*1 244 91-year Kolupa
broke into the home
old Ladislas
September 7,
Appellant physically
abused
Kolupa, “grabbed
hair”,
Mr.
him
[him]
struck
dentures,
force
sufficient
break his
and removed valu
person. Appellant
ables
ransacked
Kolupa’s
from
Mr.
home,
doing
by police
in the
and was observed
act
so
officers
had arrived on
scene.
premises
who
entered the
officers
appellant,
captured
who was
Kolupa.
identified
Mr.
Kolupa’s
person
taken from Mr.
home
Valuables
were
pockets.
appellant’s
from
recovered
appellant’s
is sufficient
sustain
Such evidence
conviction
McKinley
robbery.
(1972),
348,
v. State
258
Ind.
281 N.E.
evidence is also
2d 91.
sufficient
the jury
This
allow
to con-
appellant
Kolupa’s
clude
entered Mr.
home with the
is, therefore,
intent
to commit
sufficient to
support appellant’s
entering
conviction
intent
felony.
Farno
commit a
Ind.App.
v. State
Judgment affirmed. J.,
Staton,
Garrard,
P. J.
concur.
Reported at
[No. *2 Indianapolis, appellant. for Levy, of William Colker, Sendak, Attorney General, Robert L. F. Theodore appellee. General, Attorney for Assistant petition post a conviction J. Emerson filed Garrard, alleging the refusal of the trial court error in relief reversible guilty plea which had been permit him to withdraw a May appeals. 16,1974. Relief was Emerson denied and entered plea of reduced entered a When providing robbery, 1971, (c) for the charge of IC 35-4.1-1-6 judgment sentence, pleas and was of such after withdrawal statute, below, provides out which is set The in effect. plea may sentence, not be withdrawn judgment
after and Withdrawal, however, right. permitted of shall as a matter plea the neces of is if establishes withdrawal the accused 1 injustice. sary to correct manifest upon plea guilty, “(c) judgment the con- After and sentence right plea. person withdraw such Pro- not as matter victed however, person the shall vided, vacate person proves motion of the convicted judgment allow withdrawal whenever the convicted and necessary correct a in- is manifest that withdrawal judgment plea justice. vacate and withdraw made A motion to by petition pursuant for court as a shall be treated subsection post-conviction pursuant post-conviction to the rules relief remedies provisions Supreme Court of such rules shall and Indiana expressly procedure upon petition except govern otherwise such plea purposes subsection, provided of herein. of this withdrawal of For necessary injustice manifest guilty is to correct a whenever: person (1) denied the effective assistance the convicted was counsel; by person; (2) plea plea not or ratified the convicted the the was entered made; knowingly voluntarily (3) (4) attorney by prosecuting the terms of a failed abide agreement; ground only by asserted Emerson to secure vacation knowingly voluntarily that the is thought entered because he he would be sentenced under the provisions sentencing act, 1971, of the minors IC 35-8-3-1. (1971),
In Dube 398, State 257 Ind. 7, N.E.2d again 97, 354, Watson v. State 261 Ind. 300 N.E. Supreme recognized
our Court the failure of adequately the trial court advise an at accused arraignment regarding consequences bargain deprive knowing voluntary necessary to character sustain it. decisions, expressly recognize
Both however, judge not, be, and should not bound recommendations Furthermore, enforcement law officers. is the statutory policy provide of our state to felony only pre-sentence investigation cases after a has been conducted and information thus secured has been reviewed See, *3 (Bums the court. IC 35-8-1A-9 Ed.) Code That might report disclose factors thitherto unknown all but might great significance the accused which and bear disposition proper of the case. Thus, question presented by the Emerson’s appeal the surrounding whether facts and circumstances plea his knowingly
demonstrate that it was not and volun- tarily entered into as so to have obligatory made it for the trial court to plea have vacated the to correct injustice.3 considering manifest In question, it must be (5) plea judgment the and of conviction thereon are void or void- any able for other reason. judgment motion to The vacate the and withdraw the need not allege, of "the crime proven, person and need be the convicted is innocent charged or that he has a valid defense.” Thus, recognition in view plea bargains of the formal now by statute, (Acts 1975) IC 35-5-6-2 provides securing afforded investigation pre-sentence prosecutor the the existence when the advises the court of recommendation. 3. The motion was not made until after pro- sentence had been nounced. Where the motion is sentencing, made before may the court proof and now the burden that Emerson had in mind borne negative judg- from a appealing of one the shoes in stands ment. arraigned his and accused was Dube and Watson
In both any of the exist- accepted guilty plea disclosure without was Furthermore, it was bargain contents. or its ence of a tendered, be- the accused undisputed that when was bargain be honored. Under good faith that lieved ingredient necessary logically facts, held that a the court these consequences understanding plea, voluntariness, lacking. was substantially from those
