Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          FILED
                                                            Sep 21 2012, 9:16 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

ANGELA WARNER SIMS                                 GREGORY F. ZOELLER
Hulse, Lacey, Hardacre, Austin & Sims, P.C.        Attorney General of Indiana
Anderson, Indiana
                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID T. STEPHANOFF,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 48A02-1112-CR-1129
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MADISON SUPERIOR COURT
                           The Honorable David A. Happe, Judge
                              Cause No. 48D04-0910-FD-429


                                       September 21, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
         David T. Stephanoff appeals the six-year cumulative sentence entered following his

guilty plea to three counts of Class D felony theft,1 one count of Class D felony receiving

stolen property,2 and one count of Class D felony fraud.3 He asserts his sentence violates the

terms of his plea agreement. We affirm, but remand for correction of the written sentencing

order.

                          FACTS AND PROCEDURAL HISTORY

         In October of 2009, Stephanoff worked for the Edgewood County Club

(“Edgewood”). Based on acts he committed while employed there, Stephanoff pled guilty to

five crimes: Class D felony theft of a golf putter from T.D. between October 13 and October

18 (“Count I”); Class D felony theft of golf clubs and bags from Edgewood between October

13 and October 18 (“Count II”); Class D felony fraud for using Edgewood’s credit card on

October 5 to purchase golf clubs from a distributor (“Count III”); Class D felony receiving

stolen property on October 8 for receiving or disposing of the golf clubs purchased from the

distributor (“Count IV”); and Class D felony theft of golf clubs, balls, a golf bag and other

equipment from Edgewood between October 13 and 18 (“Count V”).

         Stephanoff pled guilty to those crimes in open court without a written plea agreement.

During that change of plea hearing, the following discussion occurred:

         [Defense]:     Well, Judge, there is one (1) other agreement that I forgot to
                        memorialize on the record.
         [Court]:       All right.
         [Defense]:     And I think the State may have also . . . As I’m reviewing the

1
  Ind. Code § 35-43-4-2(a).
2
  Ind. Code § 35-43-4-2(b).
3
  Ind. Code § 35-43-5-4(1)(C).
                                               2
                      probable cause affidavit I recall it now. There could be some
                      argument, based upon the way these thefts occurred in [this
                      case], that the sentences should run concurrent . . . or could run
                      consecutive. However, we’ve agreed that they would run
                      concurrent for a total of thirty-six (36) months.
       [Court]:       That the maximum would be a total of thirty-six (36) months?
       [Defense]:     Yes.
       [Court]:       All right. Is that correct, [State]?
       [State]:       Yes, Your Honor.

(Tr. at 11.) The trial court accepted the pleas, entered five convictions, and ordered a pre-

sentence investigation report.

       At the sentencing hearing, the State requested the court impose a thirty-six month

sentence executed at the Department of Correction, and Stephanoff requested a suspended

sentence. The trial court said:

       Counsel, you’ve been talking about this in terms of a range from six (6) to
       thirty-six (36) months, I don’t believe that’s the case here. I think there is
       more sentencing range available. I’m actually going to impose a six (6) year
       sentence today. Three (3) of these counts I’m gonna run together and the other
       two (2) counts I’m gonna [run] together, and then run those consecutively . . .
       those sets consecutive to each other for a total of six (6) years. If you think
       there’s something that prevents that from happening let me know, but I’m not
       aware of anything that prevents that from happening. [ . . . ] So for Counts I, II,
       and V, on each of those counts, you’re sentenced to the Department of
       Corrections [sic] for three (3) years. Then on Counts III and IV, you’re also
       sentenced to three (3) years to the D.O.C. Those two (2) sets of offenses will
       run concurrently with each other but consecutive to the other sets. So I, II, and
       V run together but consecutive to III and IV, which run together. So there’s a
       total sentence of six (6) years, then, to the D.O.C.

(Id. at 53-54.)

                             DISCUSSION AND DECISION

       Stephanoff asserts the six-year sentence imposed by the trial court was not permitted


                                               3
by his plea agreement. Prior to addressing the merits of Stephanoff’s argument, we note he

did not object to his sentence when the trial court explicitly offered him an opportunity to do

so at the sentencing hearing. After argument from both parties, the court stated its intention

to impose a six-year sentence and said: “If you think there’s something that prevents that

from happening let me know, but I’m not aware of anything that prevents that from

happening.” (Tr. at 52.) Neither Stephanoff nor his counsel objected or argued the sentence

violated his plea agreement. A party may not stand idly by and allow the trial court to

commit error, but then complain about that error on appeal. See Angleton v. State, 714

N.E.2d 156, 159 (Ind. 1999) (regarding failure to object at sentencing to statutory defect).

