MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Jan 27 2017, 8:54 am
regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General
Fort Wayne, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Deontray Foster,                                         January 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1609-CR-2232
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1603-F6-284



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017   Page 1 of 8
                                          Case Summary
[1]   The State presented Deontray Foster with a written plea agreement that it had

      signed. After Foster signed the agreement but before it was presented to the

      trial court, the State learned that Foster had failed to appear for his bond-

      supervision appointments in this case. Accordingly, the State withdrew from

      the agreement, and Foster pled guilty without the benefit of a plea agreement.

      Foster now appeals, asking us to re-examine Indiana law regarding the State’s

      authority to withdraw from plea agreements that have been signed by both the

      State and the defendant. We decline to change well-established Indiana law on

      this point and therefore affirm.



                             Facts and Procedural History
[2]   On March 10, 2016, the State charged Foster with the following counts: Count

      I, Level 6 felony kidnapping; Count II, Level 6 felony criminal confinement;

      Count III, Class A misdemeanor domestic battery; and Count IV, Class A

      misdemeanor interference with the reporting of a crime. Foster was

      conditionally released on a surety bond pending trial.

[3]   The State presented Foster with a written plea agreement on June 23, 2016. Ex.

      A. The plea agreement was signed by the Allen County Prosecutor as well as

      the deputy prosecutor assigned to the case. According to the terms of the

      agreement, Foster would plead guilty to Counts II and III and, in exchange, the

      State would dismiss Counts I and IV. In addition, Foster would receive


      Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017   Page 2 of 8
      consecutive sentences of two years for Count II and one year for Count III, all

      suspended to probation.

[4]   Six days after the plea agreement was presented to Foster, on June 29, Allen

      Superior Court Pretrial Services filed a notice with the trial court that Foster

      had failed to appear for two supervision appointments that month. Appellant’s

      App. p. 14; see also Sent. Tr. p. 15 (Foster admitting that he did not have any

      excuses for failing to appear). The court issued a bench warrant for Foster’s

      arrest, and he was arrested and held without bond.

[5]   On August 23, 2016, Foster appeared before an Allen Superior Court

      magistrate for a guilty-plea hearing. Notably, the plea agreement presented to

      Foster on June 23 was not mentioned during this hearing. See generally Guilty

      Plea Tr. Instead, the trial court confirmed with Foster that he was pleading

      guilty to Counts II, III, and IV (as opposed to just Counts II and III, as

      provided for in the June 23 plea agreement) “without the benefit of a plea

      agreement.” Id. at 6 (emphasis added). The trial court also discussed the

      sentencing range for each count as well as the fact that it was up to the court to

      decide whether his sentences would be served concurrently or consecutively

      and whether any time would be suspended. Id. at 8. After confirming with the

      court that no promises had been made to him to cause him to plead guilty, id. at

      9, Foster pled guilty to Counts II, III, and IV. The State then moved to dismiss

      Count I. The court accepted Foster’s guilty plea to Counts II, III, and IV,

      ordered a presentence-investigation report, and set the matter for sentencing

      before the judge on September 22.

      Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017   Page 3 of 8
[6]   At the sentencing hearing, the judge confirmed with Foster that he had pled

      guilty to Counts II, III, and IV. Defense counsel recommended a two-year

      sentence, all suspended to probation. In contrast, the deputy prosecutor

      recommended an executed sentence of three years based on Foster’s criminal

      history and failure to report to pretrial services while on bond in this case. In

      response to the deputy prosecutor’s recommendation, defense counsel offered

      into evidence the June 23 plea agreement, which was signed by Foster on

      August 23 and file-stamped that same day as well—the very day that he pled

      guilty to Counts II, III, and IV “without the benefit of a plea agreement.” The

      deputy prosecutor objected, claiming that the plea agreement had expired

      before Foster signed it and in any event was no longer “on the table” because

      Foster had failed to report to pretrial services in this case, requiring a warrant

      for his arrest. Sent. Tr. p. 13. Defense counsel conceded that the June 23 plea

      agreement “did not proceed” and confirmed that he was “not contesting the

      guilty plea”1 but explained to the judge what had happened:

              What occurred is we had kind of a sit down with this plea, and
              then the Deputy Prosecuting Attorney screwed with the Court,
              grabbed the plea out of the Magistrate Judge’s hands and ripped
              it up here. So we proceeded on the basis of a straight up plea so
              that we could contest this fabulous sentencing.




      1
       According to Indiana Code section 35-35-1-4(b), the trial court, before sentencing, may allow a defendant to
      withdraw his guilty plea “for any fair and just reason.”

      Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017           Page 4 of 8
      Id. at 6, 12. On appeal, Foster claims that this event occurred at the August 23

      guilty-plea hearing, see Appellant’s Br. p. 8, but it is not reflected in the

      transcript of that hearing. In any event, the deputy prosecutor admitted that she

      ripped up the plea agreement because of its expiration as well as “the

      intervening act” of Foster failing to report to pretrial services in this case. Sent.

      Tr. p. 13 (“He has shown he’s not appropriate for Court supervision by his

      actions after this plea was tendered, and because it was ripped up, that means it

      was no longer a binding contract at all and not for the Court’s consideration.”).

      Defense counsel maintained that it was “relevant to the Court’s consideration

      as to what sentence should be given in this case” because it showed that the

      State thought a three-year suspended sentence was appropriate. Id. at 12.


