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                                         Jul 30 2014, 9:59 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

BETH ANN FOLZ                                     GREGORY F. ZOELLER
Mt. Vernon, Indiana                               Attorney General of Indiana

                                                  KARL M. SCHARNBERG
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JEREMY D. JONES,                                  )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 65A01-1310-CR-473
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                       APPEAL FROM THE POSEY CIRCUIT COURT
                           The Honorable S. Brent Almon, Judge
                             Cause No. 65D01-1209-FA-434



                                        July 30, 2014


               MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                    Case Summary and Issue

       Jeremy D. Jones pled guilty to child molesting, a Class B felony. He challenges his

sentence, raising one issue on appeal: whether the trial court erred by ordering his sentence to be

served consecutively with a sentence for another crime for which Jones had been charged but not

yet sentenced. We conclude the trial court’s order for Jones to receive a consecutive sentence was

not authorized by statute; however, Jones is estopped from challenging an illegal sentence he

bargained for in a beneficial plea agreement. We affirm.

                                  Facts and Procedural History

       On September 26, 2012, the State charged Jones with child molesting, a Class A felony,

and incest, a Class B felony. The charges were filed in Posey County. On September 11, 2013,

Jones pled guilty to one count of child molesting as a Class B felony, and the charging information

was amended to reflect that agreement. Jones was also charged with similar offenses in Warrick

County, and Jones also pled guilty in that case.

       Jones and the State filed a joint sentencing recommendation in Posey County pursuant to

the plea agreement:

       1. [Jones] agrees to plead guilty to Amended Count 1: Child Molesting, a
          Class B Felony.
       2. At the time of acceptance of the guilty plea and at the time of [Jones’s]
          sentence, the State and [Jones] recommend that [Jones] be sentenced as
          follows:
              a. Count 1: The Court [is] to decide the sentence which does not
                 exceed twelve (12) years and with both sides reserving the right to
                 argue for an appropriate sentence. The Court will also decide
                 whether the sentence in 65D01-1209-FA-434 would be served
                 concurrently with or consecutively to any sentence received in the
                 Warrick County under cause 87C01-1209-FB-383;
              b. Count 2: will be dismissed upon [Jones’s] plea and sentencing in
                 Count 1.


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Appellant’s Appendix at 36.

       A sentencing hearing was held, and the trial court sentenced Jones to ten years executed

with the Indiana Department of Correction and ordered that sentence to be served consecutive to

any sentence resulting from the case in Warrick County under cause 87C01-1209-FB-383. This

appeal followed.

                                    Discussion and Decision

       Jones argues on appeal that the trial court erred when it ordered Jones’s sentence to be

served consecutive to any forthcoming sentence imposed as a result of his pending criminal case

in Warrick County. Indiana Code section 35-50-1-2 governs the trial court’s authority to order

consecutive sentencing and states in relevant part that “the court shall determine whether terms of

imprisonment shall be served concurrently or consecutively.” Ind. Code § 35-50-1-2(c).

       Jones relies on our decision in Frazier v. State, 512 N.E.2d 215 (Ind. Ct. App. 1987), trans.

denied. In Frazier, the defendant was convicted of burglary following a jury trial. The trial court

ordered his sentence to be served consecutively with any sentence handed down in another case in

which Frazier had pled guilty but had not yet been sentenced. Examining the statute authorizing

consecutive sentencing, this court said “the language employed by the legislature necessarily

presupposes that when the critical (second) sentence is imposed so as to invoke the statute, the

other sentence(s) must already have been imposed or, at least, must be imposed

contemporaneously therewith.” Id. at 216. Thus, the court held the trial court did not have

authority to impose a consecutive sentence where no other prior or contemporaneous sentence

existed. Id. at 217.




                                                3
         The State concedes that Frazier is on point. Without citation to authority, the State suggests

that a “better rule” would be to overlook the trial court’s error and view it as a recommendation to

any court imposing a subsequent sentence.1 Brief of Appellee at 4.

