                                                                                  FILED
                                                                             Jan 30 2020, 10:29 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Charles W. Lahey                                           Curtis T. Hill, Jr.
      South Bend, Indiana                                        Attorney General of Indiana

                                                                 Caroline G. Templeton
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jason L. Anderson,                                         January 30, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-2003
              v.                                                 Appeal from the LaPorte Superior
                                                                 Court
      State of Indiana,                                          The Honorable Michael S.
      Appellee-Plaintiff.                                        Bergerson, Judge
                                                                 Trial Court Cause No.
                                                                 46D01-0010-CF-124



      Najam, Judge.


                                        Statement of the Case
[1]   Jason L. Anderson appeals the trial court’s revocation of his probation.

      Anderson raises three issues for our review, which we restate as follows:



      Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020                            Page 1 of 11
              1.       Whether Anderson invited any error in the delay in his
                       sentencing on Count II when, in his plea agreement, he
                       affirmatively agreed to a delay of up to nearly ten years for
                       that sentencing.


              2.       Whether the trial court erred when it relied on the whole
                       of Anderson’s plea agreement to reject his argument that
                       he had been twice sentenced on Count I.


              3.       Whether the State presented sufficient evidence to support
                       the revocation of Anderson’s probation.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In September of 2000, the State charged Anderson with three counts of dealing

      in cocaine, two as Class A felonies and one as a Class B felony. In February of

      2001, Anderson entered into a written plea agreement with the State regarding

      those three charges, which agreement the trial court later accepted. According

      to the agreement:


              [7(A)].       [Anderson] will ple[a]d guilty under Count I[] to the
              lesser included offense of Dealing in Cocaine as [a] Class B
              Felony[] and to Count II, Dealing in Cocaine, as charged as a
              Class A Felony, respectively;


              B.     As to Count I, the State will recommend and [Anderson]
              will not oppose[] a sentence of ten (10) years incarceration at the
              Indiana Department of Correction[], of which ten (10) years will
              be suspended and served as follows:



      Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020          Page 2 of 11
                    i.    The first five (5) years of the suspended sentence
                    portion shall be served through the LaPorte County
                    Community Corrections Work Release Program.


                                          *        *        *


                    ii.    The second five (5) years of the suspended portion
                    shall be served . . . under the Court’s Order of
                    Probation . . . .


                                          *        *        *


          D.     As to Count II . . . , [Anderson] specifically waives his
          right to be sentenced within thirty (30) days and the cause will be
          continued for sentencing . . . as set forth below:


                    i.    If, on March 17, 2011, [Anderson] has complied
                    with all terms and conditions of Probation and Work
                    Release, the State will move to dismiss;


                    ii.    However, if[,] at the time of the sentencing hearing,
                    or anytime before, on motion of the State or Probation, the
                    Court determines that [Anderson] has violated the
                    conditions of Work Release or Probation, then the parties
                    will proceed to argue sentencing alternatives as authorized
                    by [law] on Count I [sic 1], Dealing Cocaine, as a Class A
                    felony.




1
    As discussed in more detail below, here the plea agreement is of course referring to Count II, not Count I.


Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020                                Page 3 of 11
              E.    The State will dismiss Count III[, dealing in cocaine as a
              Class A felony].


      Appellant’s App. Vol. 2 at 17-18 (italics removed).


[4]   In 2004, while Anderson was serving his probation pursuant to his plea

      agreement, the State filed a petition to revoke his probation. Thereafter,

      Anderson admitted to violating the terms of his probation. The trial court

      revoked Anderson’s probation and ordered him to serve ten years in the

      Department of Correction on Count I, the Class B felony, and a concurrent

      term of twenty years on Count II, the Class A felony.


[5]   In November of 2011, Anderson moved to modify his sentence. The court

      granted his motion and ordered him to serve six months in the LaPorte County

      Jail followed by work release for eighteen months. Thereafter, if compliant,

      Anderson would be permitted to serve “the remainder of [his] term” on

      probation. Id. at 24.


[6]   In 2017, while Anderson was serving his term of probation pursuant to the

      court’s 2011 order, the State filed a second petition to revoke Anderson’s

      probation. According to the State’s amended petition, Anderson violated the

      conditions of his probation when he committed new offenses of dealing in a

      narcotic drug, as a Level 2 felony; dealing in cocaine, as a Level 2 felony; and

      dealing in marijuana, as a Level 5 felony. The State also alleged that Anderson

      had committed new federal offenses of felony possession of firearms, for which

      Anderson had pleaded guilty in a federal district court.


      Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020       Page 4 of 11
[7]   Anderson moved to dismiss the State’s second petition to revoke his probation.

