                                                             Mar 12 2015, 9:54 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
David Rosselot                                             Gregory F. Zoeller
Kokomo, Indiana                                            Attorney General of Indiana

                                                           Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Bryan P. Stone                                             March 12, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           34A02-1410-CR-753
        v.                                                 Appeal from the Howard Superior
                                                           Court
                                                           The Honorable William Menges,
State of Indiana,                                          Judge
Appellee-Plaintiff                                         Cause No. 34D01-1206-FA-532




Bailey, Judge.




Court of Appeals of Indiana | Opinion 34A02-1410-CR-753 | March 12, 2015                 Page 1 of 8
                                             Case Summary
[1]   Bryan P. Stone (“Stone”) was convicted after a jury trial of four counts of

      Dealing in Cocaine as a Class A felony,1 and was adjudicated to be a Habitual

      Substance Offender.2 He was sentenced to an aggregate term of imprisonment

      of forty-five years.


[2]   He now appeals. We reverse and remand with instructions.



                                                        Issue
[3]   Stone presents two issues for our review. We find one of these dispositive,

      namely, whether the trial court abused its discretion when, after accepting a

      plea agreement between Stone and the State and entering judgment of

      conviction against Stone pursuant to the agreement, the trial court withdrew its

      acceptance of the plea agreement and ordered Stone to stand trial. 3



                               Facts and Procedural History




      1
        Ind. Code § 35-48-4-1. The Indiana General Assembly amended the classification of criminal offenses
      effective July 1, 2014. We refer throughout our decision to the statutes in effect at the time of Stone’s
      offenses.
      2
          I.C. § 35-50-2-10.
      3
       Because we find the first issue dispositive, we do not address Stone’s second designated issue on appeal,
      whether his double-jeopardy rights under the Fifth Amendment were violated as a result of his trial after the
      court vacated his plea agreement.

      Court of Appeals of Indiana | Opinion 34A02-1410-CR-753 | March 12, 2015                           Page 2 of 8
[4]   On two occasions on April 30, 2012, and once each on May 1 and May 16,

      2012, at a location in Howard County, Stone delivered cocaine to another

      person.


[5]   On June 16, 2012, Stone was charged with four counts of Dealing in Cocaine,

      as Class A felonies. On June 19, 2012, the State alleged that Stone was a

      Habitual Substance Offender.


[6]   On April 25, 2014, Stone and the State entered into a plea agreement. Pursuant

      to the agreement, Stone pled guilty to four counts of Dealing in Cocaine, as

      Class B felonies. The State agreed to dismiss the Class A-felony charges and

      the Habitual Substance Offender enhancement. The agreement further

      provided that the State would recommend concurrent sentences of twenty years

      imprisonment for each offense, with fifteen years executed time (the last two of

      which were to be served on in-home detention) and with five years suspended

      to probation.


[7]   Also on April 25, 2014, the trial court conducted a guilty plea hearing, during

      which Stone admitted to the offenses pursuant to the agreement. The trial court

      accepted the plea agreement, entered judgments of conviction against Stone for

      four counts of Class B-felony Dealing in Cocaine, and ordered a presentencing

      investigation.


[8]   On July 2, 2014, a hearing was conducted as a result of Stone’s failure to appear

      for a presentencing investigation. At the beginning of the (brief) hearing, the

      trial court sua sponte stated, “Show the plea agreement is rejected.” (Tr. at 15.)

      Court of Appeals of Indiana | Opinion 34A02-1410-CR-753 | March 12, 2015   Page 3 of 8
       Stone objected that the trial court had already conducted a guilty plea hearing,

       accepted the plea agreement, and entered judgments of conviction. In response

       to the objection, the trial court reaffirmed its rejection of the plea agreement,

       reinstated Stone’s prior plea of not guilty, and set dates for a pretrial conference

       and a jury trial. The trial court announced no rationale for its decision.


[9]    During a pretrial hearing on September 5, 2014, Stone renewed his objection to

       the setting of a trial date. The State did not oppose going to trial, stating that

       Stone had failed to appear for a sentencing hearing. Stone’s counsel corrected

       the record, representing to the court that Stone failed to appear for a

       presentencing investigation meeting as a result of miscommunication on the

       part of counsel, but the investigation was eventually completed. The trial court

       again reaffirmed its decision rescinding the plea agreement and opined that the

       rejection of the plea agreement worked no prejudice upon Stone. (Tr. at 20-21.)


[10]   On September 8 and 9, 2014, a bifurcated jury trial was conducted. At the

       conclusion of the trial’s first phase, Stone was found guilty of four counts of

       Dealing in Cocaine, as Class A felonies. At the conclusion of the second phase,

       the jury found as true the State’s allegation that Stone was a Habitual Substance

       Offender.


