ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven Knecht                                            Gregory F. Zoeller
Vonderheide & Knecht, P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana

_____________________________________________________________________________________


                                           In the
                             Indiana Supreme Court                      Mar 21 2013, 8:53 am
                              _________________________________

                                    No. 91S05-1206-CR-306

TODD J. CRIDER,
                                                         Appellant (Defendant below),

                                              v.

STATE OF INDIANA,
                                                       Appellee (Plaintiff below).
                             _________________________________

                 Appeal from the White Superior Court, No. 91D01-1012-FD-150
                            The Honorable Robert B. Mrzlack, Judge
                            _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 91A05-1108-CR-389
                           _________________________________


                                        March 21, 2013


Rucker, Justice.
        In this case we conclude that the waiver of the right to appeal contained in a plea
agreement is unenforceable where the sentence imposed is contrary to law and the Defendant did
not bargain for the sentence.


                                 Facts and Procedural History


        On December 1, 2010 Todd J. Crider was charged in White County with theft, a class D
felony, and he was also alleged to be a habitual offender. On May 31, 2011 Crider and the State
submitted to the trial court a written plea agreement which provided that Crider would plead
guilty as charged and admit his status as a habitual offender. Under terms of the agreement
Crider was to be sentenced to a term of three years in the Department of Correction enhanced by
three years for the habitual offender allegation. At the time of the agreement Crider had been
convicted in Tippecanoe County of two counts of theft; one count of attempted fraud; adjudged
to be a habitual offender; and ordered to serve a partially suspended 545-day sentence.


        As originally drafted, a line in the plea agreement provided “The sentence in Count II
[the habitual offender count] shall be served concurrent with an habitual offender enhancement
received in Tippecanoe County.” App. at 9. However, this line was scratched out and was
initialed by both Crider and his attorney. Also as originally drafted the plea agreement provided
for a sentence of one and one-half years for theft enhanced by one and one-half years for the
habitual offender adjudication. This provision too was scratched out, replaced with three years,
and initialed by Crider, his attorney, and the deputy prosecutor. The agreement further provided
in pertinent part:

                The Defendant waives his right to appeal any sentence imposed by
                the trial court that is within the range set forth in the plea
                agreement. Further, the Defendant knowingly, intelligently and
                voluntarily waives his right to challenge the sentence on the basis
                that it is erroneous.

App. at 9. During its colloquy with Crider on his decision to plead guilty the trial court declared
“if you’ve been convicted recently in Tippecanoe County, do you understand that the sentences
imposed in this case, part of them or all of them, may have to be served consecutively to one

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another, one after the other?” Tr. at 16. The trial court continued, “there may be some case law
out there that would require if you are convicted of pending habitual offender charges, that that
portion of your sentences, if they are similar, they may be served concurrently, but that’s subject
to Court interpretation, and we’ll learn that at the sentencing hearing.” Tr. at 16-17. Ultimately
the trial court determined that Crider entered the plea voluntarily and that there was a factual
basis for the same.     The trial court then took the plea under advisement and ordered a
presentence investigation report.


       Based on the trial court’s representation at the plea hearing, on the day of sentencing,
July 18, 2011, Crider filed a Sentencing Memorandum that contended the habitual offender
enhancement he was about to receive in this case could not be ordered to be served consecutively
to the habitual offender enhancement Crider received in Tippecanoe County. Crider reiterated
this point orally to the trial court at the sentencing hearing. See App. at 26. Accepting the
parties’ plea agreement the trial court sentenced Crider to three years for the theft conviction
enhanced by three years for the habitual offender adjudication for a total executed term of six
years. Rejecting Crider’s argument concerning the Tippecanoe case the trial court declared:

               The Court has considered the defendant’s Sentencing
               Memorandum. I interpret Indiana Code 35-50-2-8 with the
               circumstances that we have, to require that the habitual offender
               count enhance the sentence the defendant is convicted of here in
               White County. According to this ordering, that White County
               sentence is to be served consecutively to the sentence imposed out
               of Tippecanoe County . . . .

Tr. at 28. Crider appealed raising a single issue: “Whether the trial court’s order that Todd
Crider’s habitual offender enhancement be served consecutively to the habitual offender
enhancement in a case from Tippecanoe County was illegal.” Br. of Appellant at 1. In a divided
opinion the Court of Appeals dismissed Crider’s appeal on grounds that under the terms of the
plea agreement Crider agreed that he “knowingly, intelligently and voluntarily waive[d] his right
to challenge the sentence on the basis that it is erroneous.” Crider v. State, 966 N.E.2d 675, 676
(Ind. Ct. App. 2012) (quoting App. at 9). Having previously granted transfer we now reverse the
judgment of the trial court.


