MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                      Aug 11 2015, 7:32 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Dexter Berry                                              Gregory F. Zoeller
Pendleton, Indiana                                        Attorney General of Indiana

                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Dexter Berry,                                            August 11, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1410-CR-746
        v.                                               Appeal from the Marion Superior
                                                         Court

State of Indiana,                                        The Honorable Clark Rogers, Judge
                                                         Cause No. 49F25-1203-FB-14944
Appellee-Plaintiff.




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015        Page 1 of 10
[1]   Dexter Berry, pro se, appeals his sentence following remand. Berry raises three

      issues which we consolidate and restate as whether the trial court erred or

      abused its discretion in resentencing Berry on remand. We affirm.


                                      Facts and Procedural History

[2]   The facts were set forth in part in the Indiana Supreme Court’s opinion in Berry

      v. State, 10 N.E.3d 1243 (Ind. 2014), and this court’s memorandum decision in

      Berry v. State, No. 49A04-1301-CR-34 (Ind. Ct. App. October 4, 2013), trans.

      granted, summarily aff’d in part, 10 N.E.3d 1243 (Ind. 2014). In March 2012,

      Berry broke and entered into the dwelling of Luz and Sergio Arcos. Berry, No.

      49A04-1301-CR-34, slip op. at 1. Berry was charged with burglary as a class C

      felony and theft as a class D felony and later pled guilty to burglary as a class B

      felony and several lesser offenses as part of a combined plea agreement in

      connection with several cases. Berry, 10 N.E.3d at 1244. The plea agreement

      provided in part:

              . . . [T]he State of Indiana and the Defendant agrees [sic] that the
              Court shall impose the following sentence:
              Total combined sentence:
              Set term of 10 years initial executed sentence, open to placement. The
              Court may impose an additional period of time beyond these 10 years
              and require the Defendant to serve a portion or all of that suspended
              time on probation.
                                                    *****
              Stay away from [the home where Defendant committed the B-felony
              burglary]. . . . All other aspects of the Defendant’s sentence to be left to the
              discretion of the Court, after argument by the parties, including but not limited
              to, where the Defendant will serve any executed portion of his sentence.
              Should the Defendant violate the terms and conditions of his

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 2 of 10
              probation, the Court may order any or all of the suspended time to be
              executed.

      Id. at 1244-1245. Thus, the agreement expressly conferred discretion to

      determine the placement for the executed sentence, but contained no express

      provision for setting a restrictive placement for any additional suspended time.

      Id. at 1245. Additionally, the plea agreement specified that Berry pay

      restitution to three of his victims under other causes, which amounts when

      added together equaled $3,000, but did not specify that restitution was to be

      made to Luz and Sergio. Berry, No. 49A04-1301-CR-34, slip op. at 1.


[3]   The parties’ arguments at sentencing focused on the trial court’s discretion for

      the placement of the executed sentence. Berry, 10 N.E.3d at 1246. Also at

      sentencing, the deputy prosecutor requested that the trial court order Berry to

      pay restitution in the amount of $1,370 to Luz and Sergio, and after a

      discussion Berry’s counsel advised the court that Berry “is just indicating to me

      that he doesn’t wish to dispute any of that amount,” that “[t]hose amounts on

      them, so that [is] a non-issue,” and that counsel would “withdraw any issue

      with any of that.” Berry, No. 49A04-1301-CR-34, slip op. at 3. The trial court

      requested clarification and stated “[s]o we’re okay on restitution that’s been

      claimed so far,” and Berry’s counsel responded, “[y]es, ma’am.” Id. The trial

      court sentenced Berry to fifteen years for his conviction for burglary as a class B

      felony, with ten years executed in prison and five years suspended. Berry, 10

      N.E.3d at 1246. The court also ordered that two of the suspended years be

      served on probation and that “the first year of your probationary period be


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 3 of 10
      spent through work release to get yourself back into the attitude that a fulltime

      job is important and necessary.” Id. The court also ordered Berry to pay

      restitution to Luz and Sergio in the amount of $1,370 for a total restitution

      order of $4,370.


[4]   Berry appealed and argued that the court’s order that he serve one year of his

      probation on work release violated the terms of his plea agreement and that the

      order he pay restitution to Luz and Sergio amounted to an increase in his

      penalty outside the terms of his plea agreement. By memorandum decision,

      this court found that Berry did not establish error on these bases, and Berry

      sought transfer.