[11]   On October 1, 2014, a sentencing hearing was conducted. At the hearing’s

       conclusion, the trial court entered judgments of conviction against Stone and

       sentenced him to forty years imprisonment for each count of Dealing in

       Cocaine, with the sentences run concurrent with one another, and ordered the


       Court of Appeals of Indiana | Opinion 34A02-1410-CR-753 | March 12, 2015     Page 4 of 8
       sentence enhanced by five years as a result of Stone’s status as a Habitual

       Substance Offender.


[12]   This appeal ensued.



                                  Discussion and Decision
[13]   Stone appeals the trial court’s decision that rejected his plea agreement and

       vacated judgments of conviction for Dealing in Cocaine, as Class B felonies,

       after the court had previously accepted the plea agreement.


[14]   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. See, e.g., Reffett v. State, 571 N.E.2d 1227, 1229-30 (Ind.

       1991); Kline v. State, 875 N.E.2d 435, 437 (Ind. Ct. App. 2007); Roark v. State,

       829 N.E.2d 1078, 1080-81 (Ind. Ct. App. 2005); Benson v. State, 780 N.E.2d 413,

       423 (Ind. Ct. App. 2002), trans. denied; Lee v. State, 652 N.E.2d 113, 114 (Ind.

       Ct. App. 1995); Steele v. State, 638 N.E.2d 1338, 1339-40 (Ind. Ct. App. 1994).


[15]   Our appellate courts have on occasion, however, found trial courts to have

       discretion to rescind plea agreements even after judgments of conviction have

       Court of Appeals of Indiana | Opinion 34A02-1410-CR-753 | March 12, 2015   Page 5 of 8
       been entered. The State directs us to two such cases: Beech v. State, 702 N.E.2d

       1132 (Ind. Ct. App. 1998), and Campbell, supra. In Beech, this Court affirmed

       the trial court’s decision to rescind Beech’s plea agreement where he stated

       during his sentencing hearing that he was actually innocent of the offense. 702

       N.E. 2d at 1136. In Campbell, we affirmed a trial court’s decision rescinding a

       plea agreement where the agreement had previously been accepted. 17 N.E.3d

       at 1025. Among the terms of the plea agreement in Campbell was a

       requirement that Campbell testify in subsequent trials against his co-defendants.

       Id. at 1024. We held that when Campbell failed to do so, he had violated the

       terms of the agreement, and the trial court was within its discretion to rescind

       the plea agreement and vacate Campbell’s plea. Id. at 1024-25.


[16]   Here, relying upon Beech and Campbell, the State claims that Stone’s conduct in

       failing to attend the scheduled presentencing investigation was sufficient to

       permit the trial court to rescind the plea agreement. Yet both of the cases the

       State relies upon are inapposite. In Beech, this Court relied upon standing

       precedent that, in light of “Indiana’s long-standing disdain for ‘best interest’

       pleas,” a claim of actual innocence affords trial courts discretion to rescind plea

       agreements. 702 N.E.2d at 1137. In Campbell, the defendant violated the

       express terms of the plea agreement, which required him to testify at trials of his

       co-defendants. 17 N.E.3d at 1024-25.


[17]   In this case, Stone did not violate any of the express terms of the agreement, nor

       claim actual innocence. The State, recognizing this, contends that Stone’s

       failure to appear and subsequent exposure to additional (and apparently yet-to-

       Court of Appeals of Indiana | Opinion 34A02-1410-CR-753 | March 12, 2015    Page 6 of 8
       be-adjudicated) criminal charges “produced a set of circumstances that had they

       existed at the time of the plea hearing could well have caused the trial court, in

       its discretion, to not have accepted the plea agreement in the first place.”

       (Appellee’s Br. at 8.) The State argues further that Stone’s participation in the

       agreement “was a sham and … he did not intend to honor it,” since his failure

       to attend the initial presentencing investigation meeting presumably indicates

       that he would freely violate probation and would commit new criminal

       offenses. (Appellee’s Br. at 8-9.)


[18]   While the trial court may have rejected a plea had Stone engaged in misconduct

       prior to his guilty plea hearing, the fact remains that Stone’s purported

       misconduct occurred after he had admitted to four criminal offenses in open

       court. What the trial court may have done with other knowledge is not relevant

       here, as Indiana courts have held since Reffet. 571 N.E.2d at 1230. Further, the

       terms of the plea agreement here did not require Stone to satisfy all the terms of

       his probation, or seem likely to do so, lest the plea agreement be rescinded and

       the State take him to a jury trial. The terms of the plea agreement make no

       provision for this, and accepting the State’s rationale on this point would risk

       rendering thousands of plea agreements void, even years later, as a result of

       probation violations.


[19]   The trial court lacked authority to rescind the plea agreement, vacate Stone’s

       convictions, and set the matter for trial. We accordingly reverse the judgment

       of the trial court, order it to enter judgments of conviction pursuant to the plea



       Court of Appeals of Indiana | Opinion 34A02-1410-CR-753 | March 12, 2015    Page 7 of 8
       agreement, and to sentence Stone within the discretion afforded to it by the plea

       agreement.


[20]   Reversed and remanded.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 34A02-1410-CR-753 | March 12, 2015   Page 8 of 8
