Deputy Public Defender            Deputy Attorney General
Indianapolis, Indiana             Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



JOHN B. ELLIS,                          )
                                        )
      Appellant (Defendant Below),      )
                                        )  No. 10S05-0010-PC-593
            v.                          )  in the Supreme Court
                                        )
STATE OF INDIANA,                       )  No. 10A05-9908-PC-343
                                        )  in the Court of Appeals
      Appellee (Plaintiff Below). )








                     APPEAL FROM THE CLARK CIRCUIT COURT
                 The Honorable James Kleopfer, Special Judge
                         Cause No. 10C01-8901-CF-022



                               March 23, 2001

SHEPARD, Chief Justice.



      Appellant John B. Ellis seeks post-conviction  relief,  claiming  that
his guilty pleas to four rapes and related crimes were  involuntary  because
the trial judge rejected the initial plea agreement as  likely  too  lenient
and indicated during the hearing the minimum sentence he would  accept.   We
grant transfer to clarify the law  about  a  judge’s  proper  role  in  such
matters, and affirm the denial of post-conviction relief.



                        Facts and Procedural History


      In January 1989,  the  State  charged  Ellis  with  numerous  felonies
arising from four separate rapes that occurred in  Jeffersonville  during  a
six-week period in early 1988.   Ellis entered into a  plea  agreement  that
provided for twenty-year concurrent sentences on all charges.   On  February
15, 1990, the court conducted a hearing on the proposed  agreement.   During
the hearing, one of the victims, Jennifer  Himelick,  described  her  ordeal
and objected to the proposed sentence.  The trial judge  decided  to  reject
the agreement, saying:
      What I’m going to do is somewhat unusual because I  don’t  usually  do
      this in these  cases  and  I  want  to  make  certain  that  everybody
      understands  that  I  respect  [the  prosecutor’s]  decision  and  the
      decision of these other women in this situation so I’m  not  going  to
      accept the Agreement today.  I’m going to state what I will accept  in
      this  particular  instance.   I’ll  accept  the  Agreement  with   all
      concurrent sentences opting out Counts V and VI as it applies  to  Ms.
      Himelick and her case will go to trial  or  I  will  accept  the  Plea
      Agreement opting out Ms. Himelick’s charges, Count V and VI, and  then
      if Mr. Ellis accepts the plea and takes 20 years on the  Rape  in  Ms.
      Himelick’s case and agrees to accept  consecutive  sentencing  in  her
      case then I’ll accept the Plea Agreement.  So the sentences  would  be
      all concurrent with the exception of hers.  As it applies to her case,
      they would have to be consecutive . . . .


(R. at 162.)

      Defense counsel asked if the court would  grant  a  change  of  venue,
based on local media coverage of the case, should  Ellis  decide  to  go  to
trial on  the  Himelick  charges.   The  judge  indicated  openness  to  the
request, subject  to  a  hearing  to  assess  the  extent  of  bias  in  the
community, and suggested the possibility of  calling  a  “test  jury.”   The
court also cautioned Himelick that a trial would not necessarily  result  in
a conviction, because Himelick was unable to identify  Ellis  positively  as
her attacker and because the admissibility of  DNA  evidence  against  Ellis
had not yet been determined.


      Ellis knew that he faced a potential sentence of  over  300  years  if
convicted on all counts at trial.  He discussed his  alternatives  with  his
attorney.


      Two months later, the parties submitted  a  new  plea  agreement  that
provided for a twenty-year sentence for all the charges related to  Himelick
followed by concurrent twenty-year sentences  on  all  other  charges.   The
aggregate sentence of forty years was, of course, consistent with  what  the
judge previously said he would accept.


      At a hearing on this new agreement, the court fully advised  Ellis  of
his rights and established a factual basis for  the  plea.   Ellis  affirmed
that he understood the plea  agreement  and  that  his  plea  was  free  and
voluntary.  His counsel expressed the  opinion  that  Ellis  would  gain  no
advantage in proceeding to trial because  the  DNA  evidence  could  not  be
successfully challenged.  The  court  approved  the  agreement  and  imposed
sentence in accordance with it.


