Pursuant to Ind. Appellate Rule 65(D),
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.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEVEN KNECHT                                   GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                      Attorney General of Indiana
Lafayette, Indiana
                                                ANDREW R. FALK
                                                Deputy Attorney General

                                                                              FILED
                                                Indianapolis, Indiana

                                                                          Jan 31 2012, 9:27 am

                              IN THE                                              CLERK
                                                                                of the supreme court,

                    COURT OF APPEALS OF INDIANA                                 court of appeals and
                                                                                       tax court




RONALD D. TIEDE,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 91A04-1105-CR-248
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE WHITE SUPERIOR COURT
                         The Honorable Robert B. Mrzlack, Judge
                             Cause Nos. 91D01-1007-FB-90
                                  91D01-1103-FD-39
                                  91D01-1103-FD-42


                                     January 31, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                             STATEMENT OF THE CASE

      Pursuant to a plea agreement, Ronald Tiede pleaded guilty to two counts of

dealing in methamphetamine, both Class B felonies, Ind. Code § 35-48-4-1.1 (2006);

possession of methamphetamine, a Class D felony, Ind. Code § 35-48-4-6.1 (2006);

resisting law enforcement, a Class D felony, Ind. Code § 35-44-3-3 (2010); and criminal

mischief, a Class D felony, Ind. Code § 35-43-1-2 (2007). He now appeals the trial

court’s denial of his motion to withdraw his guilty pleas to the two counts of dealing in

methamphetamine.     He also appeals the trial court’s modification of the sentence

contained in his plea agreement.

      We affirm.

                                        ISSUES

      Tiede presents one issue for our review, which we restate as two:

      I.     Whether the trial court abused its discretion by denying his motion to
             withdraw his guilty pleas?

      II.    Whether the trial court abused its discretion by modifying the sentence set
             forth in the plea agreement?

                       FACTS AND PROCEDURAL HISTORY

      In July 2010, Tiede was charged with two counts of dealing in methamphetamine

in Cause No. 91D01-1007-FB-90 (“FB-90”). Subsequently, in March 2011, Tiede was

charged with possession of methamphetamine in Cause No. 91D01-1103-FD-39 (“FD-

39”) and with resisting law enforcement, criminal mischief, and criminal recklessness in

Cause No. 91D01-1103-FD-42 (“FD-42”). Tiede entered into a plea agreement that

                                           2
encompassed all three causes and required him to plead guilty to both counts in FB-90,

the single count in FD-39, and resisting law enforcement and criminal mischief in FD-42.

In exchange, Tiede was to receive a sentence of twelve years executed on each count in

FB-90, to be served concurrently; three years, all suspended, in FD-39, with three years

of formal probation consecutive to FB-90; and three years on each count in FD-42,

executed and concurrent to each other but consecutive to FB-90 and FD-39, for an

aggregate sentence of eighteen years with fifteen years executed and three years

suspended. On March 11, 2011, Tiede pleaded guilty pursuant to the plea agreement,

and, when asked by the trial court if he was currently on probation, Tiede responded that

he was not. Tr. p. 14. The trial court took Tiede’s pleas under advisement and set a date

for sentencing.

       Meanwhile, Tiede filed a motion to withdraw his guilty pleas to the two counts in

FB-90. Following a hearing, Tiede’s motion to withdraw his guilty pleas was denied by

the trial court.   Further, once the presentence investigation was completed, it was

discovered that Tiede was currently on probation, making the fully suspended sentence in

FD-39 impermissible. In light of that, at sentencing the trial court accepted the plea

agreement but modified the sentence provided for in the agreement. Tiede now appeals

the trial court’s denial of his motion to withdraw his guilty pleas in FB-90 and the trial

court’s modification of the sentence set forth in the plea agreement.

                             DISCUSSION AND DECISION

                    I. MOTION TO WITHDRAW GUILTY PLEAS

                                             3
      Tiede contends that the trial court abused its discretion by denying his motion to

withdraw his guilty pleas to the two counts of dealing in methamphetamine in FB-90.

Indiana Code section 35-35-1-4(b) (1983) governs motions to withdraw guilty pleas.