      According to Anderson, his current term of probation was based on paragraph

      7(D)(ii) of his plea agreement, that paragraph references “Count I,” Anderson

      had already served his sentence on Count I, and, thus, the court was without

      jurisdiction to place him on probation pursuant to the plea agreement. After a

      fact-finding hearing, the trial court denied Anderson’s motion to dismiss and

      found that he had violated the terms and conditions of his probation as alleged

      by the State. The court then ordered Anderson to serve ten years in the

      Department of Correction.


[8]   Anderson filed a motion to correct error and alleged, in addition, that the trial

      court had lost jurisdiction over him because the original sentencing order,

      which accepted the plea agreement, “created an unreasonable delay in

      sentencing and the sentence on Count II . . . was, consequently, without

      judicial authority and therefore void.” Id. at 45 (underlining removed).

      Anderson also renewed his argument from his motion to dismiss. The court

      heard argument on Anderson’s motion to correct error, after which it denied his

      motion. This appeal ensued.


                                      Discussion and Decision
                              Issue One: Purported Delay in Sentencing

[9]   On appeal, Anderson first asserts that the trial court erred as a matter of law

      when it failed to sentence him on Count II within thirty days of accepting his

      plea agreement in 2001. But we will not consider this argument. “[I]nvited


      Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020      Page 5 of 11
       error typically forecloses appellate review altogether.” Batchelor v. State, 119

       N.E.3d 550, 556 (Ind. 2019). “An appellant will not be permitted to take

       advantage of errors which he himself committed, or invited or induced the trial

       court to commit . . . .” Id. at 557 (quoting Armstrong v. Presslor, 225 Ind. 291,

       295, 73 N.E.2d 751, 753 (1947)). “[T]o establish invited error, there must be

       some evidence that the error resulted from the appellant’s affirmative actions as

       part of a deliberate, ‘well-informed’ trial strategy.” Id. at 558.


[10]   The trial court’s delay in sentencing Anderson on Count II resulted from the

       plain terms of Anderson’s own plea agreement. The agreement could not be

       more clear on precisely this point: “As to Count II . . . , [Anderson] specifically

       waives his right to be sentenced within thirty (30) days and the cause will be

       continued for sentencing” up to “March 17, 2011.” Appellant’s App. Vol. 2 at

       18. Anderson’s complaint on appeal that the trial court erred when it “created a

       delay in sentencing for more than ten years” as to Count II simply disregards

       the fact that the delay was the product of his own affirmative agreement.

       Appellant’s Br. at 10. Any error in the delay was invited by Anderson and is

       not available for appellate review.


                Issue Two: Whether Anderson Was Twice Sentenced On Count I

[11]   Anderson next relies on an obvious typographical error to assert that the court

       erred when it placed him on probation. Specifically, Anderson complains

       about the italicized language below from his plea agreement:




       Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020       Page 6 of 11
               D.     As to Count II . . . , [Anderson] specifically waives his
               right to be sentenced within thirty (30) days and the cause will be
               continued for sentencing . . . as set forth below:


                        i.    If, on March 17, 2011, [Anderson] has complied
                        with all terms and conditions of Probation and Work
                        Release, the State will move to dismiss;


                        ii.    However, if[,] at the time of the sentencing hearing,
                        or anytime before, on motion of the State or Probation, the
                        Court determines that [Anderson] has violated the
                        conditions of Work Release or Probation, then the parties
                        will proceed to argue sentencing alternatives as authorized
                        by [law] on Count I, Dealing Cocaine, as a Class A felony.


       Appellant’s App. Vol. 2 at 18 (emphasis added). According to Anderson, the

       italicized reference to Count I above means that the trial court had no authority

       to either sentence him to probation on Count II, because that is not what is

       written, or on Count I, in that, by that time, Anderson had served his sentence

       on Count I. In effect, Anderson continues, his placement on probation

       sentences him twice on Count I.


[12]   We interpret plea agreements de novo. State v. Smith, 71 N.E.3d 368, 370 (Ind.

       2017). Our ultimate goal is to determine the intent of the parties at the time

       they made the agreement. Id. We consider the agreement as a whole in

       determining its meaning. Care Grp. Heart Hosp., LLC v. Sawyer, 93 N.E.3d 745,

       752 (Ind. 2018).




       Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020       Page 7 of 11
[13]   Anderson’s argument on this issue is that “Count I, Dealing Cocaine, as a Class

       A felony” in paragraph 7(D)(ii) of his plea agreement speaks for itself. We

       agree that it does speak for itself—as an obvious typographical error. In the

       plea agreement, Anderson pleaded guilty to “Count I, . . . Dealing Cocaine as a

       Class B felony, and to Count II, Dealing in Cocaine, as charged as a Class A

       Felony . . . .” Appellant’s App. Vol. 2 at 17 (italics removed). That is, the only

       Class A felony he pleaded guilty to was charged under Count II, as made clear

       by paragraph 7(A) of his plea agreement. The plea agreement then, in

       paragraph 7(B), disposes of his sentence “[a]s to Count I.” Id. (italics removed).


