Childress v. State

large of drugs of cocaine because of amount of Nevada to sale in the State guilty (LSD) carrying recovered from defendant’s residence and a controlled substance record). weapon. Appellant’s App. lengthy a concealed criminal defendant’s again months later he was 69. Several judgment affirm of the trial We sepa- of LSD for charged with sale court. were dis- charges rate transaction plea agreement. Id. pursuant to missed SHEPARD, C.J., DICKSON, pleaded 1988 Weiss at 69-70. March BOEHM, JJ., concur. SULLIVAN and possession in of Arizona to guilty the State (methamphetamine). dangerous drugs pleaded In August Id. at 70. Weiss possession

guilty the State Nevada (methamphet- substance

of a controlled

amine) eight intent to sell. And with in the later was convicted

months Weiss posses- for another offense of same state CHILDRESS, Roger Appellant D. (metham- substance sion of a controlled (Defendant below), intent to sell. Id. Weiss phetamine) with parole for that offense was released v. than January 2002. Less Indiana, Appellee STATE of 8, 2003, later, was September on Weiss below). (Plaintiff giving rise to this arrested for the offenses Further, at 70-71. while on action. Id. Carroll, Gary Appellant L. case, Weiss was arrested

bond (Defendant below), County dealing in Allen charged Id. at 71.3 The rec- methamphetamine. Indiana, a serial Appellee makes clear that Weiss is

ord below). (Plaintiff finan- primary interest criminal whose His through drugs. the sale of gain cial 61S01-0510-CR-484, Nos. justice with the criminal repeated contacts 61S04-0510-CR-485. impact persuading system have had no him to reform. We conclude Weiss’ Indiana. Supreme inappropriate. forty-year sentence is 14, 2006. June Vazquez See (Ind.Ct.App.2005) (rejecting inappro- affirming claim and defendant’s priateness

fifty-year conspiracy sentence for to com- dealing

mit in cocaine because of defen- drug operation and fre- large-scale

dant’s justice with the criminal

quent contacts

system); Kendall v. (rejecting inap- (Ind.Ct.App.2005)

452-53 affirming defen- claim and

propriateness dealing sentence for forty-year

dant’s contemplated under which clear disposition of this offense is not 3. The ten-year sentence. Tr. would receive a at the Weiss from the record. However at 14. hearing, for Weiss noted that a counsel ever, argue sides shall free to both be what, any, if of the same should be execut- Appellant’s App. ed.” at 25. The trial accepted Chil- guilty pursuant to pleaded dress its terms. sentencing hearing At the the trial court (6) years, a of all imposed sentence six of to which were be executed. appealed arguing among

Childress other things that the sentence the trial court (i) imposed inappropriate pro- was because (ii) option, bation was Childress is (iii) for good probation, candidate report probation pre-sentence its de- McMath, Indianapolis, Patricia Caress portion recommended that a of partment IN, Attorney Appellants. for suspended. sentence be Br. of Childress’ Appellant unpublished at 5. In an memo- Sutton, County Ann M. Marion Public Appeals randum decision the Court of de- Schumm, Agency, Joel M. Defender clared, “If ... signs plea a defendant Law, University of India- Indiana School agreement agrees specific which he to IN, Attorneys for Amicus Curiae napolis, years sentencing range to a term of County Agency. Marion Public Defender statute, than that he other authorized Carter, Attorney of General Steve to claim will not be able thereafter Stein, Indiana, Kathryn Deputy At- Jodi imposed sentence consistent with the General, IN, torney Indianapolis, Attor- inappropriate. By voluntari- neys Appellee. agree- ly entering type into this of necessarily agrees that ment defendant Indiana Petition To Transfer from the On appropriate, and we cannot the sentence is 61A01-0409- Nos. say inappropriate.... that the sentence is 61A04-0409-CR-483 CR-391 and voluntarily entered into Because Childress RUCKER, Justice. cannot with the In these two cases we address whether a specific term of now claim may challenge defendant imprisonment original agreement in the un- appropriateness imposed of a sentence No. inappropriate.” Childress plea agreement. of a der the terms 61A04-0409-CR-391, 3-4, slip at op. History (Ind.Ct.App. Apr. Facts and Procedural N.E.2d 165 (citations omitted). Nonetheless the court Roger charged D. was with Childress concluded addressed Childress’ claim and felony offenses and multiple drug related light appropriate sentence was his non-drug one related misdemeanor. Un- of the offense and character of the nature plea agreement, der the terms of a written of the offender. agreed plead guilty posses- Childress B numbers methamphetamine separate as a Class Under four cause sion multiple felony, agreed Gary charged and the to dismiss the L. State Carroll felony offenses. remaining charges. drug weapon The related provided, According “Defendant will be sen- to the terms of a written also guilty agreement, agreed plead Department tenced to the Indiana Cor- Carroll (6) as a Class years, dealing methamphetamine period for a of six how- rections felony, carrying B handgun appeal challenge appropriateness without a of a felony, resisting license as a Class C under the of a terms felony. plea agreement. law as a D enforcement Class The agreed remaining to dismiss the Background charges. provid- The also provides, ed, “The State of Indiana and the Defen- “The Court revise a author agree dant that both sides are free to if, ized statute after due consideration argue the Defendant’s sentence with the decision, trial the Court finds maximum possible being twelve that the sentence is (12) years Appellant’s App. executed.” of the nature of the offense and the char court accepted agree- acter of the In a offender.” series of pleaded guilty pursuant ment and Carroll opinions Appeals recent the Court of sentencing hearing to its terms. At the addressed whether and under what cir the trial court imposed presumptive may cumstances a defendant raise a Rule ten-year felony sentence for the B Class 7(B) challenge by to a sentence imposed conviction, presumptive four-year sen- court guilty plea. as a result of a conviction, felony tence for the Class C origin opinions The of the court’s Mann is presumptive year and the one and one-half State, (Ind.Ct.App. N.E.2d 1025 D felony sentence for the Class conviction. 2001), trans. denied. In that case Warlito Ordering B the Class C and felonies to run G. Mann charged was with murder and concurrently and D felony the Class to run plea agreement calling entered a for volun sentences, consecutively to the other tary manslaughter. agreement pro trial court imposed a executed sen- total vided that the trial court impose could a years. tence of and eleven one-half thirty years sentence of not less than appealed arguing among