      Ellis has argued in this post-conviction proceeding that  the  judge’s
comments in rejecting the first plea proposal  rendered  Ellis’  final  plea
involuntary.   (Appellant’s  Br.  at  1.)   Ellis  asserts  that  “he   felt
pressured into accepting the judge’s terms for fear of  receiving  a  longer
sentence if he went to trial and further believed he could not  get  a  fair
trial if he did not accept the judge’s terms.”  (Appellant’s Br. at 17.)


      The  post-conviction  court  denied  relief.   The  Court  of  Appeals
affirmed, holding that Ellis failed to establish his grounds for  relief  by
a preponderance of the evidence.  Ellis v. State,  734  N.E.2d  311,  312-14
(Ind. Ct. App. 2000).

      A petitioner claiming that his or her guilty plea was involuntary, and
appealing from a denial of post-conviction relief, must show  the  reviewing
court “that the evidence presented during  the  post-conviction  proceedings
is without conflict and, as a whole, leads unerringly and unmistakably to  a
decision opposite that reached by  the  post-conviction  court.”   Curry  v.
State, 674 N.E.2d 160, 161  (Ind.  1996)  (citing  Spranger  v.  State,  650
N.E.2d 1117, 1119 (Ind. 1995)).





              Limits on Judicial Involvement in Plea Agreements



      A defendant’s guilty plea must be  voluntary.   White  v.  State,  497
N.E.2d 893 (Ind. 1986).  The trial judge has a duty to assure that  this  is
so, and also to  impose  a  sentence  that  fits  both  the  crime  and  the
offender.  Judicial participation  in  plea  bargaining  therefore  presents
special cause for concern.  As the Ohio Supreme Court  warned  in  State  v.
Byrd, 407 N.E.2d 1384, 1387 (Ohio 1980):
      A judge’s participation in the actual bargaining  process  presents  a
      high potential for coercion.  The defendant often views the  judge  as
      the final arbiter of his fate or at  the  very  least  the  person  in
      control of the important environment of the courtroom.  He may be  led
      to believe that this person considers him guilty of the crime  without
      a chance of proving otherwise.  He may infer that he will not be given
      a fair opportunity to present his case.  Even if he wishes  to  go  to
      trial, he may perceive the trial as a hopeless and dangerous  exercise
      in futility.


      Our own modern examination of the judicial  role  in  bargained  cases
commenced with Anderson v. State, 263  Ind.  583,  335  N.E.2d  225  (1975).
There, the trial judge and Anderson negotiated an agreement for  a  plea  in
return  for  an  executed  sentence  of  eleven  years,  over  the  apparent
opposition of the prosecutor.  Id. at 586, 335 N.E.2d  at  227.   The  judge
openly acknowledged his role,  saying:   “The  Court  accepts  the  plea  of
guilty with the plea bargaining done  by  the  Court.   Show  that  in  your
record, so it[’]s not the Prosecutor’s fault, it’s not the Sheriff’s  fault,
I’ll take the blame for it.”  Id.


      This Court took a dim  view  of  the  idea  that  the  judge  and  the
defendant  would  negotiate  a  disposition.   While  concluding  that  such
bargaining did not render  a  plea  involuntary  as  a  matter  of  law,  we
observed that the analysis of the facts and circumstances of such  an  event
occurs “from the perspective that judicial participation in plea  bargaining
is highly suspect.”  Id. at 587, 335  N.E.2d  at  228.   A  judge’s  primary
responsibility  is  to  maintain  the  integrity  of  the  legal  system  by
personifying evenhanded justice, recognizing that the  judge’s  considerable
sentencing  power  may  strongly  influence  the  accused.   Id.   (citation
omitted).


      The sentencing judge in this case, of course, was  hardly  negotiating
one-on-one with the defendant as the trial judge had done in Anderson.

      Rather, the court followed a standard path for entertaining a  bargain
submitted by the parties.  The judge ordered a presentence  report  and  had
it before him on the date set for sentencing.  He  heard  testimony  by  the
victim, the arguments of counsel, and so on.  This was  in  accordance  with
the provisions of our statute governing entry of  judgment  and  sentencing,
Ind. Code Ann. 35-38-1 (West  1998).[1]   The  Code  contemplates  that  the
court will approve the plea agreement and sentence in accordance with it  or
reject the agreement and move the case along towards trial  or  a  different
proposed agreement.  See, e.g., Ind. Code Ann. § 35-35-3-3 (West 2000).

