MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Apr 05 2018, 9:03 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Rader,                                           April 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1709-CR-2092
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1505-F5-735 & 48C03-
                                                         1603-F5-428



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018               Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Gregory Rader, appeals the trial court’s imposition of a

      sentence after being found ineligible to participate in Drug Court.


[2]   We affirm.


                                                    ISSUE
[3]   Rader presents us with one issue on appeal, which we restate as: Whether the

      trial court violated the plea agreement by imposing a sentence after Rader

      became ineligible to participate in Drug Court.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 18, 2015, the State filed an Information, charging Rader with a Level 5

      felony operating a vehicle after forfeited for life; a Class A misdemeanor

      operating a vehicle with a BAC over .15; and a Class C misdemeanor operating

      a vehicle while intoxicated under Cause Number 48C03-1505-F5-735 (F5-735).

      On December 21, 2015, Rader pled guilty as charged, but sentencing was

      stayed pending a referral to the Madison County Drug Court. At the time of

      the referral, Rader was serving a sentence on home detention out of Hamilton

      County. Under the terms of the plea agreement entered into in F5-735, he was

      to report to the Madison County Drug Court for evaluation after he completed

      serving the Hamilton County sentence. Pursuant to the terms of the plea:


              Sentencing shall be stayed and the Defendant referred to the
              Madison County Drug Court Program. If the Defendant
              successfully completes (graduates) Drug Court, the charges

      Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018   Page 2 of 7
              herein shall be dismissed. If the Defendant fails to graduate from
              Drug Court for any reason, sentencing shall be open to the [c]ourt.
              The Defendant shall start Drug Court after serving his current
              home detention in Hamilton County.


      (Appellant’s App. Vol. II, pp. 38-39) (emphasis added).


[5]   On March 2, 2016, the State filed another Information, charging Rader with a

      Level 5 felony operating a vehicle after forfeited for life under Cause Number

      48C03-1603-F5-428 (F5-428). On August 24, 2016, Rader entered into the

      same plea agreement with the State to resolve the F5-428 case: he pled guilty as

      charged in exchange for a stayed sentenced and a referral to the Madison

      County Drug Court. Again, the agreement specified that “If the Defendant

      successfully completes (graduates) Drug Court, the charges herein shall be

      dismissed. If the Defendant fails to graduate from Drug Court for any reason,

      sentencing shall be open to the [c]ourt.” (Appellant’s App. Vol. II, pp. 83-84)

      (emphasis added). Rader was scheduled to complete his Hamilton County

      sentence in December 2016, at which point he was to report to the Drug Court.


[6]   On December 22, 2016, the Drug Court notified the trial court that Rader was

      ineligible for participation in its program because he did not reside in the

      county. Rader refused to move to Madison County, informing the Drug Court

      that it would present an undue hardship on him. On January 30, 2017, the trial

      court conducted a sentencing hearing at which Rader failed to appear and a

      warrant was issued for his arrest. Rader remained at large for the next eight

      months.


      Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018   Page 3 of 7
[7]    During the sentencing hearing on August 14, 2017, Rader requested the trial

       court for another opportunity to participate in the Drug Court program. The

       trial court noted that it was “just totally unbelievable” that Rader had refused to

       comply with the eligibility requirements of the program, and that he “has been

       out running around for eight (8) months after thumbing his nose at the [c]ourt

       and his opportunity to do Drug Court.” (Transcript pp. 62-63). The trial court

       imposed an aggregate sentencing of six years in F5-735, and a six-year sentence

       in F5-428, with the sentences in the two causes to run consecutively.


[8]    Rader now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[9]    Rader contends that the trial court violated the plea agreement by imposing a

       sentence where the language of the plea agreement was ambiguous. Initially we

       note that Rader never asserted the ambiguity of the plea agreement’s terms as a

       basis for his request to give him a second opportunity to comply with the

       requirements of the Drug Court. “[A] trial court cannot be found to have erred

       as to an issue or argument that it never had an opportunity to consider.”

       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Therefore, as a general

       rule, a party may not present an argument or issue on appeal unless the party

       raised that argument or issue for the trial court. Id. In such circumstances the

       argument is waived. Id.


