MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          Mar 27 2020, 6:59 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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Roy Bessler                                              Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Roy Bessler,                                             March 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PL-1624
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Sally A.
Appellee-Plaintiff.                                      McLaughlin, Judge
                                                         Trial Court Cause No.
                                                         15D02-1104-PL-18



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1624 | March 27, 2020              Page 1 of 7
[1]   Roy Bessler appeals the denial of his motion for order to return property. We

      affirm.


                                      Facts and Procedural History

[2]   In February 2011, the State charged Bessler with possession of marijuana with

      the intent to deliver as a class C felony under cause number 15C01-1102-FC-10

      (“Cause No. 10”) in the Dearborn Circuit Court. In May 2011, the State

      charged him with two counts of dealing in cocaine as class B felonies and two

      counts of dealing in cocaine as class A felonies under cause number 15D01-

      1105-FA-12 (“Cause No. 12”) in the Dearborn Superior Court.


[3]   On April 11, 2011, the State filed a Complaint for Forfeiture under cause

      number 15D02-1104-PL-18 (“Cause No. 18”), the cause from which this appeal

      arises, in the Dearborn Superior Court. The complaint alleged that a 2005

      Dodge Ram 3500 was found in Bessler’s possession along with approximately

      twenty pounds of processed and packaged marijuana and that the vehicle had

      been used to transport illegal drugs and as transportation to and from various

      places for meetings related to Bessler’s illegal drug related activities. The

      complaint asserted the vehicle was seized pursuant to a lawful search warrant

      issued by the Dearborn Circuit Court.


[4]   On March 26, 2012, the court entered an agreed judgment under Cause No. 18,

      which was signed by Bessler, his counsel, and the prosecuting attorney, and

      provided that the seized vehicle “is hereby forfeited by [Bessler] to the Special

      Crimes Unit of Dearborn County to be used by the Special Crimes Unit for a


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1624 | March 27, 2020   Page 2 of 7
period of time not to exceed three (3) years, after which period of time, the said

[vehicle], shall be delivered to the Sheriff of Dearborn County for public sale,

and the proceeds shall be disbursed according to I.C. 34-24-1-6.” 1 Appellant’s

Appendix Volume II at 10. It also provided that “the law enforcement costs of

this action as defined in I.C. 34-6-2-73 exceed the value of the aforementioned

vehicle.” 2 Id.




1
    Ind. Code § 34-24-1-6 provides:

           (a) Where disposition of property is to be made at a public sale, notice of sale shall be
           published in accordance with IC 34-55-6.
           (b) When property is sold at a public sale under this chapter, the proceeds shall be
           distributed in the following order:
                    (1) First, to the sheriff of the county for all expenditures made or incurred in
                    connection with the sale, including storage, transportation, and necessary repair.
                    (2) Second, to any person:
                             (A) holding a valid lien, mortgage, land contract, or interest under a
                             conditional sales contract or the holder of other such interest; or
                             (B) who is a co-owner and has an ownership interest;
           up to the amount of that person’s interest as determined by the court.
           (3) The remainder, if any, shall be transferred by the sheriff to the appropriate fund as
           ordered by the court in section 4(d) of this chapter.
2
    Ind. Code § 34-6-2-73 provides:

           “Law enforcement costs”, for purposes of IC 34-24-1, means:
           (1) expenses incurred by the law enforcement agency that makes a seizure under IC 34-24-1
           (or IC 34-4-30.1 before its repeal) for the criminal investigation associated with the seizure;
           (2) repayment of the investigative fund of the law enforcement agency that makes a seizure
           under IC 34-24-1 to the extent that the agency can specifically identify any part of the
           money as having been expended from the fund; and
           (3) expenses of the prosecuting attorney associated with the costs of proceedings associated
           with the seizure and the offenses related to the seizure.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-1624 | March 27, 2020                         Page 3 of 7
[5]   Also in 2012, Bessler pled guilty under Cause No. 10 and was sentenced. 3 That

      same year, a jury found Bessler guilty of all counts under Cause No. 12, and

      this Court affirmed his convictions and sentence. See Bessler v. State, No.

      15A04-1201-CR-37 (Ind. Ct. App. December 31, 2012).


[6]   On April 8, 2019, Bessler filed a Motion for Order to Return Property under

      Cause No. 18 requesting the return of his 2005 Dodge Ram. 4 He asserted he

      was entitled to the property under Ind. Code § 35-33-5-5 and cited Timbs v.

      Indiana, 139 S. Ct. 682 (2019). 5 He also cited Ind. Code § 35-50-2-6, which

      provides that a person who commits a class C felony may be fined not more

      than $10,000, and asserted that his vehicle was valued at approximately $19,750

      at the time of forfeiture.