The us differ now before facts open executed and Dube In court Emerson Watson. and previ tendered written motion to withdraw plea of enter a ously entered guilty. the existence That motion disclosed attorney agreed prosecuting plea bargain had and that the statute. under the minors recommend following: also contained the motion though “(7) prosecuting understand even I may agreed attorney a recommendation to make agreement my party to that sentence the is not Court recommendation; required is not follow that greater than, imposed by sentence be Court the the as, same or than sentence recommended less my prosecutor. plead I understand also if GUILTY greater as, or less punishment if than than same GUILTY, pleaded I had stood trial NOT had Jury.” convicted Court judge tendered, motion examined When the regarding understanding of his constitutional against charges rights explained him. The bar- judge explained gain recommendation disclosed and *4 robbery statutory penalty for and the choice of both any just fair and reliance allow withdrawal state reason unless substantially prejudiced by upon plea. has IC (b). 1971, 35-4.1-1-6 penalties might imposed under the minors statute. He then ascertained twenty- that Emerson was under one previously and had not been felony, convicted eligible thus was to be following sentenced minor. colloquy then accurred:
“Q. you Then eligible, guaran- would be but that does not you tee that bewill statute, sentenced under the minor you do understand that? Yes,
A. sir. Q. you If were statute, sentenced under the minor I could give you up year years, or one ten but this [sic] my my pre- decision and I’ll base decision report, upon anything sentence you me, tell want your attorney me, anybody tell wants to or that wants sentencing. tell to whether me at the time of I’ll Then decide give you ten, day year, I one one twenty-five or ten years, you do ? understand Yes, sir. A.
Q. you questions anything here any Do have about we you doing today? discussed or what No, A. sir.
Q. ? Is this want to do what Yes,
A. sir.” say all men cannot reasonable must On record we voluntarily not and know- conclude that was Emerson’s might ingly because was unaware court entered impose not sentence the minors statute. Therefore, the decision must be affirmed.
Hoffman, P.J., J., concurs; Staton, opinion. dissents with
Dissenting Opinion Staton, dissent these reasons: P.J. voluntary.
I. not Emerson’s was He did of the relevant have sufficient awareness circumstances likely consequences guilty plea. Brady See 742, 90 United 397 U.S. States S.Ct. per- He that the trial aware
L.Ed. 2d sonally too serious for felt that the crime
249 likely, statute the minor and that consequence guilty his was that the trial accept would not the State’s for sentenc- recommendation ing minor under the statute. Immediately sentencing,
II. after a motion to withdraw
guilty by Emerson’s defense counsel. denying withdraw, When the motion to the trial court’s legal sole concern was justification at its directed in originally accepting of guilty from Emerson. by This was abuse of an discretion the trial court. It should have advised Emerson consider sentencing concession, sentencing under the minor statute, as opportunity recommended State. An given should to Emerson to reaffirm either guilty plea robbery sentenced under statute or guilty. withdraw ignored judicial III. The trial court has policy of the Supreme Indiana Court which was first announced for the Court Dube (1971), Justice Hunter in State 257 398, 407, 7, 11, Ind. 275 N.E.2d and reaffirmed Chief in Justice 99, Givan Watson v. State Ind. 261 354; 300 N.E.2d 355: important “It segments society for all of our to be- systems
lieve that our court dispense justice. This in- cludes the criminals themselves well as the law abiding citizens, have especially those criminals who cooperated fully investigations. police .”.. judgment would reverse with instructions vacate and the sentence. I court to would further instruct grant guilty. the motion to withdraw the
I. Voluntary eighteen years dropped old. He had Cornelius Emerson was I.Q. high completing only after six credits. His out school May 16, average. guilty pleaded was below Before he by the that he be State a recommendation cooperated statute, Emerson minor had under the sentenced accomplice, Carpenter, escaped fully police. had His during robbery. Carpenter captured police from the concerning April, In addition to his statement Car- by clearing up involvement, police penter’s aided robbery. another counsel defense entered a written
When Emerson’s following colloquy plea, occurred:1
“QUESTIONS BY THE COURT: “Q. Emerson, you did read this written notice before Mr. today?
you signed it and filed it Yes, “A. sir. him, Sobel: It was
“Mr. to Your Honor. read “Court: It read to him? Yes,
“Mr. Sobel: Sir. By you?