After a defendant pleads guilty but before a sentence is imposed, a defendant may move

to withdraw a plea of guilty. Id. The court must allow a defendant to withdraw a guilty

plea if necessary to correct a manifest injustice. Id. However, the court must deny the

motion if withdrawal of the plea would substantially prejudice the State. Id. In all other

cases, the court may grant the defendant’s motion to withdraw a guilty plea for any fair

and just reason. Id. Indiana Code section 35-35-1-4(b) requires a defendant to state facts

in his motion in support of the relief demanded.

      A trial court’s ruling on a motion to withdraw a guilty plea is cloaked in a

presumption of propriety on appeal. Peel v. State, 951 N.E.2d 269, 271 (Ind. Ct. App.

2011). We will reverse the trial court only for an abuse of discretion. Id. To determine

whether a trial court has abused its discretion in denying a motion to withdraw a guilty

plea, we examine the statements made by the defendant at his guilty plea hearing to

decide whether his plea was offered freely and knowingly. Id.

      Tiede’s motion to withdraw his guilty pleas pertained only to the two counts of

dealing in methamphetamine in FB-90. He claimed in his motion that he did not believe

he “factually committed the offense[s]” to which he pleaded and that he did not believe

the pleas were knowingly and voluntarily made. Appellant’s App. p. 34. At the hearing

on his motion, Tiede testified that he is not guilty of the offenses to which he pleaded.

                                            4
Referring to his plea hearing, he stated, “I don’t think I was in my right state of mind,

even though I said I was, I don’t think I was in my right state of mind.” Tr. p. 29. He

explained that he believed the methamphetamine had an effect on his thought process at

the plea hearing even though he had been in jail for four days prior to his hearing and had

not used methamphetamine during that time. On cross-examination, the State asked

Tiede if he had understood the nature of the charges against him, his rights, and the rights

he was giving up by pleading guilty with regard to the offenses in FD-39 and FD-42.

Tiede responded affirmatively. The State then questioned Tiede as to how, on the same

day at the same time, he understood everything the court explained to him and voluntarily

and knowingly pleaded guilty with regard to FD-39 and FD-42 but did “not understand

what was going on in FB-90.” Id. at 33. To this, Tiede responded, “That, I’m not sure

of.” Id. at 34.

       The transcript of the guilty plea hearing reveals that Tiede gave lucid, appropriate

responses to each question posed to him. He testified under oath that he was not under

the influence of alcohol, drugs, or medication, that he understood the rights he was giving

up by pleading guilty, that he understood the charges against him, that he did commit the

offenses, and that his pleas of guilty were his own free and voluntary acts. Thus, Tiede

has not established that the withdrawal of his pleas is necessary to correct a manifest

injustice.   The trial court acted within its discretion by denying Tiede’s motion to

withdraw his guilty pleas.

                     II. MODIFICATION OF PLEA AGREEMENT

                                             5
          Tiede also argues that the trial court abused its discretion by modifying the

sentence set forth in the plea agreement. He claims that, based upon the illegal sentence

contained in the plea agreement, the trial court should have either granted his motion to

withdraw his guilty plea or rejected the plea agreement.

          The terms of the plea agreement were as follows:

CAUSE             OFFENSE(S) PLEADED TO                            SENTENCE

FB-90             2 counts Class B felony                          12 years executed on each count,
                  dealing in methamphetamine                       concurrent

FD-39             1 count Class D felony                           3 years, all suspended, and 3 years
                  possession of methamphetamine                    of formal probation, consecutive
                                                                   to FB-90

FD-42             1 count Class D felony resisting                 3 years executed on each count;
                  law enforcement and 1 count Class                concurrent to each other and
                  D felony criminal mischief                       consecutive to FB-90 and FD-39

Thus, the plea agreement called for an aggregate sentence of eighteen years with fifteen

years executed and three years suspended. At Tiede’s plea hearing, he informed the court

that he was not on probation; however, the presentence investigation revealed that Tiede

was, in fact, on probation. At the sentencing hearing, the court and counsel addressed

this issue because, pursuant to Indiana Code section 35-50-2-2(b)(3) (2008),1 Tiede’s


