MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           Oct 29 2015, 8:37 am
this Memorandum Decision shall not be
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Jonathan O. Chenoweth                                    Justin F. Roebel
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Aaron Brubaker,                                          October 29, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         43A05-1507-PC-769
        v.                                               Appeal from the Kosciusko
                                                         Superior Court
State of Indiana,                                        The Honorable David C. Cates,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         43D01-1301-FD-56



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015   Page 1 of 8
[1]   In 2013, Appellee-Respondent the State of Indiana (“the State”) charged

      Appellant-Petitioner Aaron Brubaker with four Class D felonies: resisting law

      enforcement, auto theft, and two counts of theft. The State also charged

      Brubaker with being a habitual offender. The parties entered into a plea

      agreement by which the State agreed to drop the habitual offender charge and

      Brubaker pled guilty to the remaining charges. Additionally, the executed

      portion of Brubaker’s sentence was to be capped at five years. The trial court

      accepted Brubaker’s plea and sentenced him to a term of five years.


[2]   Brubaker subsequently filed a petition for post-conviction relief (“PCR”) in

      which he claimed that the five-year sentence imposed by the trial court was

      illegal because his crimes constituted a single episode of criminal conduct and,

      therefore, the maximum aggregate sentence allowed for his four convictions

      was four years. The State argues that even if the sentence is illegal, Brubaker

      agreed to the illegal sentence in his plea agreement and so is bound by that

      agreement. We affirm.



                            Facts and Procedural History
[3]   On January 23, 2013, Brubaker was charged with Class D felony resisting law

      enforcement, Class D felony auto theft, and two counts of Class D felony theft.

      He was also alleged to be a habitual offender. (App. 1) The parties entered into

      a plea agreement by which the State agreed to drop the habitual offender charge

      and Brubaker pled guilty to the remaining charges. (App. 97) The relevant

      portions of the plea agreement read as follows:

      Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015   Page 2 of 8
              [T]here is no limitation upon the Court’s authority to impose any
              sentence or dispositional alternative authorized under the law…;
              and that the Court may enter any lawful sentence whether
              presumptively or alternatively provided, and whether by way of
              mitigation or aggravation. The State of Indiana does agree that
              the initial executed sentence will not exceed five (5) years (total
              after consecutive sentencing on each count). Each count’s
              sentence shall run consecutive….The Court may, however,
              impose a longer sentence of imprisonment either by providing for
              presumptive sentence or by way of aggravation but that any such
              sentence so imposed which exceeds the number months which
              may be imposed under this agreement as an original executed
              prison term shall be suspended by the Court….

                                                     ****

              The Defendant knowingly, intelligently, and voluntarily waives
              his right to appeal any sentence imposed by the trial court that is
              within the range set forth in this plea agreement, and waives his
              right to have the Court of Appeals review his sentence under
              Indiana Appellate Rule 7(B).

      Appellant’s App. p. 97-98.


[4]   On October 24, 2013, the trial court accepted the plea agreement and sentenced

      Brubaker to one-and-a-half year consecutive terms on each conviction, resulting

      in an aggregate six-year term. (App. 7) The trial court later amended the

      judgment to shorten the sentence on one of Brubaker’s theft convictions to six

      months, reducing the aggregate sentence to five years. (App. 8) On June 11,

      2014, Brubaker filed a PCR petition. (App. 9) The parties then filed competing

      motions for summary judgment. (App. 10-11) On June 8, 2015, the post-

      conviction court entered an order denying Brubaker’s PCR petition. Brubaker

      appeals.

      Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015   Page 3 of 8
                                  Discussion and Decision
[5]   Pursuant to Post-Conviction Rule 1(4)(g)1, the post-conviction court granted the

      State’s motion for summary disposition. “An appellate court reviews the grant

      of a motion for summary disposition in post-conviction proceedings on appeal

      in the same way as a motion for summary judgment.” Norris v. State, 896

      N.E.2d 1149, 1151 (Ind. 2008) (citing Allen v. State, 791 N.E.2d 748, 752 (Ind.

      Ct. App. 2003), trans. denied). “Thus summary disposition, like summary

      judgment, is a matter for appellate de novo determination when the

      determinative issue is a matter of law, not fact.” Id. (citing Burnside v. State, 858

      N.E.2d 232, 237 (Ind. Ct. App. 2006)).


[6]   Brubaker argues that his five-year sentence violates the statutory limitation on

      consecutive sentences for crimes arising from a single episode of criminal

      conduct under Indiana Code section 35-50-1-2(c) (2013), which provided that


              except for crimes of violence, the total of the consecutive terms of
              imprisonment…to which the defendant is sentenced for felony
              convictions arising out of an episode of criminal conduct shall
              not exceed the advisory sentence for a felony which is one (1)
              class of felony higher than the most serious of the felonies for
              which the person has been convicted.




      1
        “The court may grant a motion by either party for summary disposition of the petition when it appears from
      the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits
      submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a
      matter of law.” P-C.R. 1(4)(g).

      Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015           Page 4 of 8
      The State acknowledged at the post-conviction court that, pursuant to this

      statute, the maximum sentence Brubaker could have received for the four Class

      D felony convictions was four years2 (the advisory term for a Class C felony)

      but argues that Brubaker consented to the unlawful sentence in his plea

      agreement and so he cannot now dispute that sentence. (App. 103)


[7]   In Lee v. State, the State charged Lee with Class C felony robbery and alleged

      that he was a habitual offender. 816 N.E.2d 35, 37 (Ind. 2004). Under the

      terms of a plea agreement, Lee pled guilty to robbery in exchange for the State’s

      dismissal of the habitual offender allegation. The trial court sentenced Lee,

      pursuant to the terms of the plea, to a term of eight years imprisonment to run

      consecutively to a three-year sentence Lee was serving for an unrelated theft

      conviction. At the time of sentencing, the trial court lacked statutory authority

      to order the sentences to be served concurrently. Id. Nonetheless, the Indiana

      Supreme Court upheld the illegal sentence.

              The record shows that the evidence against Lee on the charge of
              robbery was overwhelming. By agreeing to plead guilty to the
              charge in exchange for the State dismissing an habitual offender
              allegation, Lee reduced his penal exposure by thirty years. See
              Ind. Code 35-50-2-8(e)….

              Under some circumstances, the appropriate remedy to address an
              illegal sentence like the one here is to sever the illegal sentencing
              provision from the plea agreement, and remand the cause to the



      2
       On appeal, the State claims that it only accepted Brubaker’s allegations that his offenses constituted a
      “single episode” of criminal conduct under Indiana Code section 35-50-1-2(c) for purposes of obtaining a
      summary disposition at the post-conviction court and that it does not concede the issue.

      Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015            Page 5 of 8
              trial court with instructions to enter an order running the
              sentences concurrently. However Lee is entitled to no such
              relief. A defendant “may not enter a plea agreement calling for
              an illegal sentence, benefit from that sentence, and then later
              complain that it was an illegal sentence.” Collins v. State, 509
              N.E.2d 827, 833 (Ind. 1987). As this Court has more recently
              explained: “[D]efendants who plead guilty to achieve favorable
              outcomes give up a plethora of substantive claims and procedural
              rights, such as challenges to convictions that would otherwise
              constitute double jeopardy. Striking a favorable bargain including a
              consecutive sentence the court might otherwise not have the ability to
              impose falls within this category.” Davis v. State, 771 N.E.2d 647,
              649 n. 4 (Ind. 2002) (citation and quotation omitted).

      Id. at 39 (emphasis added, footnote omitted); see also Crider v. State, 984 N.E.2d

      618, 623 (Ind. 2013) (“[I]n Indiana, a defendant can waive his right to appeal

      an illegal sentence….[W]here a plea agreement provides for the illegality later

      challenged, a valid waiver contained therein will be upheld.”); see also Games v.

      State, 743 N.E.2d 1132, 1135 (Ind. 2001) (“[A] defendant with adequate counsel

      who enters a plea agreement to achieve an advantageous position must keep the

      bargain. Once the defendant bargains for a reduced charge, he cannot then

      challenge the sentence on double jeopardy grounds.”); see also Stites v. State, 829

      N.E.2d 527 (Ind. 2005) (concluding that although the trial court lacked

      statutory authority to order consecutive sentences under the circumstances, it

      had such authority by the terms of a plea agreement, and the defendant could

      not be heard to complain because she had benefited from that agreement).


[8]   Brubaker acknowledges that he received a benefit by the State’s agreement to

      drop the habitual offender charge. Brubaker also acknowledges that “when a


      Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015   Page 6 of 8
       defendant explicitly agrees to a particular sentence or a specific method of

       imposition of sentences, whether or not the sentence or method is authorized by

       the law, he cannot later appeal such sentence on the ground that it is illegal.”

       Appellant’s App. p. 113 (quoting Crider, 984 N.E.2d at 625). However,

       Brubaker argues that his plea agreement “did not call for an illegal sentence; it

       called for the trial court to impose ‘any lawful sentence’ of no more than 5

       years.” Appellant’s App. p. 114.


[9]    Brubaker essentially argues that he did not agree to the illegal sentence imposed

       by the trial court. We disagree. The plea agreement which Brubaker agreed to

       explicitly authorized the trial court to impose a sentence in excess of four years.

       Specifically, the agreement provided that “the initial executed sentence will not

       exceed five (5) years (total after consecutive sentencing on each count),” and

       that “The Court may, however, impose a longer sentence of imprisonment

       either by providing for presumptive sentence or by way of aggravation.”

       Appellant’s App. p. 97-98. Brubaker “waive[d] his right to appeal any sentence

       imposed by the trial court that is within the range set forth in this plea

       agreement.” Appellant’s App. p. 98. The only logical reading of this

       agreement is that Brubaker consented to receiving a sentence potentially greater

       than four years. Therefore, we conclude that Brubaker consented to the

       unlawful sentence and so has waived his right to appeal his sentence on that

       basis.


[10]   The judgment of the post-conviction court is affirmed.



       Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015   Page 7 of 8
May, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015   Page 8 of 8