“Court: non-compliance part of this dissent could be directed to the of 1. A (Burns 35-4.1-1-3(c) Ed.); court with IC Code how- principles ever, is based more this dissent fundamental of law compliance the more technical with the statute. statute rather than provides: accept guilty not court shall of from with- “The the defendant addressing the out first defendant and determining charge “(a) that he understands the nature of the him; against by informing guilty admitting “(b) him that his he is alleged of all facts in the indictment or information or to an truth upon entry offense included thereunder and that of such judgment proceed sentence; and shall “(c) informing guilty rights him he waives his against public speedy by jury, to a to face the witnesses compulsory process obtaining him, to in his have witnesses favor guilt beyond require prove to the state to a reasonable doubt testify may compelled a trial at which not at against himself; the defendant “(d) informing possible him of the maximum mini- sentence and charged any possible for the offense mum sentence and of increased prior convictions, reason of the fact of a conviction or sentence any imposition possibility sentences; consecutive “(e) informing agree- party any him that the court is not a prosecutor ment which made between the and the thereby.” bound defense and “Q. you and write? read Can Yes, sir.
“A. every Sobel, you each and sentence?
“Court: Mr. read every paragraph, each and Each and “Mr. Sobel: it’s difficult sentence, he incarcerated and every to him. take it back through Oh, see, the bars. it was “Court: Yes, Your Honor. “Mr. Sobel: your everything you
“Q. Emerson, understand did Mr. you? lawyer read to Yes, sir.
“A. rights plead “Q. your you understand Constitutional Did Jury charge, a trial to have to this witnesses, innocence, and presumption see the you? rights that he read all of those Yes, sir. “A. Speak please.
“Mr. Sobel: up
“Q. rights? you You have those know Yes, sir.
“A. you guilty, “Q. your plea enter And when *7 giving rights, up you do understand that? those Yes, “A. sir.
“Q. offering plead to the crime You are to charge robbery, is that of armed
as covered right?” interjection by Mr. from to defendant due answer
[no Sobel] agreement
Later, advised that trial court was existed. agreement Beplay? Mr.
“Court: What’s Beplay: agreed Honor, “Mr. Your State has only recommendation for make beyond no recommendation the minor statute and that. time? recommendation
“Court: No Beplay: Yes, “Mr. sir. agreement, Is that Sobel?
“Court: Mr. Yes,
“Mr. Sobel: sir. “Q. eligible Emerson, Mr. to be under the you age twenty- statute,
minor under the have be one, your age? is what Eighteen.
“A. “Q. eligible, you Also to be cannot have been convicted
felony you before, felony been convicted before? No,
“A. sir. “Q. guarantee you eligible, Then but that be does you statute, be will sentenced under the do minor
you undertand that? Yes,
“A. sir. “Q. you If statute, were I under the minor sentenced
give you up year years, my or one to ten but this my pre-sentence decision and I’ll base decision report, upon anything you me, attorney your to tell want anybody wants to tell me, or to tell me at wants sentencing. give you time of Then I’ll decide whether ten, one to day year, twenty-five or one to a ten years, do understand? Yes,
“A. sir.” eligible These circumstances indicate that if Emerson is statute, presentence to be sentenced under minor investigation say report and others have to in his what behalf guide eligible will court. sentenced under the counsel minor His defense and minister statute.- spoke report presentence revealed his co- behalf. operation police family background. and his It *8 learning bricklayer pointed out that he was to be a had and gainfully employed. probation been The officer recommended an sentence at the Indiana Youth executed Center. Until sentencing, time of trial court did indicate robbery felt the crime of was too serious minor and statute that Emerson’s should serve example might
as an the street commit a others who consequence entering similar crime.2 This came sud- denly pronouncement It and at sentence. have accepted well The trial aware the State had a re- robbery charge robbery duced sentencing well aware of the factual basis for the from armed when it recommended Additionally, under the minor statute. the trial court was accepted when it following sentencing: plea. The statement was at made later going every “E.T. Johnson: You’d rather be here and to Church Sun- day, you son? wouldn’t Yes, “Cornelius Emerson: sir. prison church, “Court: I’d I think I too. Between I’d think jail. problem take the church over the There’s one critical involved Bench, up been on the seen several innocent here. Since I’ve people I’ve dead robbery somebody gets just this, greedy, killed in a like takes