[10]   Waiver notwithstanding, we will address Rader’s argument on its merits. Our

       courts have long held that plea agreements are in the nature of contracts entered

       Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018   Page 4 of 7
       into between the defendant and the State. Lee v. State, 816 N.E.2d 35, 38 (Ind.

       2004). That is:


               [a] plea agreement is contractual in nature, binding the
               defendant, the state, and the trial court. The prosecutor and the
               defendant are the contracting parties, and the trial court’s role
               with respect to their agreement is described by statute: if the
               court accepts the plea agreement, it shall be bound by its terms.


       Id. As such, we will look to principles of contract law when construing plea

       agreements to determine what is reasonably due to the defendant. Id. The

       primary goal of contract interpretation is to give effect to the parties’ intent.

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

       When the terms of a contract are clear and unambiguous, they are conclusive of

       that intent, and the court will not construe the contract or look to extrinsic

       evidence. Id. at 483. Rather, we will apply the contractual provisions. Id.

       Terms of a contract are not ambiguous merely because a controversy exists

       between the parties concerning the proper interpretation of terms. Id. Instead

       ambiguity will be found in a contract only if reasonable people would find the

       contract subject to more than one construction. Id. We construe any contract

       ambiguity against the party who drafted it, which, in the case of plea

       agreements, is the State. Id.


[11]   Rader’s plea agreement required him to enter the Madison County Drug Court

       program and, upon successful completion of the program, all charges in the

       plea agreement would be dismissed. However, if Rader failed “to graduate

       from Drug Court for any reason, sentencing shall be open to the court.”
       Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018   Page 5 of 7
       (Appellant’s App. Vol. II, pp. 38-39, 83-84) (emphasis added). Rader now

       posits that “[t]he plea agreement lacked precision and is silent as to what is to

       happen if Rader is not accepted into the program or deemed ineligible.”

       (Appellant’s Br. p. 13). Because of this perceived ambiguity and lack of

       specifics, Rader requests the parties to be returned “to their former positions

       and have an opportunity to negotiate a new plea agreement.” (Appellant’s Br.

       p. 14). We disagree.


[12]   The plea agreement clearly states that if Rader fails to graduate from the Drug

       Court program for any reason, sentencing shall be open to the trial court. As

       such, acceptance into the program is a precondition to graduate. At this point,

       Rader’s failure to graduate is definite as he refused to relocate and thus he is no

       longer eligible to participate in the program. Under the terms of the plea

       agreement, the reason for Rader’s failure to graduate is immaterial as “any

       reason” is sufficient to trigger the trial court’s sentencing discretion.

       Furthermore, due to his refusal to relocate, Rader was the only one responsible

       for his failure to graduate from the program. Rader never presented any

       evidence that he misunderstood that his refusal to relocate would make him

       ineligible for participation in the Drug Court, had requested additional time to

       relocate, or presented circumstances outside of his control that prevented him

       from accepting the Drug Court’s eligibility requirements. Moreover, rather

       than presenting himself to the trial court upon his refusal to comport to the

       requirements of the Drug Court, Rader absconded and failed to appear for his

       sentencing hearing, spending the next eight months at large while the record


       Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018   Page 6 of 7
       reflects that he was aware that a warrant had been issued for his arrest. Rader’s

       argument that “the [t]rial [c]ourt knew at the time of [p]lea [a]greement [] that

       Rader was living in another county” is unavailing as Rader himself negotiated

       the terms of the plea and the trial court merely accepted the bargain he struck

       with the State. (Appellant’s Br. p. 14). Equally without merit is Rader’s claim

       that he was not afforded due process “when facing termination of participation

       in a drug court program.” Gosha v. State, 931 N.E.2d 432, 434-35 (Ind. Ct. App.

       2010). These rights apply when there has been a “violation of at least one of the

       conditions of the participation agreement.” See Ind. Code § 33-23-16-14.5.

       However, here, Rader, by his own refusal, never entered into a participation

       agreement with the Drug Court, let alone violated one of the conditions of the

       participation agreement. Accordingly, we cannot conclude that the trial court

       violated the terms of the plea agreement by sentencing Rader.


                                             CONCLUSION
[13]   Based on the foregoing, we hold that trial court did not violate the terms of the

       plea agreement by imposing a sentence after Rader became ineligible for Drug

       Court.


[14]   Affirmed.


[15]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018   Page 7 of 7
