*1 seq. legislative Ind.Code 8-1-2-1 et This is a matter. It is not our powers function to determine what it would tangentially Commission mentions in Commission, grant be wise to but rather provisions brief these lending as also granted powers decide what have been support to its authority. claim of It does Legislature. the Commission explain how it finds solace from the provisions act, of this which includes 120 Despite statutory provi- the numerous sections and up pages takes court, sions reviewed this we can find no (1971) (Burns). Ind.Code Ann. provision granting the Commission the au-
Indeed, reading from our thority governing of the act it to issue extensive rules appears to exclude municipal utilities from operation municipal utilities jurisdiction Commission’s except where keeping prior conclusion in case law. specifically provided. otherwise The term Consequently, the decision of the Commis- public utilities specifically excludes munici- sion must be reversed. pal (Ind.Code 8-1-2-1). utilities While the Reversed. given Commission power investigate complaints against public (see made utilities SHIELDS, JJ., and concurs. SULLIVAN 8-1-2-54, -58, -69) Ind.Code provi- no such sion is made as municipal utilities. Mu-
nicipalities, hand, given on the other
authority acquire operate any utility
within a six mile corporate radius of the
limits without the consent of the Commis-
sion and obtaining without a certificate of
public convenience necessity from the
Commission; obtaining this includes rights of other BULLOCK, Appellant utilities without the Com- Yvonne approval (Ind.Code mission’s 8-1-2-90). (Defendant Below), A clear statement indicating that .v jurisdiction Commission’s over municipal Indiana, Appellee STATE of utilities is limited provided by Ind.Code (Plaintiff Below). 2-97(b): 8-1— (b) Any municipality No. within this state 2-678A202.
shall power construct, have the ac- Indiana, Appeals Court of quire, purchase, condemn, operate and/or Second District. manage any utility, or make extensions replacements or to such municipally- Dec. utility owned approval without public consent of the service commission.
It 8-1-2-100, is true that under Ind.Code given jurisdiction Commission is over
municipal But, utilities’ rates. the Commis-
sion may totally be jurisdic- divested of this
tion the voters of the individual munici-
palities general in a election.
A argument final presented by interve-
nor Home Builders Association of Indiana.
Home Builders contends that unless the given seeks,
Commission is authority it
municipal may subject utilities to the
federal protection consumer act and the
Indiana uniform consumer credit code.
3H Mann, appel- for Indianapolis, Robert G. lant. Sendak, Gen., Philip R. Atty. L.
Theo. Gen., Indianapolis, Blowers, Deputy Atty. appellee. BUCHANAN, Judge. Chief
CASE SUMMARY ap- (Bullock) Defendant Yvonne Bullock the Of- peals her conviction under shoplifting, Act for Against Property fenses of her trial denial challenging the court’s was based dismiss. The motion motion to prosecutor alleged failure of on the the defend- agreement whereby abide an dismissed would be shoplifting charge ant’s the trial of testimony exchange for her case. an unrelated affirm. We
PACTS to the State facts most favorable are: grand testified before
Bullock against one arson-felony murder case Following that (Fowler). Fowler Lonnie oral into an testimony, she entered whereby the prosecutor, with the ment pend- another charge as well as shoplifting would, dismissed charge against her ing She at Fowler’s trial.1 if she testified went to case and in the Fowler subpoenaed “cooperate.' promise 1. In her brief defendant characterizes this DECISION testify; court in order to how- several times ever, the Fowler case was contin- each time did not err in court CONCLUSION —The ued, to the stand. and she was never called motion, none of de- denying the because Eventually the dismissed the Fowler violated and fendant’s case. an enforceable agreement was not *3 tract.2 shop-
Subsequently, Bullock was tried for cases, dismiss, two San lifting. she con- Bullock casts her In her motion to lot 257, 92 (1971), v. 404 U.S. tobello New York by tended the should be bound the State 495, 427, and Dube v. State S.Ct. 30 L.Ed.2d agreement, pre- inasmuch as the State had 398, 7. Both (1971), 257 Ind. 275 N.E.2d completing part vented her from her of the concerning plea agreements involve broken bargain. court, conducting The after a In each the defendant bargains.3 case hearing, judge denied the motion. The trial upon prosecu pleaded guilty in reliance ordered that evidence obtained as a promise concerning a recommended tor’s agreement sup- result of the should sentence; up in the failed to live each State pressed. trial, After a Bullock was convict- the Court bargain; in each to its side of the ed. of constitutional held there was a violation rights. ISSUE alien to Bullock’s These cases are The presented sole issue here is whether agreement here does situation. That the denying
the trial court motion erred the plea bargain equivalent not the of a rise to dismiss, precisely, or more is the State A entering guilty plain.4 defendant by agreement? bound to abide the rights, including the plea forfeits certain witnesses, trial,
right
jury
to a
to confront
defense,
re
present
his
witnesses in
PARTIES’ CONTENTIONS
silent,
proof
by
convicted
main
and to be
first,
argument
parts:
Bullock’s
is in two
Santobello, 92
beyond a
doubt.
reasonable
integrity
legal process requires
of the
dis-
J., concurring).
(Douglas,
S.Ct. at 500
missal; second,
agreement
the
was a
obtained,
Thus,
it is
plea
unfairly
if the
tract which should be enforced.
voluntary
constitutes a violation
not
and so
rights.
id. at 499.
of a defendant’s
See
The
responds
State
that
the trial court
by
was not bound
the
rights,5
under
none of these
Bullock forfeited
either
theory.
argue
and she does not
that
Am.Jur.2d,
Thus,
Although
reject
Criminal Law
146-148.