want, pistol, they is wrong exactly a man what doesn’t do makes a move, bang, person completely innocent, he’s dead. Now that dead, person robbery when he’s in commits the life in then who commits serves life prison, only killed, injured, person even if he’s not but who robbery prison. only serves life in difference between prison likely give for Cornelius Emerson and what I’m him nobody injured robbery. is the fact there was killed Reverend, you dangerous go people I think how understand it is when guns. around with ...” No, gun, merely “Court: Cornelius didn’t hold the Cornelius recovered money. money. “Mr. Sobel: He recovered the collector, gun, “Court: He was the other man held the Cornelius money. collected the the, “Mr. Sobel: think I don’t Cornelius he realized had drawn or what doing he was there. No, probably Unfortunately many “Court: didn’t. too of the folks they out there in streets don’t realize how serious the behavior engaging is, get point young and I’d like across to the people who think that armed is a lark. I’m sure Cornelius family very you try family, Emerson’s is a nice and I’m sure do you’ve good and I’m certain that led life. And the Reverend of good life, you’ve you course has led a tried to do the best can with your people you the folks in flock. But sometimes there are over which advise, you give no control. All can do is can them the benefit your experience your wisdom, person go but if the wants way, decision, right?” own that’s his Being defense counsel. by Emerson or anticipated *9 their conse- subjective circumstances of these unaware involun- an Emerson entered plea, quences guilty. tary plea of
II. Discretion Abuse of sentencing, counsel Emerson’s defense Immediately after guilty. motion was denied. This plea of the moved withdraw concern motion, court’s sole trial the In its denial of the guilty plea: Emerson accepting the legal justification for its plea not bound the trial court was told that had been deep legal justification agreement has the State. This Anglo-Saxon jurisprudence. rationale is Its roots in negotiations bargain plea beneath party to be a compromising the sovereign’s dignity; therefore, to avoid English trial agreements, sovereign’s position in strictly negotiations be conducted considered courts entered, guilty was parties. between the When CHERRY, ON LECTURES R. could not be See withdrawn. ANCIENT COM- IN LAW THE GROWTH OF CRIMINAL MAITLAND, ; F. (1890) & 2 F. POLLOCK 8 MUNITIES 1968) ; (2d 450-51 ed. THE OF ENGLISH LAW HISTORY CRIME, MEDIE- JEUDWINE, TORT, IN AND POLICE J. (1917) ; Beccaria, and Punish- Crimes On VAL BRITIAN 87 (1974). medieval Such ments in GREAT TODAY 353 IDEAS equity hardly the fairness and standards reflect can rationale century. in the American courts twentieth adopted legal justification held that Supreme has Indiana Court Our guilty plea not be sole should court’s accepting a in plea. In Allman denying motion to withdraw in a concern 56, 62, 14, 24, Ind. 235 N.E.2d State v . court, writing in in Hunter, stated Justice . timely has been motion to withdraw stances where solely not be concern should directed filed, the trial court’s origi- legal justification in question court’s own to the guilty. . .” nally accepting . regarding inquiry
No on the concession. to Emerson of counsel advice Yet, that Emerson’s counsel discloses defense record disagreed probation the recom- pressed hard probation made in officer which had been mendation report.3 Further, colloquy between Emer- presentencing long counsel and the trial court shadow defense casts son’s understanding to what upon Emerson’s sentence at the hands of the trial court:4 receive your “Court: Would to make a statement behalf like pronounce. before I . . . client Honor, definitely Yes, I most have. read the Pro- Your “Mr. Sobel: beg report, with him his conclusions and I differ bation Officer’s in this terviewing *10 looking thing simply in- particular He’s at this from matter. young looking probably of men. I’m of thousands one out January, seen at young known since and I’ve man I’ve at this least whom jail spoke to him. This is a times at the and a half a dozen down limited, young his poor, at is his education best man that was one very again grossly parents ability limited, his are is intellectual they’ve him, him taken care of as best about and I think concerned anything they can, was there think there’s that could be said that I don’t you report, parental discipline, will note from the a lack of any young worked, bum, he went to school and he man he wasn’t got school, in he worked when he out of school. worked while he was Court, been in he’s never arrested He’s never Juvenile [been] young charged anything, a man with he ran into who overruled him, poverty, it, him feel that a of that as he knew life going wrong, beaten, into he sort of intimidated he’s learned