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                                            Discussion


       Indiana Code section 35-50-2-8, the habitual offender statute, provides in relevant part
that a person is a habitual offender if the jury or the court finds that the person “has accumulated
two (2) prior unrelated felony convictions.” And Indiana Code section 35-50-1-2 governs the
authority of courts to order consecutive sentences. In Starks v. State, 523 N.E.2d 735 (Ind. 1988)
this Court addressed for the first time the propriety of a trial court ordering sentences for two
habitual offender counts to run consecutively. Initially we noted that although the habitual
offender statute provides that a person may be sentenced as a habitual offender for “any felony,”
the statute did not answer the question of “whether the legislature has sanctioned the pyramiding
of habitual offender sentences.” Id. at 736. Analyzing the habitual offender statute—section 35-
50-2-8—and the consecutive sentencing statute—section 35-50-1-2—we concluded that the
imposition of consecutive habitual offender sentences was improper. In doing so the Court noted
that although section 35-50-1-2 granted sentencing courts the discretion to order consecutive
sentences, this discretion is limited by the rules of rationality and constitutional restrictions.
Starks, 523 N.E.2d at 736. We observed that on the one hand a sentence enhanced by the
habitual offender statute is based upon the existence of two prior unrelated felony convictions.
On the other hand consecutive sentences are based upon the principle that each separate and
distinct criminal act should receive a separately experienced punishment. Id. at 737. Further the
Court observed that the statute was “silent on the question of whether courts have the authority to
require habitual offender sentences to run consecutively, when engaged in the process of meting
out several sentences.” Id. at 737. With the foregoing considerations in mind the Court held
“[i]n the absence of express statutory authorization for such a tacking of habitual offender
sentences, there is none.” Id.


       Since Starks, the Court of Appeals has also addressed the issue of whether consecutive
habitual offender sentences are proper. In Smith v. State, 774 N.E.2d 1021 (Ind. Ct. App 2002),
trans. denied, the court found that imposing consecutive habitual offender enhancements was
improper, even where the enhancements arose from separate and unrelated trial or sentencing
hearings. Id. at 1024; see also Ingram v. State, 761 N.E.2d 883, 885-86 (Ind. Ct. App. 2002)
(declaring trial court exceeded its legislative authorization in imposing consecutive habitual

                                                 4
offender sentences even though the sentences arose from a single sentencing hearing rather than
a single criminal trial).


        As this Court has more recently declared: “[u]nder Indiana law, a trial court cannot order
consecutive habitual offender sentences.” Breaston v. State, 907 N.E.2d 992, 994 (Ind. 2009).
And “[t]his holds true whether the concurrent enhanced sentence is imposed in a single
proceeding or in separate proceedings.” Id. at 995.


        In this case the State contends that as a “general rule” a trial court may not impose
consecutive habitual offender enhancements. Br. of Appellee at 4. But the State argues the
general rule does not apply in this case citing authority standing for the proposition that 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.” Br. of Appellee at 4 (quoting
Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004)); see also Stites v. State, 829 N.E.2d 527, 529 (Ind.
2005) (rejecting argument that plea agreement involving illegal consecutive sentence is invalid);
Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987) (rejecting argument that felony conviction
underlying habitual offender adjudication was illegal where conviction was based on plea
agreement). But these cases are distinguishable.


        Here Crider’s plea agreement did not “call[] for an illegal sentence.” Crider pleaded
guilty under terms of an agreement that provided for a three-year sentence in the Department of
Correction for the offense of theft enhanced by three years for his adjudication as a habitual
offender. The agreement was silent on whether the sentence imposed was to run concurrently or
consecutively with the sentence imposed in another county. There was nothing unusual or illegal
about this arrangement. The problem however is that as a result of an apparent misapprehension
of the law, the trial court was under the impression that it was “require[d]” to order the habitual
offender-enhanced sentence imposed in this case to run consecutively to the habitual offender-
enhanced sentence imposed by the court in Tippecanoe County. Tr. at 28. This aspect of the
sentence was not a part of the parties’ agreement. In consequence the trial court erred in
imposing such sentence.      We reiterate “[u]nder Indiana law, a trial court cannot order
consecutive habitual offender sentences.” Breaston, 907 N.E.2d at 994.