[7]   On April 25, 2019, the State filed a memorandum in opposition to Bessler’s

      motion asserting in part that the truck had been sold in compliance with the

      court’s order. On May 12, 2019, Bessler filed a reply. On May 29, 2019, the

      court denied Bessler’s motion “based on [the] agreed judgment filed in this




      3
        The record does not contain a plea agreement related to Cause No. 10. Bessler filed a petition for post-
      conviction relief with respect to Cause No. 10 and argued his trial counsel was ineffective for failing to move
      for discharge under Ind. Criminal Procedure Rule 4(B)(1) and failing to communicate a plea offer. See Bessler
      v. State, No. 18A-PC-123, slip op. at 6, 10 (Ind. Ct. App. July 10, 2019). The post-conviction court denied
      the petition, and we affirmed on appeal. Id. at 2.
      4
        Bessler also requested the return of “cash taken during the search warrant in the amount of $1,778 dollars
      included in the property receipt signed by Shane McHenry.” Appellant’s Appendix Volume II at 12. To the
      extent Bessler mentioned $1,778 in his motion for order to return property, we note that the State’s complaint
      for forfeiture and the agreed judgment referred to only Bessler’s vehicle.
      5
       In Timbs v. Indiana, 139 S. Ct. 682, 687 (2019), the United States Supreme Court held that the Excessive
      Fines Clause of the Eighth Amendment applies to the States through the Fourteenth Amendment.


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1624 | March 27, 2020                      Page 4 of 7
      matter on March 26, 2012, in which [Bessler] agreed upon forfeiting said

      property.” Appellant’s Appendix Volume II at 20.


                                                  Discussion

[8]   Before addressing Bessler’s argument, we observe that although he is

      proceeding pro se, such litigants are held to the same standards as trained

      attorneys and are afforded no inherent leniency simply by virtue of being self-

      represented. See Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Bessler

      argues that the agreed entry was an illusory plea because he did not benefit

      from the agreement. Without citation to the record, he asserts that he pled

      guilty to a class C felony and received the maximum sentence of eight years

      concurrent with a prior sentence of thirty years. He also asserts, without

      citation to the record, that the trial court and his attorney advised him he could

      receive a consecutive sentence, that “under drug task force convictions the

      sentence had to run concurrent,” and “[t]he same undercover detective made all

      of the drug deals made in both of [his] criminal cases, so they fall under a state-

      sponsored criminal sting operation.” Appellant’s Brief at 6. He asserts he was

      defrauded by the statements of the trial court and his defense counsel. Without

      citation to the record, he asserts he purchased his vehicle in 2008 for $28,000

      and that it was “blue booked at $18,750” at the time of seizure. Id. at 8. He

      cites Timbs v. Indiana, 139 S. Ct. 682 (2019), and argues that the forfeiture was

      grossly disproportionate to the maximum fine for a class C felony of $10,000.


[9]   We note that the March 26, 2012 entry was an agreed judgment. The Indiana

      Supreme Court has held “[a]n ‘Agreed Judgment’ represents an agreement of
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1624 | March 27, 2020   Page 5 of 7
the parties, not a judgment of the court. Thus, absent fraud, it is not

appealable.” Bemenderfer v. Williams, 745 N.E.2d 212, 215 n.2 (Ind. 2001). To

the extent Bessler appears to challenge his guilty plea under Cause No. 10 by

arguing he was defrauded by the statements of the trial court and his trial

counsel, we note that this appeal involves only the court’s May 29, 2019 order

denying his motion to return property under Cause No. 18. As for Bessler’s

argument that the agreed judgment was based on fraud because he “was told

that if he forfeited his truck he would receive a concurrent sentence, which he

had to receive because of state-sponsored criminal sting operation,” Appellant’s

Brief at 6, he cites authority suggesting that consecutive sentences are improper

when offenses involve a sale of the same drug to the same informant on several

occasions over a short period of time. Even assuming Bessler did not waive his

argument, we note that the offense under Cause No. 10 involved marijuana

while Cause No. 12 involved cocaine and that he does not point to the record

or develop a cogent argument. Further, to the extent Bessler cites Timbs v.

Indiana, 139 S. Ct. 682 (2019), he does not make a cogent argument that Timbs

is applicable under these circumstances, where there is an agreed judgment or

where the vehicle was sold years earlier. 6 Under the circumstances, we cannot

say that reversal is warranted.




6
  In Timbs v. Indiana, after Timbs’s guilty plea, the trial court held a hearing on the State’s forfeiture demand
and found that forfeiture of his vehicle was unconstitutional under the Eighth Amendment’s Excessive Fines
Clause. 139 S. Ct. at 686. Thus, this argument was raised in Timbs before the trial court at the time that
forfeiture was initially addressed.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-1624 | March 27, 2020                        Page 6 of 7
[10]   For the foregoing reasons, we affirm the trial court’s order.


[11]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1624 | March 27, 2020   Page 7 of 7