severely, jail months, lesson he’s been in for six I where his don’t see going young any incarceration whatsoever is to this man’s be to ready go him, work, waiting to He’s back to there’s work benefit. object rehabilitation, law, as I understand the Indiana is I report, got something think from the Probation more that’s Officer’s we’ve anything young punitive type than else. If he wants to of have some supervision man, probation, suspended this I think a sén- maybe probation, get probation, help a tence and severe- him job, type training, layer, a some to into he’s learned be a brick it young advantage disadvantage, to this man’s would be more than to a quite happened, open he’s contrite about he’s with what been free and statements, trying anything, he’s not to conceal he even tried to straighten place, out the record to took the so-called other wrong, Reverend, believe, he realizes he’s been here, and this is his I is speak Honor, also, would like to in his Your behalf if the give opportunity present me an Court would 4. The rationale evidence.” presented in this not with dissent should be confused expectation expectation a lesser sentence rationale. In the sentence, possibility although there exists a a lesser lesser sentence forthcoming sentencing. possibility at not No under the is young type a fel- I that violent believe he’s
“Mr. Sobel: he’s, antagonism, bitterness, I there’s no low, there is no here, justice he has would be no better served that believe jail months, if he would have sort in for six some been time, your, suspended been in in this I’ve probation and before, you’ve given before, I’ve been before Court comply proba- opportunities, they if their people even with young fellow, tion, chance, I think from what a second this my him, experience I vari- what know I know of criminals, at he deserves least a first chance. ous absolutely firmly Sobel, you right, I Mr. believe “Court: attempting person rehabilitate probation, in a outside in just exceptions, prison, one of few is very policy, matter of there are that are crimes them. As much more than a man serious, this is serious shoots who heroin, much, much more This is a arm full of serious. just society, Emerson, threat Cornelius this is a people go drugstore, who threat to innocent that run drugstore, I mean even customers been who’ve murdered drugtores they because do think don’t what robbers something they this is take should do. And we cannot lightly, maybe lightly, taken has there are too many understanding armed robbers have the I get one, they figure committing they, keep a free well I’ll so caught get nothing going robberies until because happen anyway. the first time me Judge, understanding, I don’t think he has that Sobel: “Mr. drug brought problem many up about what I *11 things, drug young men commit these these relat- of these desperate, reasoning ing. crimes, they is whether their way another, trying by narcotics some or what I’m clouded accepted by was minor statute existed when the reading proceedings. careful of the in Emerson’s A record discloses court too for the crime serious that the the trial court considered inception proceedings. No minor statute from given refusing trial court was follow other reason state’s recommendation. problem guy that bring doesn’t have out is bothering he any him if going trouble have he’s got to do some- feel that he’s him to force the street to body addiction, inside their because thing to relieve the counsel, trial had advised Sobel, defense Emerson’s Mr. “Judge, that understand- think that has I don’t court: Emerson, State, ing. presence In the . .”. He urged probation for Emerson. court, had Mr.
trial Sobel disagreed pre- in the zealously the recommendation Emerson serve sentencing report recommended that which He reminded at the Youth Center. an executed sentence followed prior occasions trial had trial court that on giving to rehabilitate defendants a chance practice drug any He emphasized the lack of addiction. He themselves. represented had never been trial court that Emerson felony and “he’s never been Juvenile convicted charged anything Court, arrested he’s never [been] clearly indicate that Emerson’s Mr. Sobel’s statements understanding not that he would receive a sentence was twenty-five entering years guilty; ten on the contrary, these cast Emerson’s statements a shadow understanding guilty plea of his and indicate Emerson given hope probation by some his defense Certainly, there counsel. was understood might possibility that he be sentenced under the minor statute. Yet, inquiry no court. Failure make any inquiry State, supra. abuse of discretion. Dube was an
Ill Policy Judicial ignored judicial policy completely trial court has Supreme policy This first enun- the Indiana Court. Supreme Court Hunter ciated for Indiana Justice *12 258 State, supra,
Dube
v.