[14]   Having disposed of that sentence, in paragraph 7(D) the agreement then

       proceeds to explain how the delayed sentencing “[a]s to Count II” will proceed.

       Id. at 18 (italics removed). In particular, that paragraph states that Anderson’s

       “sentencing” for “Count II” will be “as set forth below,” and subparagraphs (i)

       and (ii) then follow. Id. (italics removed). Those two subparagraphs operate to

       say, in effect, that, if Anderson were to successfully complete his suspended

       sentence on Count I, the State would move to dismiss Count II. “However,” if

       Anderson did not successfully complete the suspended sentence on Count I,

       “the parties [would] proceed to argue sentencing alternatives as authorized by

       [law] on Count I [sic], Dealing Cocaine, as a Class A Felony.” Id.


[15]   The last reference to “Count I” does not make any sense if read literally, as

       Anderson urges us to do. The reference is clearly intended to be to “Count II”

       based on the structure of the agreement, the whole of the text, and the

       immediately subsequent reference to a Class A felony. And, again, our goal in

       Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020      Page 8 of 11
       the interpretation of an agreement is to give effect to the intent of the parties

       based on the agreement as a whole. Accordingly, we reject Anderson’s

       argument on this issue.


                                 Issue Three: Sufficiency of the Evidence

[16]   Last, Anderson asserts that the State failed to present sufficient evidence to

       support the revocation of his probation. 2 A trial court’s decision that a violation

       of probation has occurred is reviewed for an abuse of discretion. Bennett v.

       State, 119 N.E.3d 1057, 1058 (Ind. 2019). An abuse of discretion occurs when

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

       circumstances before the court. Id.


[17]   The State alleged, among other things, that Anderson had violated the

       conditions of his probation when he committed new offenses. But, according to

       Anderson, the State failed to prove the date of any such offenses. Therefore, he

       continues, the State failed to prove that the alleged new offenses occurred

       “during the probationary period,” as necessary to establish those offenses as the

       grounds for revoking his probation. Ind. Code § 35-38-2-3 (a)(1) (2019).


[18]   Anderson’s probation officer, Lyn Swanson, testified at the probation

       revocation hearing. According to Swanson, Anderson reported to probation on

       November 27, 2012, and his scheduled release date from probation was




       2
        Insofar as Anderson’s argument on this issue is dependent on our agreeing with him on Issue Two,
       Anderson’s argument fails just as his argument on Issue Two fails.

       Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020                         Page 9 of 11
       February 5, 2019. A condition of Anderson’s probation was that he not

       commit new offenses. In its second petition to revoke Anderson’s probation,

       the State alleged that he had committed new state-level offenses consisting of

       two Level 2 drug offenses and one Level 5 drug offense. The State further

       alleged that Anderson had also committed new federal firearms offenses.

       Neither the probable cause affidavits nor informations for any of the new

       offenses are included in the record on appeal.


[19]   Swanson testified that, during that probationary period, Anderson was arrested

       on March 24, 2017, by the Michigan City Police Department on the three

       alleged drug offenses. However, Swanson did not testify as to when any of

       those three offenses were alleged to have occurred. Further, there is no

       limitations period for bringing Level 2 felony charges, and a Level 5 felony

       charge generally must be brought within five years of the commission of the

       offense. I.C. § 35-41-4-2. Thus, it is possible that each of those three offenses

       occurred prior to the commencement of Anderson’s probation in November of

       2012, while Anderson was on work release.


[20]   In the trial court, the State appears to have assumed that evidence of

       Anderson’s date of arrest was equivalent to the dates of the alleged offenses.

       But the two are not equivalent. Here, the dates of alleged offenses control, and

       a date of arrest, without more, is not sufficient to show that the new offenses

       were committed during the probationary period.




       Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020     Page 10 of 11
[21]   Nonetheless, the State admitted into evidence, without objection, certified

       documents from the United States District Court for the Northern District of

       Indiana regarding the federal firearms offenses. According to those documents,

       “while [Anderson was] a county jail detainee on drug charges”—there is no

       dispute that this is a reference to Anderson’s detainment following his March

       24, 2017, arrest—officers learned from “a monitored phone call from”

       Anderson that he had “three firearms, a large capacity magazine . . . , and drugs

       packaged for sale in a locked lock box” in violation of federal law. Ex. Vol. at

       15. Anderson was then transferred to the jurisdiction of the federal court,

       where he pleaded guilty to federal firearm offenses. The federal court sentenced

       Anderson for those offenses on August 2, 2018.


[22]   Accordingly, the State presented sufficient evidence that Anderson committed

       the federal firearms offenses during his probationary period. Sometime after

       March 24, 2017, and prior to August 2, 2018, Anderson possessed and admitted

       to possessing firearms in violation of federal law. As Anderson’s violation of

       federal law occurred during his probation, we affirm the trial court’s revocation

       of his probation.


[23]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2003 | January 30, 2020   Page 11 of 11
