Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                      Jun 20 2013, 5:44 am
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:

PETER D. TODD                                               GREGORY F. ZOELLER
Elkhart, Indiana                                            Attorney General of Indiana

                                                            KATHERINE MODESITT COOPER
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

COREY L. GRIER,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 20A05-1212-CR-658
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Charles Carter Wicks, Judge
                              Cause No. 20D05-1112-FD-353


                                           June 20, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

          Corey L. Grier (“Grier”) pled guilty to Possession of Marijuana, as a Class D felony.1

He raises one issue for our review, whether the trial court breached a plea agreement when it

required him to serve his sentence in the Indiana Department of Correction.

          We reverse and remand.

                                   Facts and Procedural History

          On December 3, 2011, Grier possessed marijuana in an amount that exceeded thirty

grams. On December 5, 2011, the State charged Grier with Possession of Marijuana, as a

Class D felony.

          The omnibus date was February 3, 2012, providing for a plea-bargain deadline of

March 5, 2012. The deadline was later extended to March 19, 2012. On August 28, 2011,

the State filed an allegation that Grier is a habitual offender.

           On October 8, 2012, Grier offered a plea of guilty to the charge against him. His

attorney informed the trial court that the parties had agreed to community corrections

placement, with the State arguing for work release and the defense requesting “ECCC home

detention.”2 (Tr. 61.) Additionally, the trial court was informed that the State had agreed to

move to dismiss the habitual offender allegation. After Grier was advised of his rights and

provided a factual basis for the plea, the trial court conditionally accepted the guilty plea.

          At the sentencing hearing, Grier asked the trial court “to honor the recommendation.”


1
    Ind. Code § 35-48-4-11.
2
  Community corrections is “a program consisting of residential and work release, electronic monitoring, day
treatment, or day reporting[.]” Ind. Code § 35-38-2.6-2.

                                                     2
(Tr. 69.) The deputy prosecutor responded:

       Well Your Honor this is admittedly a case with a long history that I wasn’t a
       party to. I would just ask that you go forward with and adopt the
       recommendation between the state and defendant and also between the prior
       DPA who had more knowledge about this case than I do and the defendant,
       which is the state is offering to dismiss the habitual criminal offender
       enhancement in exchange for the defendant agreeing to 3 years Elkhart County
       Community Correction Work Release.

(Tr. 70.) The trial court accepted the guilty plea but imposed a three-year sentence to be

executed in the Indiana Department of Correction, instead of a three-year sentence in work

release. The trial court found as aggravators Grier’s prior felony convictions and his

violation of probation; his guilty plea and remorse were found to be mitigators. The habitual

offender allegation was dismissed upon motion from the State. Grier appeals.

                                  Discussion and Decision

       On appeal, Grier challenges only the trial court’s decision to place him in the Indiana

Department of Correction for execution of his sentence. He contends that he and the State

reached an agreement and “the intentions of the parties were clear,” yet the trial court “failed

to honor the agreement made by the parties to allow Grier to participate in the ECC Work

Release program.” (Appellant’s Brief at 2-3.)

       A plea agreement is contractual in nature, and binds the defendant, the State, and the

trial court. Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008), trans. denied.

The State and defendant are parties to the agreement and the trial court, once it has accepted

the agreement, is bound by its terms. Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). We

therefore apply principles of contract interpretation to determine “what is reasonably due to


                                               3
the defendant,” Valenzuela, 898 N.E.2d at 482, though contract principles will not be

dispositive in all cases. Lee, 816 N.E.2d at 38.

       Although a plea agreement in a misdemeanor case may be submitted orally to the

court, Indiana Code section 35-35-3-3(a) requires that all felony plea agreements be in

writing:

       No plea agreement may be made by the prosecuting attorney to a court on a
       felony charge except:
       (1)    in writing; and
       (2)    before the defendant enters a plea of guilty.

       The State does not deny that Grier and the prosecution reached an agreement, but

observes that no written plea agreement with a fixed sentencing recommendation was

submitted. Instead, the parties orally advised the trial court as to the terms of the agreement

that they had reached.

       The requirement of a written plea agreement has not been strictly enforced. In

Shepperson v. State, 800 N.E.2d 658, 660 (Ind. Ct. App. 2003), a panel of this Court

addressed a similar situation, where “the terms of the agreement were made known to the

trial court on the record and they were accepted by the trial court.” The Shepperson Court

found the oral plea agreement to be enforceable, relying upon Badger v. State, 637 N.E.2d

800, 804 (Ind. 1994) (stating the courts must enforce agreements between the prosecution

and a defendant, even if the agreements are oral and outside the statutory framework, if the

State has materially benefitted from the terms of the agreement or if the defendant has relied

on the terms of the agreement to his substantial detriment). Accordingly, an accepted oral

plea agreement will have the same effect as a written agreement. See id.

                                              4
          Additionally, “when a plea rests in any significant degree on a promise or agreement

of the prosecutor, so that it can be said to be part of the inducement or consideration, such

promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). See also

Rogers v. State, 715 N.E.2d 428, 429 (Ind. Ct. App. 1999) (holding that the trial court was

bound by the terms of the oral plea agreement once the court accepted the guilty plea and

“implicitly accepted the plea agreement”).

          Here, Grier appeared before the trial court for the purpose of entering a guilty plea and

the trial court was fully advised of the agreement prompting that plea. The State and Grier

had agreed to the imposition of the maximum three-year sentence for a Class D felony,3 with

that sentence to be served in community corrections. Also, the State agreed to seek dismissal

of the habitual offender allegation.

          The State benefitted from Grier’s guilty plea by avoiding a trial, and Grier, in reliance

upon the oral plea agreement, acted to his substantial detriment by conceding his guilt to the

charged offense. The trial court accepted Grier’s guilty plea and granted the State’s motion

for dismissal of the habitual offender allegation, without making it plain to Grier that the trial

court intended to deviate from the agreement with regard to the recommendation of work

release.

          We conclude that the trial court erred in accepting Grier’s guilty plea, implicitly

accepting the plea agreement, while deviating from the terms of the agreement inducing the

plea.


3
    Ind. Code § 35-50-2-7.

                                                  5
      Reversed and remanded with instructions that the trial court amend the sentencing

order to comply with the plea agreement.

NAJAM, J., and BARNES, J., concur.




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