                                                5
          Nonetheless, citing this Court’s opinion in Creech v. State, the State insists that by the
very terms of Crider’s plea agreement Crider has waived review of his sentence. In Creech, the
defendant and the State entered into a plea agreement in which the defendant pleaded guilty to
one count of class C felony child molesting and sentencing was left to the trial court’s discretion
with the limitation that the executed portion of any sentence was to be capped at six years. Also,
the plea agreement contained the following waiver: “I hereby waive my right to appeal my
sentence so long as the Judge sentences me within the terms of my plea agreement.” 887 N.E.2d
73, 74 (Ind. 2008). At the conclusion of the sentencing hearing and in its sentencing order, the
trial court advised Creech that he had a right to appeal his sentence. Creech appealed, asserting
that his plea agreement was invalid because it was not made knowingly, voluntarily, and
intelligently. This Court first recognized that whether such waivers should be enforceable at all
was a question of first impression; but determined that “a defendant may waive the right to
appellate review of his sentence as part of a written plea agreement.” Id. at 75. Ultimately the
Court rejected Creech’s claim that the written waiver should not be enforced because the trial
court orally advised Creech that he had a right to appeal. Id. at 77. Citing the Seventh Circuit,
the Court recognized “[m]ost waivers are effective when set out in writing and signed.” Id. at 76
(quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995), superseded by statute on
other grounds). And Creech did “not claim that the language of the plea agreement was unclear
or that he misunderstood the terms of the agreement at the time he signed it.” Id. Instead, he
argued that “his otherwise knowing and voluntary plea lost its knowing and voluntary status
because the judge told him at the end of the sentencing hearing that he could appeal.” Id.
(footnote omitted). We concluded, “[b]y the time the trial court erroneously advised Creech of
the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain.
Being told at the close of the hearing that he could appeal presumably had no effect on that
transaction.” Id. at 77. As the Court of Appeals subsequently noted, “it is clear that under
Creech, a trial court's incorrect advisement at the conclusion of a defendant’s sentencing hearing
has no effect on an otherwise knowing, voluntary, and intelligent waiver of the right to appeal his
sentence.” Ricci v. State, 894 N.E.2d 1089, 1093 (Ind. Ct. App. 2008), trans. denied (emphasis
added).




                                                  6
        Ricci also involved a written plea agreement which provided the defendant waived his
right to appeal. In contrast to Creech, however, the trial court in Ricci had unambiguously stated
at the plea hearing that according to its reading of the plea agreement, Ricci had not surrendered
the right to appeal his sentence, and the court’s statement was not contradicted by counsel for
either party. Id. In those circumstances, the Court of Appeals concluded that all parties “entered
into the plea agreement with the understanding that Ricci retained the right to appeal his
sentence” and held the waiver “a nullity.” Id. at 1094.


        The Court of Appeals was faced with a similar situation in Bonilla v. State, 907 N.E.2d
586 (Ind. Ct. App. 2009), trans. denied. Bonilla entered into a written agreement waiving his
right to appeal. And at the plea hearing the trial court noted Bonilla “may” have waived his right
to appeal his sentence. Bonilla, 907 N.E.2d at 589. However, the court proceeded to advise
Bonilla of his right to appeal and asked if he understood that right. Id. Given the contradictory
information Bonilla received at the plea hearing and the fact that Bonilla was not a native
English speaker the Court of Appeals concluded that Bonilla did not waive his right to appeal his
sentence. Id. at 590.


        Taken together, our jurisprudence stands for the proposition that in Indiana, a defendant
can waive his right to appeal an illegal sentence.1 Our cases have recognized legitimate reasons
for this proposition. “[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.” Lee
816 N.E.2d at 40 (quoting Davis v. State, 771 N.E.2d 647, 649 n.4 (Ind. 2002)). Cf. United
States v. Woltmann, 610 F.3d 37, 40 (2d Cir. 2010) (“[T]he benefits of such waivers inure to

1
  This is by no means the rule in all jurisdictions. See, e.g., United States v. Andis, 333 F.3d 886, 891-92
(8th Cir. 2003) (“[A] defendant has the right to appeal an illegal sentence, even though there exists an
otherwise valid waiver.”); United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001) (recognizing that
“[a]ppellate waivers are subject to certain exceptions” and “a defendant who waives his right to appeal
does not subject himself to being sentenced entirely at the whim of the district court”) (citations omitted);
People v. Bottenfield, 159 P.3d 643, 645 (Colo. Ct. App. 2006) (concluding “a defendant cannot waive
the right to challenge an illegal sentence because there cannot be a valid agreement to an illegal
sentence”).