Stephanoff has waived this argument for appeal. See id. (failure to object at the trial court

level waives argument for appeal).

        Notwithstanding that waiver, Stephanoff has not demonstrated his plea agreement

precluded a six-year sentence.4 Once a trial court accepts the plea agreement the State and a

defendant reach, it is bound by the terms of that agreement, St. Clair v. State, 901 N.E.2d

490, 492 (Ind. 2009), and has “only that degree of sentencing discretion provided in the

agreement.” Id. at 493. If a trial court sentences a defendant in a manner that conflicts with

the agreement, then we must reverse. See Shepperson v. State, 800 N.E.2d 658, 660 (Ind. Ct.

App. 2003) (reversing three-year sentence because oral plea agreement, which was accepted


4
 Stephanoff notes the following statement in the section of his pre-sentence investigation report (PSI) entitled
“PLEA AGREEMENT”: “The defendant is to plead guilty to all counts and they are to run concurrently.”
(Appellant’s Confidential Appendix at 37.) But the first sentence of that same section provides: “There is no
plea agreement in this cause.” (Id.) There was no written plea agreement and no indication where the
probation officer obtained the information for that section of the PSI. We cannot find fundamental error in
Stephanoff’s sentence based on those contradictory statements in the PSI.
                                                       4
by the trial court, provided maximum sentence of two years).

        At the change of plea hearing, Stephanoff’s counsel explained the sentencing

restriction: “There could be some argument, based upon the way these thefts occurred in [this

case], that the sentences should run concurrent . . . or could run consecutive. However,

we’ve agreed that they would run concurrent for a total of thirty-six (36) months.”5 (Tr. at

11.) Stephanoff was charged with three counts of theft, which were listed as Counts I, II, and

V on the Information. For those Counts, the trial court imposed three three-year sentences

and ordered those sentences served concurrently. Thus, as required by the agreement, the

trial court imposed concurrent sentences, not longer than 36 months, for the thefts.

        The reason Stephanoff’s sentence is six years, rather than just thirty-six months, is the

court also ordered three-year sentences for both Count III and Count IV, fraud and receiving

stolen property, respectively, and ordered those sentences served concurrent to each other but

consecutive to the thirty-six months for the thefts. In light of the language used by

Stephanoff’s counsel in describing the agreement, we cannot find fundamental error in the

order that the sentences for fraud and receiving stolen property be served consecutive to the

sentences for theft.

        Although we find no error in the court’s order Stephanoff serve the sentences for theft

consecutive to the sentences for his other two crimes, we must remand for correction of



5
 The court followed up by asking: “the maximum would be a total of thirty-six (36) months?” (Tr. at 11.)
Stephanoff’s counsel and the prosecutor both agreed. We interpret that question as clarifying whether the
concurrent sentences for theft were “fixed” at thirty-six months or were “open” to the court’s discretion, for
any sentence up to thirty-six months. See generally St. Clair, 901 N.E.2d at 492-3 (discussing sentencing
under fixed and open pleas).
                                                      5
scrivener’s error in the sentencing order. Therein, in the section entitled “3. Sentence” the

order states:

       Defendant is sentenced to 36 months on each count. Counts I, II, and III shall
       run concurrent with each other. Counts IV and V shall run concurrent with
       each other but consecutive to Counts I, II, and III. Total length of sentence is
       6 years.

(Appellant’s App. at 12.) Because Counts I, II, and V are the theft counts, and Count V is

ordered served consecutive to Counts I and II, the order as written violates Stephanoff’s plea

agreement. Accordingly, we remand for correction of the written sentencing order to reflect

the sentence announced by the court at the sentencing hearing. See Hightower v. State, 866

N.E.2d 356, 374 (Ind. Ct. App. 2007) (remanding for correction of the order so the counts of

the crimes for which Hightower was sentenced would match the counts of those crimes on

the amended information), trans. denied.

       Because Stephanoff has not demonstrated the order his sentences for fraud and

receiving stolen property be served consecutive to his sentences for theft violated the

agreement that Stephanoff’s sentences for his thefts would run concurrent to one another, we

affirm. Nevertheless, we remand for correction of the sentencing order as described herein.

       Affirmed and remanded.

NAJAM, J., and KIRSCH, J., concur.




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