Carroll other no fifty years. more than After a hearing things that the trial ignored signifi court imposed fifty years. Mann cant mitigating pre factors and thus the appealed challenging his sentence. In a sumptive sentences inappropriate. opinion were Appeals divided the Court of re Rejecting Ap Carroll’s claim the Court of manded the cause with instructions to the peals unpublished declared impose forty-five memo trial court to year sen decision, randum observed, “Carroll entered into a tence. In a footnote the court “[bjecause plea agreement agreed wherein he to a we remand for correction of sentencing range range sentence, other than the au Mann’s we do not address his statute, thorized and he is not now able implicit premise that a sentence which a to claim that a consis agreed plea bargain defendant has can agreement tent with this inappropriate.” ‘manifestly is be unreasonable.’ Mann en 61A04-0409-CR-483, Carroll v. No. tered into a that provided slip op. at (Ind.Ct.App. 828 N.E.2d 459 impose the trial court could a sentence 2005) (citations omitted). 4,May thirty fifty years. between Mann’s fifty years, although sentence of at the Having previously granted transfer upper end of his agreement, was still with both cases and consolidating pur- them for in the agreement.” Id. at 1026n. I.1 poses argument resolution, of oral we now address the sole presented issue for Mann was approval next cited with our review: whether defendant v.Gist 804 N.E.2d 1204 (Ind.Ct.App. appeal, Ap- 1. At the time of except Mann's statute where such sentence is mani- 17(B) pellate provided, reviewing festly Rule “The unreasonable in of the nature of court will not revise a sentence authorized the offense and the character of the offender.” In 2004), sought. that case accordance with a not trans. —an charged agreement voluntarily into, entered Christopher was with rob- Gist felony conspiracy say we cannot that the bery inap- as a B Class B felony. propriate. holding He robbery commit as Class This consistent conspira- with Mann v. where said entered we charge. agree- the terms of the a sentence that fell within the cy Under sentenc- range provided limit agreed ing its sentenc- for in the agree- ment ment was ing presumptive manifestly to the recommendation unreasonable years. though of ten The trial court sen- even term the defendant was sen- and he appealed. tenced Gist to ten upper tenced end of that range. Addressing argument the ten- Gist’s Gist, 804 at 1206-07.2 year sentence was within the Analysis meaning of Indiana begin declared: with Tumulty Court of We our discussion (Ind.1996). N.E.2d 394 By into this with the entering charged that case the was defendant necessarily agreed ten- Gist conduct, criminal attempted deviate year appropriate. If Gist being counts of battery, and of habitual ten-year thought sentence was offender. of an agree- Without the benefit presumably he inappropriate, then ment, trial, and in the the middle of defen- plea would not entered into the have pleaded guilty charged leaving dant as place in the first and would “sentencing up at trial to the court.” Id. have taken his chances without Where, agreement. The court the defendant a plea the benefit of a sentenced here, twenty-year attempted is for his erimi- as a defendant sentenced term cases); provided underly pending the this 2. Gist have before Court in two Ea and Mann State, 1287, ing Appeals opin basis Court of ton v. 825 N.E.2d 1290 n. 3 for several See, (the sought e.g., (Ind.Ct.App.2005), addressing ions issue. v. trans. not au Bennett State, 335, clarifying (Ind.Ct.App.2004), 813 338 thor of Gist that the case "does not N.E.2d (”[W]hen anytime proposition sought trans. not a defendant is sen stand the a de plea plea agreement, voluntarily agree a into a tenced in fendant enters accordance ment, agreed that his thereafter barred implicitly he has sentence is defendant is State, challenging inappropriate”); appropriate.”); v. as Wilkie 813 N.E.2d his sentence 420, (Ind.Ct. 794, State, (tak Reyes 426 (Ind.Ct.App.2004), 804 trans. v. 828 N.E.2d denied Gist, ("[W]hen language” App.2005), granted a ing trans. defen issue with the "broad result); State, plea provides specific sentencing agreeing Mast dant's for a but with the v. 429, range, implicit (Ind.Ct.App.2005), the defendant’s 824 N.E.2d 431 trans. sought (agreeing logic a sentence within that not with the of Gist and is his concession that State, range v. plea agreement explicitly per appropriate.”); is Gornick 832 Mann where a 1031, (Ind.Ct.App.2005), a 1035 trans. mits trial court to within sen plea approval tencing agree (citing denied and Mann with cap, but not where Gist State, Young clarifying emphasize that "open”); ment is v. "we waiver 826 N.E.2d 665, sentencing (Ind.Ct.App.2005) (citing standard does 670 Gist and apply ‘open’ acknowledging the not when a Wilkie and "difference of statutory only provides range ap opinion as to whether defen on this court a offense”); plicable Nguyen dant who with a the defendant’s enters into 153, challenge (Ind.Ct.App. may appro v. 837 N.E.2d cap later 2005), ("Because sought priateness trans. entered that does not exceed open cap”), grounds Young plea agreement that was not ... into a vacated on other 1015, (Ind. Nguyen has waived Rule review of both 1016 n. 1 834 N.E.2d ’imposed’ and his ‘executed’ sen (declining inappropriate address the his tence.”). presently ness claim because the issue Where, nal deviate conduct in Tumulty, conviction. This sen- as a defen by twenty tence was enhanced pleads guilty dant to what has been char finding. virtue of the habitual offender “open plea”3 acterized as an the freedom battery For the counts the defendant and latitude of trial impose court to four-year received concurrent sentences on particular readily sentence is apparent. count, consecutively each to be served to See, e.g., Gutermuth v. 817 N.E.2d the criminal deviate conduct sentence. (Ind.2004) (an 233, open plea which forty-four The effective sentence was thus the trial court consecutive sen years. weighing aggravating tences after On challenged factors). defendant the mitigating Under such circum acceptance plea of his to the stances the trial court’s discretion is limit finding. habitual offender The Court of only by ed the Constitution and relevant Appeals held that a defendant should be 38—1—7.1(d); § statutes. Ind.Code 35— permitted appeal guilty plea whenever Harrison v. plea adequate the record of the to re (Ind.1998) (“Within applicable statuto being appealed. solve the issues This ry and parameters, constitutional sentenc granted transfer and reiterated the ing decisions rest within the sound discre that “a principle upon conviction based court_”). tion of the trial Although guilty challenged by not be mo perhaps less apparent, even where a tion to correct errors and appeal.” direct agreement sets forth a sentencing cap or a Id. at (quoting Weyls 266 Ind. sentencing range, the court still must ex (1977)). ercise some discretion in determining the Court noted consequence that one is, sentence it impose. will That pleading guilty is the restriction of the whether, court must nonetheless decide in ability challenge to the conviction on direct the case of a sentencing cap, impose to the appeal. The proceeded Court then to ad maximum by cap sentence allowed the dress, ultimately reject, the defen impose Likewise, to a lesser sentence. in dant’s claim that his sentence was mani the case of a sentencing range the trial festly unreasonable under court must decide whether to impose a 17(B) and that the trial court failed to high sentence on the or low end of the articulate reasons to by sufficient enhance range. In either event the trial court is twenty years his for attempted sentence exercising discretion in imposing a sen criminal deviate In doing conduct. so the See, e.g., tence. Pannarale v. 638 held, “By prohibition contrast to the 1247, (Ind.1994) N.E.2d (noting 1248 that on appealing the trial acceptance of because the provided for a plea, a defendant is entitled to contest “up sentence years” ten the court merits of a trial court’s sentencing “retained a discretion where considerable amount of the court has discre exercised discretion, sentencing it tion in determining specific as did here.” Tu the number of multy, 666 N.E.2d at 396. to be imposed”).4 As a consequence, 230, 3. instances, Sea Collins v. 817 years. 231 term of In such if the trial (Ind.2004) (“A plea agreement where the is- accepts parties' agreement, court it has no sue of is left to the trial court's impose anything discretion to other than the discretion is often 'open referred to as an precise upon they agreed. which ”). plea.' 800, (Ind. Badger See v. 637 N.E.2d 802 1994) (“[I]f accepts agreement, the court 4. distinguished This is to be from those agree- cases it becomes bound the terms of the ment.”); in which a specific 437, calls for a Blackburn v. 493 N.E.2d (Ind. 852, v. entitled Serino the defendant “is appeal on Act, 1907, (quoting Appeal Criminal of a court’s sen- the merits contest 4(3)). 7, 23, § 7 Edw. c. Tumulty, tencing discretion.” argument of the at 396. But what expression this rather Despite expansive agreements the defen- into such entering power of of the to review and scope 4, challenging on dant is barred revise sentences under Section considerably more pursued of his sentence? See Court has the appropriateness Or, January an path. al- Before as the has modest Mann. Gist and a trial court needed to find that us, appellate have the leged in the cases before “manifestly unreason- court’s sentence was “acquiesced” to their sentences defendants it could the sentence. able” before revise Br. complain? they such that cannot now so that it ran the high “This barrier was (Childress State); Br. at 3 Appellee of on constitutional impinging risk of another State). (Carroll For at 5 Appellee the Su- contained Article right em- explore now we do not reasons we all preme ‘provide rules shall Court’s position. brace this ” right appeal.’ an absolute to one cases provides, Indiana Constitution Serino, Ind. (quoting N.E.2d at have, in all Court shall Supreme “[t]he Const, 6). result, VII, § art. effective As cases, to ... appeals power criminal 1, 2003, amended January rule was imposed.” and revise review appellate to revise authorize Const, VII, Likewise, § art. 4. Ind. if it finds consideration “after due Ap- authorizes the Court Constitution the sen- trial court’s decision” that of the to the extent peals to review sentences of the na- “inappropriate tence Ind. provided by Supreme Court rules. of the the offense and the character ture of Const, VII, scope § The origin art. 7(B). R. formula- App. This offender.” to review and sen- power revise the role upon the central focus placed tion Section is based tences contained the same time judge, of the trial while at power “the use which that efficacious courts the reserving appellate by the put Court of Criminal been in a sentencing decisions chance to review England.” Report [sic] local clamor. climate more distant from (1967). addition, Study Serino, Commission 140 Judicial N.E.2d at 856-57. a shift language represented in English establishing change statute this revising sentences prohibition “a set from of Criminal forth that met were certain narrow conditions unless as power to review revise sentences sentences authorization to revise to an follows: are satis- broad when certain conditions against the Court On 635, 639 Neale v. 826 N.E.2d fied.” shall, they if think that Appeal Criminal (Ind.2005). should have been different sentence at the passed, quash passed the sentence again, either Under formulation — trial, war- pass such other sentence permis light in of the broad modest rather (whether by in the verdict ranted law language of authority by afforded sive severe) less in substitution more or as merely 4—the Rule serves Section they to have ought through implement as think which therefore we vehicle authority. Indeed grant in case shall any other passed, been constitutional metic- trial court has been where the appeal. even dismiss the of that bound the terms (Ind. (“Although agreement, it is party to the 439 accepts agreement.”). agreement, the court once 1080 following