[5]   In setting forth the standard of review, the Indiana Supreme Court observed

      that, “[a]s a general proposition trial courts have broad discretion in setting

      conditions of probation, subject to appellate review only for an abuse of

      discretion.” Id. (citing Freije v. State, 709 N.E.2d 323, 324 (Ind. 1999)). The

      Court further noted that, if the court accepts a plea agreement, it shall be bound

      by its terms, thus limiting the court’s otherwise broad discretion in ordering

      conditions of probation. Id. The Court also stated that a plea agreement’s

      terms are in the nature of contracts entered into between the defendant and the

      State and that, because of the important due process rights involved, contract

      law principles are not necessarily determinative but can provide guidance in the

      consideration of the agreement. Id. (citing Lee v. State, 816 N.E.2d 35, 38 (Ind.

      2004)).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 4 of 10
[6]   In addressing restrictive placements as a condition of probation, the Court

      stated that, in Freije, it had reiterated that any “condition of probation which

      imposes a substantial obligation of a punitive nature is indeed part of the

      sentence and penalty and must be specified in the plea agreement.” Id. at 1247

      (citing Freije, 709 N.E.2d at 324). The Court further noted that Freije held that

      home detention and community service were substantial obligations of a

      punitive nature and thus may not be imposed in the absence of a plea

      agreement provision giving the trial court discretion to impose conditions of

      probation. Id. (citing Freije, 709 N.E.2d at 325-326).


[7]   The Court then observed that a provision of Berry’s plea agreement “restrict[ed]

      the court’s discretion as ‘including[,] but not limited to, where the Defendant

      will serve any executed portion of his sentence’” and noted that the provision

      “specifically grant[ed] discretion to determine the placement of Defendant’s

      executed sentence” but was “silent as to any such discretion to impose any

      restrictive placement for probation—when Freije requires that any authority to

      set punitive conditions of probation ‘must be specified in the plea agreement,’

      709 N.E.2d at 324 (emphasis added) . . . .” Id. at 1248. The Court also noted

      that, at no time during the trial court’s discussion with Berry and defense

      counsel, did the court suggest that it understood its placement discretion to

      extend to Berry’s probation time. Id. at 1248-1249. The Court held that,

      “[w]ith no clear grant of such authority in the agreement itself, no indication

      that any of the parties understood the plea agreement to confer such discretion,

      and a specific provision that implies the absence of discretion over the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 5 of 10
      placement of [Berry’s] probation,” the Court “must conclude that the trial court

      lacked authority to impose a punitive placement for [Berry’s] probation.” Id. at

      1249. The Court then stated: “We therefore grant transfer; reverse and remand

      with instructions to accept or reject the plea agreement as written and, if

      accepted, resentence [Berry] consistent with its terms; and otherwise summarily

      affirm the Court of Appeals.” Id.


[8]   On remand, the trial court held a hearing on September 22, 2014, and indicated

      that it was still accepting Berry’s guilty plea pursuant to the plea agreement and

      that it would resentence Berry without the requirement that he be placed on

      work release for a year during his probation. The court resentenced Berry to

      fifteen years, with ten years executed and five years suspended. The court also

      ordered that he be placed on probation for two years, but it did not include any

      order or requirement that Berry be placed on work release during his

      probationary period. The court referenced the previous restitution order and

      again ordered Berry to pay total restitution of $4,370.


                                                  Discussion

[9]   The issue is whether the trial court erred or abused its discretion in resentencing

      Berry on remand. We initially observe that Berry is proceeding pro se. Such

      litigants are held to the same standard as trained counsel. Evans v. State, 809

      N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. We review a trial court’s

      sentencing determination for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An

      abuse of discretion occurs if the decision is “clearly against the logic and effect
      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 6 of 10
       of the facts and circumstances before the court, or the reasonable, probable, and

       actual deductions to be drawn therefrom.” Id. If the court accepts a plea

       agreement, it shall be bound by its terms, thus limiting the court’s otherwise

       broad discretion. Ind. Code § 35-35-3-3(e); Berry, 10 N.E.3d at 1246. A plea

       agreement’s terms are in the nature of contracts entered into between the

       defendant and the State and, because of the important due process rights

       involved, contract law principles are not necessarily determinative but can

       provide guidance in the consideration of the agreement. Berry, 10 N.E.3d at

       1246 (citing Lee, 816 N.E.2d at 38).


