This is аn original action in which Relator has petitioned for a writ of mandamus requiring the respondent judge to sentence a defendant, Larry D. Tutson, to a term of imprisonment to be served consecutively to a term imposed in another action rather than concurrently therewith, as provided.
On July 20, 1981, Information No. 240A was filed against Tutson. He was arrested but subsequently released on bond on July 27, 1981. While at liberty thereon, on October 24, 1981, Tutson was arrested for another offense, Information No. 208D, committed on or about October 24, 1981, and on November 16, 1981, he was again released on bond.
Plea nеgotiations ensued in both cases which were pending before different judges, and an agreement was reached in Cause No. 240A on March 12, 1982 and on March 19, 1982 in Cause No. 208D pending in the Respondent Court. Each agreement provided fоr a guilty plea and the imposition of a sentence to run consecutively to the sentence imposed pursuant to the other agreement. Ultimately, Tutson was sentenced to four years imprisonment in Cause No. 208D and to a сonsecutive term of two years in Cause No. 240A.
Tutson filed a Post Conviction Rule 1 petition on March 11, 1988 and an amended petition on March 18, 1988 seeking to withdraw his guilty plea in Cause No. 208D for the reason that it had been entered under the еrroneous belief that Ind.Code § 85-50-1-2 mandated that his sentence thereunder be served consecutively to his sentence under No. 240A.
Plea negotiations again ensued, and the Prosecutor (Relator) and Tutson agreed that Tutson would withdraw the petition and amended petition and would again enter a plea of guilty in Cause No. 208D and that the Relator would again recommend a sentence of four years, to be executed, but that no recommendation would be made with respect to whether said sentence would be served consecutively or concurrently to thе sentence imposed in Cause No. 240A.
The parties appeared before the trial court and submitted the agreements. At this point the record becomes very confusing, as the parties and the court appear to be proceeding simultaneously in both the post-conviction proceedings and a resen-tencing in Cause Nо. 208D. After the Respondent Judge announced: "We are here in a hearing on Amended Post Conviction Relief Petition having been filed{,]" all proceeded as if the prayer of the petition had been granted. Limited plea advisеments were then given, and the proceedings then became one of resentencing Tutson.
Arguments of Counsel werе heard. The Relator contended that the court, under the statute had no discretion to order the sen
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tencе to be served concurrently with another, and Tutson's counsel argued that such discretion was authorized by Haggard v. State, (1983) Ind.,
The writ of mandamus is an extraordinary remedy, viewеd with extreme disfavor. State ex rel. Pebblecreek v. Clark Circuit Court, (1982) Ind.,
Despite the confused state of the record of the Respondent court proceedings, it is clear that the Relator has attempted to cireumvent the appeals process. Without intimating an opinion as to whether the State may appeal a sentencing error, notwithstanding the limitations of Ind.Code § 35-1-47-2 (Burns Supр.1982), State v. Palmer, (1979)
It cannot be said that Relator had no remedy by way of appeal when it deliberately engaged in a scenariо apparently designed to preclude an appeal. The plea agreement providing for the withdrаwal of the post conviction petition was tantamount to an agreement that Tutson was entitled to be resеntenced, and we view the proceedings as a grant of post conviction relief from which no appеal was taken.
Subsequent to the preliminary oral presentation of the writ petition and our tentative ruling that the writ wоuld not be granted, for the reasons herein before set forth, Relator submitted a supplemental plea for an advisory written decision upon the issue of whether the trial court erred in ordering concurrent sentences. We do not provide advisory opinions. City of Indianapolis, for and on Behalf of its City-County Council of City of Indianapolis and Mаrion Co. v. Indiana State Board of Tax Commissioners, (1974)
The Writ is denied. The request for an advisory opinion is denied.