      Cases  following  Anderson  provide   insight   into   when   judicial
involvement does or does not go too far.  In Williams v. State,  449  N.E.2d
1080 (Ind. 1983), after the defendant pled guilty, the court  observed  that
he was fortunate to have worked out  an  agreement  because  a  jury  likely
would have convicted him of kidnapping, which  would  have  carried  a  life
sentence.  Id. at 1081.  The defendant later  withdrew  his  plea  with  the
court’s permission but then re-entered it after his co-defendant  agreed  to
testify against him.  Id. at 1082.  The court again told the  defendant  how
fortunate he was to have  avoided  almost  certain  conviction  and  a  life
sentence.  Id.

      In affirming denial of Williams’ post-conviction voluntariness  claim,
we  distinguished  Anderson  by  noting  that  the  trial  court   did   not
participate in the negotiations.  Id.  at  1083.   Further,  the  record  in
Williams “command[ed] an  inference”  that  the  guilty  plea  to  a  lesser
offense was based on the strength of the evidence and  not  on  the  judge’s
comments.  Id.

      By contrast, we concluded that a judge had gone too far  in  the  very
recent case of Garrett v. State, 737 N.E.2d  388  (Ind.  2000).   The  trial
judge  pressed  Garrett  at  length  to  plead  guilty  by  emphasizing  the
potential sentence and ultimately declaring, “I’m telling you,  if  it’s  me
and you get found guilty with this record you’ll get  the  [maximum]  eighty
years.”  Id. at 389.   The judge went on to ask, in  a  disparaging  manner,
what defense Garrett planned to present.  Id.  We refused to condone  either
the query and comments on Garrett’s defense or the  “depth  of  the  court’s
inquiry regarding Garrett’s decision to go to trial.”  Id. at 391.  We  also
disapproved the court’s statement of its sentencing intentions  as  “clearly
inappropriate.”[2]  Id.

      Ellis’  circumstances  are  more  akin  to  Williams  than  to  either
Anderson or Garrett.  Unlike in Anderson, where  the  trial  court  actually
took credit for conducting the negotiation, the court here merely  responded
to a proposed agreement that had been previously negotiated by  the  parties
without any involvement by the court.

      Unlike Garrett, the court here did not  pressure  Ellis  to  enter  or
even consider a guilty plea.  Indeed, one of the two alternatives the  judge
suggested involved trial on one set of charges.   Nor  did  the  court  here
threaten or otherwise express any  intent  to  impose  an  especially  harsh
sentence if Ellis opted  to  proceed  to  trial.   In  further  contrast  to
Garrett, the court did not disparage Ellis’ proposed defense.  In fact,  the
judge pointed out in Ellis’ presence that the State’s  case  relied  on  DNA
evidence that might or might not be admissible at trial.

      Here, as in Williams, the court reacted to a proposed plea only  after
it was negotiated by the parties and presented to  the  court  as  a  mutual
agreement.  The court  did  not  engage  in  any  “unnecessary  and  unwise”
“editorializing.”  Williams, 449 N.E.2d at 1083.  The parties here  proposed
an agreement that the court, exercising its discretion, declined to  accept.
 Rather than sending the parties away to guess  again  at  what  might  pass
muster in some judicial version of hide-the-ball, the court  indicated  that
the proposal was too lenient and offered  two  alternatives  that  it  would
deem acceptable, given the nature of the charges and what the court  already
knew from the presentence report and the hearing.


      While judicial involvement in plea negotiations can certainly  go  too
far, a complete prohibition on judicial comment regarding  a  proposed  plea
agreement would create a separate set of problems.  When a  court  exercises
its discretion to reject a plea agreement, it is in both parties’  interests
that the court explain its reasons.  See United  States  v.  Rodriguez,  197
F.3d 156, 158 (5th Cir. 1999)  (noting  that  federal  district  courts  may
express their reasons for rejecting plea agreements).  If a  proposal  falls
outside the range of what the  court  regards  as  reasonable,  it  will  be
helpful to the parties to know whether the  court  found  the  proposal  too
lenient or too harsh, so that they may re-negotiate if  both  choose  to  do
so.  This Court sometimes follows such a practice when it sits  as  a  court
of first instance in hearing attorney discipline cases.  See,  e.g.,  Matter
of Haecker, 664 N.E.2d 1176 (Ind. 1996)  (parties  informed  that  bargained
sanction was too lenient; later agreement with greater sanction approved).