[7]   The trial court admitted the plea agreement into evidence. However, the court

      sentenced Foster to two-and-a-half years, all executed. The court identified as a

      mitigator that Foster had taken responsibility and pled guilty. As aggravators,

      the court identified Foster’s criminal history (nine juvenile adjudications, six

      misdemeanors, and three felonies), his prior conviction for criminal

      confinement (the same conviction as one of the convictions in this case), his

      prior conviction for an unauthorized absence from home detention (which

      showed his failure at community supervision), and his failure to report to

      pretrial services while on bond in this case.

[8]   Foster now appeals.




      Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017   Page 5 of 8
                                  Discussion and Decision
[9]    Foster contends that “the trial court erred in entering a sentence wildly in excess

       of [the June 23 plea] agreement.” Appellant’s Br. p. 11. Under current Indiana

       law, he concedes that the trial court “was under no duty or compulsion to

       sentence [him] pursuant to the terms of the” June 23 plea agreement; however,

       he claims that “it is time for this Court to re-examine” Indiana law concerning

       the State’s authority to withdraw from plea agreements that have been signed

       by both the State and the defendant. Id. We decline to change well-established

       Indiana law on this point.

[10]   Our plea-bargaining process is controlled largely by statute. Badger v. State, 637

       N.E.2d 800, 802 (Ind. 1994); see also Ind. Code ch. 35-35-3; Ind. Code §§ 35-

       31.5-2-236, -272. As recognized by our Supreme Court, the statutory

       framework provides, directly or implicitly, for five stages to the plea-bargaining

       process: (1) the State and the defendant reach an agreement concerning the

       disposition of felony or misdemeanor charges; (2) the State presents the

       agreement to the trial court along with any recommendation; (3) the court

       decides whether to accept or reject the agreement as filed (if the court accepts

       the agreement, it becomes bound by the terms; but if the court rejects the

       agreement, new agreements may be reached); (4) the actual entry of the guilty

       plea; and (5) sentencing. Badger, 637 N.E.2d at 802-03.


[11]   Here, this case never reached Step 2. Even though Foster signed the plea

       agreement on August 23 and had it file-stamped that same day, the agreement


       Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017   Page 6 of 8
       was not presented on the record to the court for consideration. Instead, Foster

       voluntarily pled guilty “without the benefit of a plea agreement.”


[12]   But even if the State had presented the June 23 plea agreement to the trial court

       for consideration, the State has the freedom to withdraw from a plea agreement

       before it is accepted by the court.2 Mendoza v. State, 869 N.E.2d 546, 552 (Ind.

       Ct. App. 2007), trans. denied; see also Campbell v. State, 17 N.E.3d 1021 (Ind. Ct.

       App. 2014) (holding that the trial court properly allowed the State to withdraw

       from a plea agreement even after the court had accepted it based on the

       defendant’s breach of the agreement’s express terms). In other words, offer and

       acceptance of an agreement by the parties does not compel acceptance of the

       agreement by the court; otherwise, there would be no need for Step 3, where the

       court chooses to accept or reject the agreement. Badger, 637 N.E.2d at 803;

       Coker v. State, 499 N.E.2d 1135, 1138 (Ind. 1986) (explaining that even the

       immediate acceptance of an offer by the defendant does not create a right to

       have that agreement specifically enforced), reh’g denied; see also Ind. Code § 35-

       35-3-3 (explaining the trial court’s choice to accept or reject a plea agreement

       and the effect of each choice).

[13]   Accordingly, it is well-established law in this state that a plea agreement only

       becomes binding when it is accepted by the trial court. I.C. § 35-35-3-3(e) (“If




       2
        The only exception is when the State has materially benefitted from the terms of the agreement or the
       defendant has relied on terms of the agreement to his substantial detriment, both of which Foster concedes do
       not apply here. Appellant’s Br. p. 11.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017          Page 7 of 8
       the court accepts a plea agreement, it shall be bound by its terms.”); Badger, 637

       N.E.2d at 803. And this rule makes perfect sense in cases like these, where

       there are circumstances that occur or come to light after a plea agreement is

       signed by both parties but before it is presented to the court for acceptance or

       rejection. See Stone v. State, 27 N.E.3d 341, 343 (Ind. Ct. App. 2015) (noting

       that the court is free to reject a plea agreement if the defendant engages in

       misconduct before the guilty-plea hearing). Here, after presenting Foster with

       the plea agreement, the State found out that he had missed two pretrial services

       appointments that month. Based on this, the State understandably was

       unwilling to recommend a sentence of probation to a defendant who could not

       obey the terms of his conditional release in that very case. The State acted

       within its authority when it withdrew from the June 23 plea agreement;

       therefore, Foster was not entitled to have the court consider the agreement for

       either acceptance or rejection or to be sentenced in accordance with it.3

[14]   Affirmed.


       Bradford, J., and Brown, J., concur.




       3
         In the alternative, Foster asks us to use our inherent power to revise to his sentence to “two and one
       half years (2 ½), all suspended, with three (3) years” of probation. Appellant’s Br. p. 18. Given
       Foster’s criminal history and failure to report to pretrial services while on bond in this case, we find
       that Foster’s two-and-a-half-year executed sentence for two Class A misdemeanors and one Level 6
       felony is not inappropriate.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1609-CR-2232 | January 27, 2017              Page 8 of 8