and reaffirmed
Chief Justice Givan
State, supra,
in Watson
This is reflected in the to Section 3.3 Proposed of the Bar American Association the Revisions of Relating Guilty.5 to Pleas of Federal Standards Rules Procedure, (e) (4) provides: Criminal Rule 11 Commentary 3.3(b) Proposed 5. The to to Section Pleas the Revisions Relating Guilty to the states: Standards proposed 3.3(b), change judge to section if “Under the mind, changes his inform later he must the defendant of this fact and provide opportunity plea. with an the defendant to withdraw his proposed change though prior is that basis for the even the concur- judge conditional, strictly speaking so contradictory, his rence of the later decision disposition on final is it nonetheless give plea. opportunity seems fair to the an to defendant withdraw his give judge chance, were not to the If the held the defendant templated this defendant but instead plea grant to his the con- refused concessions plea agreement, probably the the in defendant would believe unfairly. reasons, he been dealt There obvious from had standpoint, why a correctional a defendant should be he satisfied that fairly pentientiary. when he arrives treated at the It should be only judge noted that such give situation will arise the chooses when agreement. notice as to his advance concurrence in the he When so, it believed that the does change is occasions in which finds need exceedingly his mind will be rare. proposed change, judge may precisely the “Under the indicate in respect plea agreement (e.g., he now concur what does not in ‘the agreement contemplated years, from one to three but I have now con- impose years’), cluded that I would from two to four but he is obligation Rather, only no to do so. he need advise the defendant longer disposition plea contemplated by he no concurs in the agreement or inquire then whether wishes to affirm the defendant prior plea. entry original As with withdraw of the (see §1.1), response defendant’s should be received from open court, except himself in defendant when defendant corporation. A verbatim of the record court’s advice the defendant response preserved and the defendant’s should be in original receipt (see §1.7). same fashion as for the Commentary original report (ABA “All of the to section 3.3 in the STANDARDS, 1967]) Draft, PLEAS OF GUILTY Feb. [Tent. change, proposed except still relevant under the paragraph page immediately preceding heading on ‘Section ” 3.3(c).’ shall, agreement, rejects the court court “If the fact, the de- parties of advise record, inform the showing or, on a open personally defendant good by the camera, is not bound cause, the court opportunity agreement, defendant afford the that if he the defendant plea, and advise then withdraw nolo contendere guilty plea persists in his the defend- be less favorable disposition the case *13 agreement.”6 by contemplated the than that ant sentencing that before been advised Emerson should have longer in the concurred reason no the trial court some sentencing State, by the recommended concession either reaffirm statute, the minor plea. guilty This would guilty or withdraw judicial contemplated the procedure the fair have been Supreme the A.B.A. Stand- policy Court and of the Indiana abuse of a further discretion court committed ard. Supreme ignored judicial Indiana policy it when the dispensed. justice me believe It failed to make Court. judgment thé to vacate I reverse instructions grant trial court to further instruct and sentence. would guilty. the motion to withdraw Reported 48. at N.E.2d Note. — Supreme Although no formal Indiana Court Criminal there is 11(e) (4), Rule note to the Criminal we that the Rule similar Federal Supreme 1971, policy is reflected IC Court’s further 35-5-6-2 Indiana requires (Burns Supp.) Ed. 1975 which the trial court advise Code accept the the defendant whether it will State’s 1975, provides: recommenda- passed statute,
tion. This which was may prosecutor “(a) to a No be made court recommendation charge (1) writing, (2) felony except a before defendant giulty. filed, shall shown as enters and, The recommendation be prosecutor anticipates if its contents that the that the indicate felony charge, intends enter a defendant report presentence required by court shall order IC 35-4.1-4-9 may hear evidence on the recommendation. recommendation, “(b) presentence Neither the content of the nor the court report hearing part official shall be a record the case approves If the unless recommendation. recommendation accepted, reject may shall is tried. the same before the case rejects recommendation, subsquent If the court recommenda- subject requirements court, tions this mendation. If the court be filed with the to the same chapter imposes upon initial recom- [35-5-6-1 35-5-6-3] — accepts recommendation, shall be bound by its terms.”