      While the American Bar Association’s Standards  for  Criminal  Justice
have changed over time, Indiana’s statutory procedure and  the  sequence  of
events in this case are largely congruent with the current version of  these
standards:
      A  judge  should  not  ordinarily  participate  in  plea   negotiation
      discussions among the parties.  Upon the request  of  the  parties,  a
      judge may be presented with a proposed plea  agreement  negotiated  by
      the parties and may indicate whether the court would accept the  terms
      as proposed and if relevant, indicate what sentence would be  imposed.
      Discussions relating to  plea  negotiations  at  which  the  judge  is
      present need not be recorded  verbatim,  so  long  as  an  appropriate
      record is made at the earliest opportunity.  For good cause, the judge
      may order the record or transcript  of  any  such  discussions  to  be
      sealed.[3]


A.B.A. Standards for Criminal Justice 14-3.3(d) (3d ed. 1997).

      As the Standards indicate, a court  may  offer  guidance  as  to  what
sentence  it  might  find  marginally  acceptable,  taking  into  account  a
presentence report prepared by the probation department.  The  message  must
not, of course, carry any express or implied threat that the  defendant  may
be denied a fair trial or punished  by  a  severe  sentence  if  he  or  she
declines to plead guilty.  Matter of  Cox,  680  N.E.2d  528,  529-30  (Ind.
1997) (judge disciplined for telling defendant that those  who  demand  jury
trial and get convicted receive higher sentences).

      The trial judge’s response to  the  original  plea  proposal  did  not
render Ellis’ eventual guilty plea involuntary.  The  court  did  not  press
Ellis to plead guilty rather  than  to  proceed  to  trial.   Faced  with  a
proposed  sentence  that  fell  outside  the  range  the  court   considered
reasonable, it merely advised the parties of the low end of that  range,  as
guidance for any further negotiations.  It did so in a way that  carried  no
express  or  implied  threat  of  punishment.   The  judge’s  agreement   to
entertain a request  for  a  change  of  venue,  and  his  emphasis  on  the
unresolved  DNA  admissibility  issue,   demonstrated   that   he   retained
appropriate open-minded impartiality regarding the case.


      After his initial plea was rejected, Ellis had two months to  consider
his alternatives  with  the  advice  of  counsel.   The  court  again  fully
apprised Ellis of his rights and  the  consequences  of  his  revised  plea.
Ellis asserted on the record that his plea decision was free and  voluntary.
 We agree that it was.


                                 Conclusion

      We affirm the denial of post-conviction relief.


Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Indiana Code § 35-38-1-3 says:
      Before sentencing a person for a felony,  the  court  must  conduct  a
      hearing  to  consider  the  facts  and   circumstances   relevant   to
      sentencing.  The person is entitled to subpoena and call witnesses and
      to present information in his own behalf.   The  court  shall  make  a
      record of the hearing, including:
   1) a transcript of the hearing;
   2) a copy of the presentence report; and
        3) if the  court  finds  aggravating  circumstances  or  mitigating
           circumstances, a statement of the court’s reasons for  selecting
           the sentence that it imposes.
      Indiana Code § 35-38-1-8 provides, in relevant part:
      (a)   Except as provided in subsection (c), a defendant convicted of a
      felony may not be sentenced before a  written  presentence  report  is
      prepared by a probation  officer  and  considered  by  the  sentencing
      court.  Delay of sentence until a presentence report is prepared  does
      not constitute an indefinite postponement or suspension of sentence.
      (b)   A victim present at sentencing in a felony or  misdemeanor  case
      shall be advised by the court of a victim’s right to make a  statement
      concerning the crime and sentence.

[2] Garrett waived this claim for review, however, by failing to object or
otherwise challenge the judge’s actions before he declined to plead guilty
and proceeded to trial.  Garrett, 737 N.E.2d at 391.
[3] In this case, of course, the entire exchange during the plea hearing
was recorded verbatim.  Where discussion occurs in a setting such as a pre-
trial conference, a pre-trial order or a chronological case summary
notation will frequently suffice.