§§
we
the notion that a case
properly
such as this is
resolved
contract
been accorded immu
while Bullock could have
law,
argument only
expose
we
prosecution
address the
nity
Fowler case
from
the
frailty.
(where
suggests
suspect) in
she was a
immunity
exchange
testimony,
for
such
her
holding
3. The Dube
has
been extended
never
prosecution
not
to bar
in this
could
extend
beyond
See,
plea bargain.
the context
e.
of a
proceeding.
unrelated
Indiana courts have
g.,
Ind.,
(1978),
McMahan v. State
382 N.E.2d
immunity
narrowly.
statutes
See e.
construed
154; Kelly
414,
(1972),
v. State
259
287
Ind.
428,
g.,
(1972),
281
Riner v. State
258 Ind.
N.E.2d 872.
815;
(1929),
92 Ind.
N.E.2d
Michaelree v.
any legally
4. Nor did the
constitute
App.
Notwithstanding this Bullock legal system the integrity insists that Affirmed. requires question a is dismissal here. Such dimension, although not of constitutional it con- ROBERTSON, designation), (by J. may by legislative be covered enactment. curs. (1973), Cf. United v. States Russell 411 U.S. 423, 433, 93 1637, 1643, 366, 36 L.Ed.2d S.Ct. J., opinion. SHIELDS, with dissents 374 (entrapment). The decision whether to prosecute is lodged the executive branch SHIELDS, Judge, dissenting. of government. If been no have I dissent. violated, a and in the absence of directive to abide my opinion the State bound In Court, legislature the Supreme or our agreement by its with Bullock. we cannot “chancellor’s foot” exercise a veto over the executive branch. the State agreement between While the bargain in the plea Bullock was not a Moreover, Bullock’s contract claim guilty plead to to required it Bullock sense something by appearing she forfeited never- charges, it was pending criminal in court for purpose testifying the Bullock agreement for which an theless specious. right had no to refuse the She right gave She waived consideration. subpoena. See Ind. Code 35-1-31-1. § Procedure, Criminal Rules of under Indiana falsely right testify had to if Nor she Bull- 4(c), year.1 within a to trial stand, Rule to called the see United States v. occa- on several 1823, ock’s trial was continued 174, Wong (1977), 52 431 U.S. 97 S.Ct. “ want to . . we didn’t 231, sions because grand previous jury L.Ed.2d and her had been a go case until she to trial on her impeach to testimony could have been used (Fowler) in that case.” right as to witness testify her. If she had a not to addition, apparently agreed issue, to 1. Bullock In We therefore the decline to address right dissent, inas- sponte concerning not to incriminate herself waive her raised sua the Fowler, suspect, in the Supreme much as she was a effectiveness of counsel. Our Court arson-felony is un- heavy record case. The has made clear the burden which rests murder right raising g., this appellant had in fact waived e. clear whether she an such claim. See 684, grand by testifying on the Fowl- (1977), the before State N.E.2d Grimes v. 266 Ind. 366 639; 29, agreement Conley State. (1972), with the er matter under the 259 Ind. v. N.E.2d 803. addition, agreement may In defense despite counsel’s effective- indeed arise was seriously ness undercut the State’s encompass not fact does recognized conduct. Cooper As v. United guilty plea.
States, (1979) Cir., 4th pp. 594 F.2d to the content of dispute There is as no 18-19. insofar it is described in as begin by We noting that two distinct opinion. majority reasonable right sources of constitutional are in- fully interpretation agreed to co- Bullock here; volved obviously directly, most operate prosecution with the State in right to fundamental em- fairness Thus, Undisputedly, Fowler. did so. she braced within process substantive due at time fully performed she while the same guarantees; directly less perhaps, but exposed the State no risk. That was importantly, nonetheless Sixth testify at Fowler’s Bullock was unable Amendment to effective assistance State, Bull- was the “fault” of the not trial general of counsel. The relevance of record, ock. For in this reasons evident plain require former is too discussion. apparently felt testimo- .Bullock’s That of the latter readily can be stated. ny prosecu- was so Fowler essential to the prosecutors Because required they unwilling rely tion on Bullock plea negotiations duct through defense doing already legally “what bound she counsel, government’s positions and do,” majority it is described communications in discussions are State, Rather, opinion. rashly albeit necessarily mediated to the defendant *5 unwise, by sought cooperation to assure her ** * through his counsel. For this making doing, By a deal. so the State reason, integrity the credit and now, must my opinion, sealed its fate and government of the but those of his coun- agreement. agreement, fulfill its When sel are involved in a percep- defendant’s * * * specific, unambiguous, and not unreason- tion of process. To the ex- face, and able its made a defendant tent government attempts State, un- is enforceable through change defendant’s to counsel or extenuating affecting less circumstances positions communicated, retract earlier propriety of the defendant’s confidence his counsel’s ca- reasonably unknown or not discovered pability professional responsibility, and as supervene known or become government’s well as in the reliability, unless the defendant breaches the jeopardized necessarily and the effec- ment. tiveness easily of counsel’s assistance compromised. very least, At the these Therefore, regret- obviously, perhaps but Sixth Amendment considerations add opinion I fully, hold the there is no effective heightened degree obligation of remedy require performance specific but to
government’s duty nego- fundamental agreement. I would reverse scrupulous tiate seeking fairness in court remand with instructions the trial guilty pleas. (Our emphasis.) discharge. to order Bullock’s While Cooper, supra, dealt with the
government’s attempted withdrawal of an plea bargain,
offered the rationale behind enforceability of a bargain ap-
propriate enforceability bar-
gain offered a defendant
exchange consideration from or det-
riment the defendant. The rationale protect
our need to credibility in-
tegrity of the justice system criminal in all component Therefore, parts. Coo-
per, supra, I find enforcement