                                                               May 26 2015, 9:21 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Valerie K. Boots                                          Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Bobby Dunn,                                               May 26, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1407-CR-470
        v.                                                Appeal from the Marion Superior
                                                          Court; The Honorable Lisa Borges,
                                                          Judge;
State of Indiana,                                         49G04-1311-FC-73907
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015                  Page 1 of 10
[1]   Bobby Dunn and the State entered into a plea agreement, which the court

      accepted. Then on the morning of his sentencing hearing, the State moved to

      withdraw the plea agreement. The court granted the State’s motion.


[2]   We reverse and remand for sentencing.


                                 Facts and Procedural History
[3]   The State charged Dunn with Class D felony theft,1 Class D felony attempted

      theft,2 and two counts of Class C felony forgery.3 Because Dunn had charges

      for which he was to turn himself in to federal authorities, he requested his court

      appearance be expedited. The court rescheduled Dunn’s hearing before his

      surrender date to the federal authorities.


[4]   The State, represented in court by Deputy Prosecutor Jeremy Teipen, and

      Dunn presented a plea agreement to the court whereby Dunn would plead

      guilty to theft and the State would dismiss all other pending charges. The

      agreement was signed for the State by Deputy Prosecutor Kevin E. Kelly, who

      also signed an affidavit at the end of the agreement indicating he had

                 informed the victim and/or the victim’s representative of the fact that
                 the State has entered into discussion with defense counsel concerning
                 this agreement and of the contents of the State’s recommendation, if
                 any; and, that [Deputy Prosecutor Kelly] will notify the victim and




      1
          Ind. Code § 35-43-4-2 (2009).
      2
          Ind. Code § 35-43-4-2 (2009) and § 35-41-5-1 (2013).
      3
          Ind. Code § 35-43-5-2 (2006).


      Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015               Page 2 of 10
              his/her representative of the opportunity to be present when the Court
              considers the recommendation.
      (App. at 26.) On the State’s recommendation, the court accepted the plea and

      found Dunn guilty of theft.


[5]   On the day of sentencing, the State, by Deputy Prosecutor Timothy Baldwin,

      moved to withdraw the plea agreement due to what he characterized as a

      “mistake in fact,” (Tr. at 23), which was that the State had not intended to offer

      a plea agreement. Dunn objected, asserting the only “mistake” was that the

      State agents had not communicated well with one another and had differing

      opinions as to whether a plea should have been offered.


[6]   Deputy Prosecutor Baldwin asserted this “mistake” happened because

      expediting the case at Dunn’s request caused the plea to be entered while

      Deputy Prosecutor Baldwin was not in the office. Deputy Prosecutor Baldwin

      admitted, however, that the plea terms were “offered by [his] supervisor Mr.

      Kelly.” (Id. at 42.) Deputy Prosecutor Baldwin also asserted that, contrary to

      Deputy Prosecutor Kelly’s affidavit, the victim was not notified of the plea or

      the hearings because neither he nor anyone from his office had had any contact

      with the victim regarding the plea.


[7]   The court found, “While it is true that Mr. Kelly is the supervisor and does

      have the authority to dispose of Mr. Baldwin’s cases. [sic] Even without

      perhaps Mr. Baldwin’s consent, there still is the issue of the notification of the

      victim.” (Id. at 46.) Based on the State’s assertion the victim’s constitutional



      Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015       Page 3 of 10
      rights4 had not been protected, the court granted the State’s motion to withdraw

      the plea.


                                     Discussion and Decision
[8]   The trial court erred by granting the State’s motion to withdraw the plea

      agreement after the court had accepted it. We review for an abuse of discretion

      a decision to permit withdrawal of a plea agreement. Badger v. State, 637

      N.E.2d 800, 802 (Ind. 1994). Reversal for abuse of discretion is appropriate

      only when the trial court’s decision is clearly against the logic and effect of the

      facts and circumstances before the court. Joyner v. State, 678 N.E.2d 386, 390

      (Ind. 1997), reh’g denied.

                 Whether to accept or reject a proffered plea agreement is within the
                 discretion of the trial court. Campbell v. State, 17 N.E.3d 1021, 1023
                 (Ind. Ct. App. 2014). Once accepted, however, “If the court accepts a
                 plea agreement, it shall be bound by its terms.” I.C. § 35-35-3-3(e). In
                 numerous cases, this Court and our Indiana Supreme Court have held
                 that the binding nature of a court-accepted plea agreement prevents
                 trial courts from revoking such agreements and vacating previously-
                 entered judgments of conviction - even if the defendant has not yet
                 been sentenced.
      Stone v. State, 27 N.E.3d 341, 343 (Ind. Ct. App. 2015).




      4
          Article 1 § 13(b) of the Indiana Constitution provides:

                 Victims of crime, as defined by law, shall have the right to be treated with fairness,
                 dignity, and respect throughout the criminal justice process; and, as defined by law, to be
                 informed of and present during public hearings and to confer with the prosecution, to the
                 extent that exercising these rights does not infringe upon the constitutional rights of the
                 accused.

      Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015                               Page 4 of 10
[9]    The State and Dunn reached a plea agreement and presented it to the court.

       The trial court accepted it on May 16, 2014, when it found Dunn guilty and

       scheduled the sentencing hearing. While Dunn had no right to be offered a plea

       agreement and the State could have withdrawn it at any point prior to

       acceptance by the court, once it was accepted, the court could not revoke or

       vacate it. See Epperson v. State, 530 N.E.2d 743, 745 (Ind. Ct. App. 1988) (plea

       agreements are similar to contracts and important due process rights of the

       defendant are involved; thus, “plea negotiations must accord a defendant

       requisite fairness and be attended by adequate safeguards which insure the

       defendant what is reasonably due in the circumstances”).