         As a general rule, “[c]ourts are limited to imposing sentences that are authorized by statute,

rather than only being limited to sentences that are not prohibited by statute.” Wilson v. State, 5

N.E.3d 759, 762 (Ind. 2014) (quoting Wilson v. State, 988 N.E.2d 1221, 1224 (Ind. Ct. App. 2013)

(Robb, C.J., dissenting)) (emphasis in original).                 We agree with Jones that Frazier clearly

establishes that the trial court did not have statutory authority to order a consecutive sentence here.

Ordinarily, that would be the end of the matter. However, the particular circumstances of this

case—specifically, the existence and nature of Jones’s plea agreement—bring this case outside the

limits of Frazier and lead us to a different result.

         Our supreme court has previously held “[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.” Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004). Applying that principle in Stites v.

State, our supreme court held a defendant’s sentence was not invalid on the ground that the trial

court lacked statutory authority to impose a consecutive sentence, where the defendant entered

into a plea agreement that provided for a consecutive sentence. 829 N.E.2d 527, 528 (Ind. 2005).




         1
            The State proposes that we ignore the trial court’s error because, in the State’s view, curative action should
not be taken until a defendant suffers a more concrete harm. Under the State’s suggested rule, a defendant could not
challenge a trial court’s unauthorized sentence on direct appeal, but instead, a defendant must wait and see if he suffers
some “actual harm” before he may seek post-conviction relief. The State’s proposal asks us to presume that other
courts and the Department of Correction would understand that the trial court’s unauthorized, mandatory sentencing
order is actually a recommendation that the justice system is free to ignore—or must ignore, in many instances. Not
only would this be inefficient, but it would undoubtedly cause unnecessary confusion amongst the courts and the
Department of Correction if unlawful sentencing orders were allowed to go uncorrected. Moreover, a defendant has
the benefit of counsel when challenging an illegal sentence on direct appeal, but under the State’s hypothetical, a
defendant would not have the right to assistance of counsel in post-conviction relief. See Baum v. State, 533 N.E.2d
1200, 1201 (Ind. 1989). A trial court’s sentencing order is either lawful or not. We believe it is more appropriate to
correct any error sooner rather than later, and there is no reason to abandon the rule or procedure from Frazier.

                                                            4
This case is analogous, and we believe Stites requires the same result here. Jones entered into a

plea agreement and specifically agreed that “[t]he Court will also decide whether the sentence in

65D01-1209-FA-434 would be served concurrently with or consecutively to any sentence received

in the Warrick County under cause 87C01-1209-FB-383.” Appellant’s App. at 36. Jones received

a substantial benefit from his plea. Jones’s charges were reduced from an A felony down to a B

felony, and he received a sentence cap as part of his plea. Ordinarily, a Class A felony carries a

maximum sentence of 50 years, and a Class B felony carries a maximum sentence of twenty years.

Ind. Code § 35-50-2-4 and -5 (2013). However, Jones negotiated a plea that capped his potential

sentence exposure to twelve years. Just as the court held in Stites, Jones may not strike a favorable

bargain, which included giving the trial court discretion to enter a consecutive sentence, and then

be heard to complain of a sentence ordered pursuant to the terms of his plea agreement.

          We emphasize that our decision here does not disturb the general rule set down in Frazier.

The holding in this case is limited to circumstances where a defendant bargains for a consecutive

sentence and benefits from his plea agreement. It remains true that a trial court could not order

consecutive sentences without statutory authority following a trial, Frazier, 512 N.E.2d 217, nor

could a trial court order an unlawful sentence where a plea agreement is silent as to the aspect of

the sentence that is not authorized. See Crider v. State, 984 N.E.2d 618, 619 (Ind. 2013) (holding

“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”).

                                             Conclusion

          Concluding Jones’s consecutive sentence was not authorized by statute but that he is

estopped from challenging an illegal sentence he bargained for and received a benefit from, we

affirm.



                                                  5
      Affirmed.

RILEY, J., and BRADFORD, J., concur.




                                       6