ulous in the proper procedure in the court nonetheless addressed the merits sentence, imposing a “we still exercise of Childress’ claim and concluded that his authority our under sentence was appropriate of the revise sentence that we inap conclude is nature of the offense and the character of propriate in light of the nature of the Except the offender. provid- as otherwise ed, offense and the character of the offender.” summarily we now affirm the Court of (Ind.Ct. 713, Hope v. Appeals’ decision. added). App.2005) (emphasis See also Bu Carroll, As for the trial court (Ind. 967, chanan v. imposed presumptive sentence on the 2002) (“Although a trial court may have three pleaded guilty. offenses which he acted within its lawful discretion deter In doing so the trial court gave no reason sentence, mining § 4 Article imposed, for the sentence mentioning nei Indiana Constitution indepen authorizes ther aggravating nor mitigating factors.5 dent appellate review and revision of a On review Carroll challenged his sentence court.”) (em imposed by 7(B). as under Rule Howev added). phasis In essence rather than a er the pages devoted argument to this procedural barrier over which a defendant upon focus not the “nature of the offense heard, must climb order to be the Rule and the character of the offender” but articulates a designed standard of review rather upon alleged trial court error in guidance as appellate for courts. failing to consider purported mitigating Of course a defendant per must factors. See Br. of Appellant at 4-5. Be appellate suade the court that his or her cause the trial court imposed the statutory sentence has met this inappropriateness sentence, presumptive required it was not standard of say But to review. to list aggravating mitigating or factors. acquiesced defendant has in his or her A trial court must set reasoning forth its sentence or implicitly agreed that the only deviating when statutory sentence is appropriate undermines our presumptive sentence. Jones v.