[10]   We have, at times, held trial courts have the discretion to revoke plea

       agreements after judgment was entered. See, e.g., Beech v. State, 702 N.E.2d

       1132 (Ind. Ct. App. 1998) (plea revoked when defendant stated he was innocent

       during the sentencing hearing), and Campbell v. State, 17 N.E.3d 1021 (Ind. Ct.

       App. 2014) (plea agreement required defendant to testify, but he did not).

       Dunn has not asserted he is innocent of the charges, nor has he violated some

       express term of the agreement. Thus, these exceptions do not apply.


[11]   To the extent the trial court permitted withdrawal based on Deputy Prosecutor

       Baldwin’s assertion at the sentencing hearing that the victim had not been

       notified, any error in the trial court’s original acceptance of the plea was invited

       by the State, as Deputy Prosecutor Kelly’s affidavit represented at the guilty

       plea hearing that the State had, in fact, notified the victim. (See Appellant’s

       App. at 26 (affidavit stating deputy prosecutor had informed victim of plea

       Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015     Page 5 of 10
       discussions with Dunn)). And see Brewington v. State, 7 N.E.3d 946, 976 (Ind.

       2014) (party may not request relief from error it invited, encouraged, or caused),

       cert. denied, reh’g denied.


[12]   For these reasons, the court erred in granting the withdrawal of the plea

       agreement, and we must reverse and remand for sentencing.


[13]   Reversed and remanded.


       Pyle, J., concurs. Barnes, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015   Page 6 of 10
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Bobby Dunn,                                               Court of Appeals Cause No.
                                                                 49A02-1407-CR-470
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Barnes, Judge, dissenting

[14]   I respectfully dissent. In 1996, the Indiana Constitution was amended to add

       subsection (b) to Article 1, Section 13. This provision gives crime victims the

       constitutional right “to be informed of and present during public hearings and

       to confer with the prosecution, to the extent that exercising these rights does not

       infringe upon the constitutional rights of the accused.” It clearly and directly

       gives crime victims the constitutional right to be consulted when a case




       Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015                 Page 7 of 10
       concerning them is to be disposed of by plea agreement, as well as the right to

       be notified of and present at any public hearing regarding the plea.


[15]   It is without question that the ultimate decision regarding the course of a

       prosecution and whether to enter into a plea agreement belongs to the

       prosecutor and is an inherent part of his or her power and authority. See Imbler

       v. Pachtman, 424 U.S. 409, 424, 96 S. Ct. 984, 992 (1976) (“A prosecutor is duty

       bound to exercise his best judgment both in deciding which suits to bring and in

       conducting them in court.”); In re Flatt-Moore, 959 N.E.2d 241, 245 (Ind. 2012)

       (holding that, although crime victims may be allowed to have “meaningful

       input into plea agreements,” prosecutors are ethically prohibited from

       surrendering control of the plea bargaining process to victims). Although I

       emphasize that victims do not control the prosecution or plea bargaining

       processes, they do have the right to have their opinion considered by the

       prosecuting attorney.


[16]   Here, the victim was neither consulted by the prosecution nor told of the

       change of plea hearing in violation of the victim’s constitutional rights. The

       case was pled out, but no sentence had been imposed. Although I agree that

       there is much merit to finality in cases and that in most cases a signed plea

       agreement binds both parties, I do not believe that efficiency should or could

       ever trump a constitutional mandate. This is not a case that is ten years old and

       we are being asked to reconstruct events of times long past. After withdrawal of

       the original plea, in this or any similar case the prosecutor may resubmit the

       plea to the trial court for re-acceptance if he believes it is just to do so. It simply

       Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015       Page 8 of 10
       must be done, in my opinion, only after the victim has been consulted and

       given the opportunity to be present at the change of plea hearing, pursuant to

       the Indiana Constitution. I also believe that withdrawing a plea agreement after

       acceptance but before sentencing does not impact a defendant in a way that

       offends his or her constitutional rights.


[17]   I do not believe that the prosecutor possessed the authority to waive the victim’s

       constitutional rights. A prosecutor does not represent the victim of a crime.

       Rather, he or she “is the representative not of an ordinary party to a

       controversy, but of a sovereignty whose obligation to govern impartially is as

       compelling as its obligation to govern at all; and whose interest, therefore, in a

       criminal prosecution is not that it shall win a case, but that justice shall be

       done.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935); see also

       Matter of Miller, 677 N.E.2d 505 (Ind. 1997) (holding prosecutor committed

       misconduct by colluding with crime victim’s private attorney to bring theft

       charge against defendant and offering to dismiss charge if defendant settled civil

       suit). There may be overlap between a victim’s interests and the government’s,

       but they are not identical. For waiver of one’s constitutional rights to be

       effective, “there must be an intentional relinquishment or abandonment of a

       known right or privilege.” Mathews v. State, 26 N.E.3d 130, 135 (Ind. Ct. App.

       2015). Here, because the victim never knew of the proposed plea agreement,

       she could not have intentionally relinquished her constitutional rights to be

       consulted about the plea and to be present at the change of plea hearing. That




       Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015      Page 9 of 10
       the original prosecutor may have misrepresented having consulted with the

       victim, as found by the trial court, does not change that fact.


[18]   In my view, this is a case in which withdrawal of the plea agreement before

       sentencing was warranted. The trial court did not abuse its discretion in

       reaching that conclusion. I vote to affirm.




       Court of Appeals of Indiana | Opinion 49A02-1407-CR-470 | May 26, 2015   Page 10 of 10
