MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Nov 10 2015, 9:52 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Deputy Attorney General




                                           IN THE
     COURT OF APPEALS OF INDIANA
Sean R. Schaffer,                                        November 10, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1504-CR-136
        v.                                               Appeal from the Dearborn
                                                         Superior Court 2
State of Indiana,                                        The Honorable J. Steven Cox,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         15D02-1409-F6-408



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 15A01-1504-CR-136 | November 10, 2015   Page 1 of 5
[1]   Sean R. Schaffer appeals his conviction following a plea of guilty to Official

      Misconduct,1 a Level 6 felony. On appeal, Schaffer argues that his conviction is

      void because no written plea agreement was made part of the record.


[2]   We affirm.


                                       Facts & Procedural History

[3]   Throughout most of 2014, Schaffer worked as a probation officer in Dearborn

      County. While performing his duties, Schaffer stole hydrocodone tablets from

      a probationer under his supervision. As a result, Schaffer was charged with

      official misconduct and two counts of theft. Schaffer subsequently entered into

      a written plea agreement with the State, pursuant to which Schaffer would

      plead guilty to official misconduct in exchange for the dismissal of the theft

      charges and sentencing would be left to the discretion of the trial court. A

      guilty plea hearing was held on October 1, 2014, at which the trial court was

      apparently presented with a copy of the written plea agreement. The trial court

      expressed uncertainty as to the need for a plea agreement, noting that the

      agreement did not bind the court to anything. Defense counsel explained that

      the agreement was a product of “charge bargaining as opposed to plea

      bargaining[.]” Transcript at 9. The court read the plea agreement into the

      record and confirmed that Schaffer understood its terms. After the State

      established a factual basis, Schaffer withdrew his preliminary plea of not guilty



      1
          Ind. Code § 35-44.1-1-1.


      Court of Appeals of Indiana | Memorandum Decision 15A01-1504-CR-136 | November 10, 2015   Page 2 of 5
      to official misconduct and pled guilty pursuant to the plea agreement. The trial

      court accepted Schaffer’s guilty plea, granted the State’s motion to dismiss the

      theft charges, and set the matter for a separate sentencing hearing.


[4]   At the sentencing hearing, the trial court acknowledged that Schaffer had pled

      guilty to official misconduct, but stated that it did not understand the negotiated

      plea agreement and did not recall accepting it. Defense counsel again explained

      that the parties’ intention was to “charge bargain”, i.e., that Schaffer would

      plead guilty to official misconduct in exchange for the dismissal of the theft

      charges, and that sentencing would be left to the trial court’s discretion. Id. at

      29. Defense counsel stated that he was uncertain as to whether the plea

      agreement had been formally rejected or accepted. The State again moved to

      dismiss the theft charges, which the trial court granted. The State and defense

      then presented evidence and argument on sentencing. The trial court ultimately

      sentenced Schaffer to two and one-half years in the Department of Correction,

      with six months suspended to probation. Schaffer now appeals.


                                          Discussion & Decision

[5]   On appeal, Schaffer argues that his conviction is void because no written plea

      agreement was properly filed with the court, as required by Ind. Code § 35-35-3-

      3. It is well settled, however, that a person who pleads guilty cannot challenge

      his conviction on direct appeal. Robey v. State, 7 N.E.3d 371, 383 (Ind. Ct. App.

      2014) (citing Kling v. State, 837 N.E.2d 502, 504 (Ind. 2005), and Tumulty v.

      State, 666 N.E.2d 394, 394-95 (Ind. 1996)), trans. denied. This is the case even


      Court of Appeals of Indiana | Memorandum Decision 15A01-1504-CR-136 | November 10, 2015   Page 3 of 5
      when the record would otherwise be adequate to resolve the issue presented.

      Tumulty, 666 N.E.2d at 395-96. Instead, claims of error in the acceptance of a

      guilty plea must be presented through a petition for post-conviction relief under

      Indiana Post-Conviction Rule 1. Id. Therefore, even assuming arguendo that

      the requirements of I.C. § 35-35-3-3 were not satisfied, we must affirm

      Schaffer’s conviction.

[6]   Schaffer also argues in passing that the trial court erred in sentencing him.

      “Although a person who pleads guilty is not permitted to challenge the

      propriety of a conviction on direct appeal, he or she is generally entitled to

      contest the merits of the trial court’s sentencing decision when the trial court

      exercises its discretion.” Holsclaw v. State, 907 N.E.2d 1086, 1088 (Ind. Ct. App.

      2009). In this case, Schaffer does not argue that his sentence is inappropriate

      pursuant to Indiana Appellate Rule 7(B) or in excess of the statutory maximum.

      Instead, he argues that the trial court erred in sentencing him beyond the

      advisory sentence recommended by the State at the sentencing hearing. In

      support of this argument, Schaffer cites St. Clair v. State, 901 N.E.2d 490, 493-94

      (Ind. 2009), in which our Supreme Court held that, under the facts of that case,

      a written plea agreement providing that the State would “recommend” a

      particular sentence was intended to be a fixed plea agreement, under which the

      trial court was bound to impose the specified sentence. St. Clair is inapposite.

      It is clear from the record that the plea agreement in this case, regardless of

      whether it was oral or written, contained no sentencing recommendation and

      left sentencing to the trial court’s discretion. The State’s verbal


      Court of Appeals of Indiana | Memorandum Decision 15A01-1504-CR-136 | November 10, 2015   Page 4 of 5
      recommendation at the sentencing hearing did nothing to change the terms of

      the plea agreement.


[7]   Judgment affirmed.

[8]   Riley, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1504-CR-136 | November 10, 2015   Page 5 of 5