1
    Indiana Code section 35-50-2-2(b)(3) provides:

          (b) [W]ith respect to the following crimes listed in this subsection, the court may suspend
          only that part of the sentence that is in excess of the minimum sentence . . . :
                  ....
                  (3) The crime committed was a Class D felony and less than three (3) years have
          elapsed between the date the person was discharged from probation, imprisonment, or
          parole, whichever is later, for a prior unrelated felony conviction and the date the person
          committed the Class D felony for which the person is being sentenced.
                                                      6
probation prevented a fully suspended sentence in FD-39 as called for in the plea

agreement. To resolve this issue, the trial court modified the plea agreement. Once

modified, the terms of the plea agreement are as follows:

CAUSE          OFFENSE(S) PLEADED TO                     SENTENCE

FB-90          2 counts Class B felony                   12 years executed on each count,
               dealing in methamphetamine                concurrent

FD-39          1 count Class D felony                    3 years with 1 ½ years executed
               possession of methamphetamine             and 1 ½ years suspended,
                                                         consecutive to FB-90

FD-42          1 count Class D felony resisting          3 years with 1 ½ years executed
               law enforcement and 1 count Class         and 1 ½ years suspended on each
               D felony criminal mischief                count, concurrent to each other
                                                         and consecutive to FB-90
                                                         and FD-39

Just as the original plea agreement, the modified plea agreement resulted in an aggregate

sentence of eighteen years with fifteen years executed and three years suspended.

        First, we note that the illegality of the sentence as a basis to withdraw Tiede’s

guilty pleas was neither raised in his written motion to withdraw nor presented in the

evidence or argument at the hearing on his motion.          Furthermore, we have already

determined that Tiede failed to establish that withdrawal of his pleas was necessary to

correct a manifest injustice and that the trial court acted within its discretion by denying

Tiede’s motion to withdraw his guilty pleas in FB-90.

        We now turn to his allegation that the trial court abused its discretion by accepting

the plea agreement and modifying its sentencing terms. Once a court accepts a plea


                                              7
agreement, the court is bound by the terms of the agreement. Ennis v. State, 806 N.E.2d

804, 809 (Ind. Ct. App. 2004) (citing Bennett v. State, 802 N.E.2d 919, 921-22 (Ind.

2004)). This rule is tempered by the rule that a trial court has the power to vacate an

illegal sentence and impose a proper one, regardless of whether the sentencing error

occurred following a trial or a guilty plea. Id.

       Here, the sentence contemplated in Tiede’s plea agreement would have violated

Indiana Code section 35-50-2-2(b)(3) because the agreement called for the sentence in

FD-39 to be fully suspended. Due to Tiede’s status as a probationer, the sentence in FD-

39 could not be fully suspended, thereby causing the sentence in the plea agreement to be

illegal. Thus, the trial court was within its discretion to vacate the illegal sentence and

impose a proper sentence that complies with statutory requirements. See Fields v. State,

825 N.E.2d 841, 848 (Ind. Ct. App. 2005) (holding that trial court did not err when it

modified Fields’ sentence to comply with statutory requirements even though

modification was inconsistent with plea agreement), trans. denied. Moreover, Tiede

received the same sentence that he had bargained for in the original plea agreement. In

modifying Tiede’s sentence, the trial court noted:

       I see the agreement as a total time of 18 years, and this is written in the plea
       agreement, “Total time 18 years, 15 executed, three suspended.” After that
       agreement was entered into, it was determined that one of the offenses
       could not be completely suspended. So, I believe that it would be
       appropriate for the Court to adjust the sentence in FD-39 and FD-42 to
       comply with the intent of the parties, which was to involve a sentence
       wherein the defendant would receive an 18-year sentence with 15 years
       executed and three years suspended. And the manner in which the executed
       and suspended time would be adjusted to comply with Indiana law and to

                                              8
      essentially comply with the intent of the parties with respect to the plea
      agreement[ ].

Tr. p. 52. Tiede’s sentence, as modified by the trial court, resulted in exactly the same

aggregate sentence of eighteen years with fifteen years executed and three years

suspended as called for in the original plea agreement. We find no error.

                                    CONCLUSION

      Based upon the foregoing, we conclude the trial court did not abuse its discretion

in denying Tiede’s motion to withdraw his guilty pleas and in modifying the sentence

provided for in Tiede’s plea agreement in order that it comply with statutory

requirements.

      Affirmed.

BAKER, J., and MATHIAS, J., concur.




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