                                                     7
both government and the defendant alike, with the government receiving the benefit of reduced
litigation, and the defendant receiving some certainty with respect to his liability and
punishment.” (quoting United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000)). But in
our cases enforcing illegal sentences, those sentences were explicitly provided for in the plea
agreement, and the defendant benefitted from the plea. See, e.g., Lee, 816 N.E.2d at 39-40
(upholding improper consecutive sentences, explicitly provided for in the plea agreement, where
the State dismissed a habitual offender allegation in exchange); Stites, 829 N.E.2d at 528
(affirming imposition of illegal consecutive sentences where defendant “specifically agreed to
the consecutive sentences in her plea agreement” and “[a]s part of the plea agreement the State
agreed that it would not seek the death penalty”); Collins, 509 N.E.2d at 833 (finding no error
where the defendant benefitted by receiving an illegally suspended sentence). Cf. Sinn v. State,
609 N.E.2d 434, 435-36 (Ind. Ct. App. 1993), trans. denied (in the apparent absence of an appeal
waiver, vacating consecutive sentences not authorized by statute even though the plea agreement
explicitly called for the sentences to run consecutively). In other words, our precedent supports
the view that where a plea agreement provides for the illegality later challenged, a valid waiver
contained therein will be upheld.


       Several federal jurisdictions permit the appeal of an illegal sentence pursuant to a rule
refusing enforcement of an “otherwise valid waiver [of appeal] if to do so would result in a
miscarriage of justice.” Andis, 333 F.3d at 891. See also United States v. Hahn, 359 F.3d 1315,
1327 (10th Cir. 2004), per curiam; United States v. De-La-Cruz Castro, 299 F.3d 5, 10 (1st Cir.
2002). Considerations in assessing a “miscarriage of justice” vary by jurisdiction but may
include “the clarity of the alleged error, its character and gravity, its impact on the defendant, any
possible prejudice to the government, and the extent to which the defendant acquiesced in the
result.” United States v. Pratt, 533 F.3d 34, 37 (1st Cir. 2008) (quoting United States v.
Cardona-Díaz, 524 F.3d 20, 23 (1st Cir. 2008).           See also Hahn, 359 F.3d at 1325-1327
(employing the Andis court’s three-pronged approach analyzing the scope of the waiver, the
knowing and voluntary character of the waiver, and whether enforcement of the waiver would
result in a miscarriage of justice, where miscarriage of justice may be found only in four specific
situations and then subject to additional constraints). Such an approach would undoubtedly have
value in certain situations. See, e.g., Lee, 816 N.E.2d at 38 (agreeing that “we would not enforce

                                                  8
a sentence of death for jay walking simply because the sentence was the product of a plea
agreement.” (quoting Sinn, 609 N.E.2d at 436). While we agree that “allowing a defendant to
waive appeal of any and every sentence imposed in violation of law would ‘invite[ ] disrespect
for the integrity of the courts,’” United States v. Ready, 82 F.3d 551, 556 (2d Cir. 1996) (quoting
Wheat v. United States, 486 U.S. 153, 162 (1988)), the facts of the instant case do not require us
to adopt the “miscarriage of justice” analysis.


       Here—in contrast to Lee, Stites, and Collins—the plea agreement did not provide for an
illegal sentence. We presume a trial judge “is aware of and knows the law.” Dumas v. State,
803 N.E.2d 1113, 1121 (Ind. 2004). See also Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993)
(recognizing the “strong presumption” that the trial court “has acted correctly and has properly
followed the applicable law”). And when entering a contract with the prosecutor, a defendant is
entitled to presume that that trial court will order performance of the contract in compliance with
the law. Cf. Ready, 82 F.3d at 559 (“[W]e construe the agreement against a general background
understanding of legality.    That is, we presume that both parties to the plea agreements
contemplated that all promises made were legal, and that the non-contracting ‘party’ who
implements the agreement (the district judge) will act legally in executing the agreement.”
(citing Walsh v. Schlecht, 429 U.S. 401, 408 (1977))). Indeed, “[p]lea agreements and appeal
waivers rest on the basic assumption that a sentencing court will correctly understand the
statutory scheme and sentencing guidelines that are to be utilized in sentencing a defendant.”
Hahn, 359 F.3d at 1330 (Lucero, J., concurring in part and dissenting in part). In other words,
the “default rule” for plea agreements is that sentences will be determined and imposed legally,
where there is no agreement otherwise.


       Absent due process concerns to the contrary, when a 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. See Lee, 816 N.E.2d at 40. In this case Crider made no such agreement. And in the
absence of any such agreement, he was entitled to presume that the trial court would sentence
him in accordance with the law. Crider’s waiver of appeal in his plea agreement therefore
applied only to sentences imposed in accordance with the law. Because the law does not permit

                                                  9
the imposition of consecutive habitual offender sentences and Crider did not agree to consecutive
habitual offender sentences, his waiver of appeal is thus invalid and his habitual offender
sentences must be ordered to run concurrently.


                                          Conclusion


       We reverse in part the trial court’s sentencing order and remand for resentencing in
accordance with this opinion.


Dickson, C.J., and David, Massa and Rush, JJ., concur.




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