view the scope authority set forth in (Ind.1998) (Because N.E.2d VII, Article Section of the Indiana Con presumptive term stitution. We thus disapprove language for murder it required “was not to state a Gist, Mann, progeny provid and their basis imposing sentence.”); see ing otherwise. n. 2. See also Lander v. 762 (Ind.2002) We (‘When now turn to the cases before us. the trial court im Although the Court of Appeals poses declared a sentence other than presump that because voluntarily sentence, Childress entered imposes tive consecutive sen into his he could not com- tences where not required to do so plain that his statute,6 sentence was inappropriate, this Court will examine the record 5. Subsequent to the date gating 71-2005, Carroll was sen- circumstances.” Pub.L. No. Legislature tenced the (codified amended Indiana's § 35-38-1-7.1(d) (2005)). § at I.C. sentencing provide “advisory statutes to for sentences” “presumptive rather than sen- Here, the trial court also ordered that the 71-2005, (codi- tences.” See Pub.L. § No. imposed sentence resisting for law enforce- (2005)). § fied at I.C. 35-50-2-1.3 In addi- felony ment consecutively as Class D run to tion, permit the amendments a trial court to the sentences on the other two of- impose any sentence that is authorized required fenses. The trial court was to do so permissible statute and under the Indiana because Carroll was on bond for other of- “regardless Constitution presence or 50—1—2(d). fenses at § the time. See I.C. 35— absence aggravating circumstances or miti- nor it neces- imposed,” its rea- the sentence does explained the court insure it im- selecting sentence for sarily preclude the a claim sen- appellate sons for any address In event we Car- posed.”). tence review under Regarding claim. inappropriateness 7(B). roll’s offense, presumptive the nature however, empha- I separately, write sentence) (or is advisory now the sentence my today that our does size view decision has se- starting point Legislature acceptance not hold that a defendant’s of a appropriate as an sentence lected wholly signifi- without Ruiz v. crime committed. altogether cance or that it must be disre- Lander, (Ind.2004); garded. A defendant’s conscious choice to presumptive 1214-15. N.E.2d at Here plea that limits the trial enter precisely the sentence the to a less than court’s discretion imposed. to the character of trial court As usually maximum be statutory should offender, history Carroll has a criminal strong and evi- persuasive understood as conviction and felony that includes theft ap- dence of sentence reasonableness convictions, misdemeanor