[10]   Berry asserts that, “[o]nce the prior plea-acceptance was reversed it vacated all

       prior sentences” and that the trial court disregarded the mandate of the Indiana

       Supreme Court and instead conducted a sentence modification hearing.

       Appellant’s Brief at 7. He also asserts the court erred in ordering restitution in

       the total amount of $4,370 rather than $3,000.


[11]   The State maintains that the Indiana Supreme Court’s opinion did not vacate

       Berry’s guilty pleas, that the Court found that Berry’s sentence violated his plea

       agreement because the trial court imposed a year of work release in addition to

       the agreed upon executed sentence and remanded with instructions for the trial

       court to determine if it still wished to accept the plea agreement, and that the

       trial court fulfilled this mandate by entering a new sentencing order which

       removed the work release requirement but did not otherwise alter Berry’s

       sentence. It also argues Berry has already challenged the propriety of restitution

       to Luz and Sergio of $1,370 in his first appeal, that this court found that he had

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 7 of 10
       acquiesced to the additional amount during sentencing, and that the Indiana

       Supreme Court summarily affirmed that portion of this court’s decision.


[12]   With respect to whether the Indiana Supreme Court required that each of

       Berry’s sentences be vacated, the Court’s opinion addressed the specific issue of

       whether the terms of Berry’s plea agreement permitted the trial court to impose

       punitive conditions, specifically a restrictive placement during probation, in

       excess of the executed-time cap. Berry, 10 N.E.3d at 1247. The Court

       concluded that the trial court lacked authority to impose such a restrictive

       placement during Berry’s probation. Id. at 1249. The Court then reversed and

       remanded “with instructions to accept or reject the plea agreement as written

       and, if accepted, resentence Defendant consistent with its terms . . . .” Id. On

       remand, the trial court at the September 22, 2014 hearing stated “first of all I’ll

       accept the plea,” that it could “either accept or reject it, but I’ll accept it,” and

       that it would then “resentence him without the restrictions on probation.”

       Transcript at 3. The court noted that the restriction “was you had to do a year

       of work release on probation and [the Indiana Supreme Court] said can’t do

       that,” and Berry replied “I agree with that, Judge.” Id. Consistent with the

       opinion of the Indiana Supreme Court and its instructions on remand, the trial

       court accepted Berry’s plea pursuant to the plea agreement and resentenced him

       without the requirement that he be placed on work release during his probation.

       In resentencing Berry, the court did not impose a punitive condition or

       restrictive placement for Berry’s probation in excess of the executed-time cap

       and thus sentenced him in accordance with the plea agreement. Berry’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 8 of 10
       arguments that the Indiana Supreme Court’s opinion required the trial court on

       remand to vacate his sentences or that the trial court disregarded the mandate of

       the Indiana Supreme Court are not persuasive. Further, to the extent Berry

       argues the trial court failed to issue new sentencing orders in other cases

       covered by the plea agreement, we note that Berry appeals the court’s

       resentencing order under this cause only, that he does not argue the sentences

       imposed in the other cases were improper under the plea agreement, and that

       the Indiana Supreme Court’s opinion did not reverse the sentences issued in the

       other cases. 10 N.E.3d 1243.


[13]   As to his argument that the trial court erred in ordering him to pay restitution in

       the total amount of $4,370, this court’s previous memorandum decision

       addressed this issue and affirmed the court’s restitution order. See Berry, No.

       49A04-1301-CR-34, slip op. at 3. Specifically, this court found that the deputy

       prosecutor requested restitution of $1,370 to Luz and Sergio, that there was a

       discussion related to which items had been recovered and their condition, and

       that Berry did not dispute the amount and acquiesced to the deputy prosecutor’s

       request for restitution. Id. We concluded that Berry did not establish reversible

       error with respect to the court’s restitution order. Id. As noted above, the

       Indiana Supreme Court’s opinion did not address any issue or argument related

       to the trial court’s order of restitution and summarily affirmed this court’s

       opinion on all issues except for the issue of placement on probation. Thus, the

       Court did not disturb this court’s previous decision as to the restitution order.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 9 of 10
[14]   Based upon the record, we conclude that the trial court did not err or abuse its

       discretion in resentencing Berry following remand.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Berry’s sentence.


[16]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-746 | August 11, 2015   Page 10 of 10