four my view, today’s opin- propriateness. drug Appellant’s which were related. permits considering ion courts future Also, at 91. Carroll was bond App. fol- appellate claims for sentence review law enforcement at the time he resisting offenses to which re- lowing agreements grant committed the additional such ultimately pleaded guilty. We are not rare, only exceptional in the most lief that the of the offense or persuaded nature cases. justifies reducing of the offender

character eleven and presumptive

further Carroll’s year

one half sentence.

Conclusion cases us we affirm the

In both before of the trial court.

judgment C.J., REYES, SHEPARD, Jerry Appellant and SULLIVAN (Plaintiff BOEHM, JJ., below), concur. J.,

DICKSON, separate with concurs opinion. Indiana, Appellee STATE of

DICKSON, Justice, concurring. (Defendant below). today, I decision agree Court’s No. 49S04-0510-CR-475. defendant, by claim rejecting the providing into a Indiana. entering Supreme limited length of that the 14, 2006. June sentencing range, or cap maximum automatically acquiesced in the waived of a that com-

reasonableness Such a

plies agreement. an absolute barrier authority its

to this Court’s exercise of

granted by Article Section “review and revise Constitution to

Case Details

Case Name: Childress v. State

Court Name: Indiana Supreme Court

Date Published: Jun 14, 2006

Citation: 848 N.E.2d 1073

Docket Number: 61S01-0510-CR-484 & 61S04-0510-CR-485

Court Abbreviation: Ind.