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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: KIMBERLY A. JACKSON Indianapolis, Indiana

FILED
Dec 19 2008, 9:39 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MELLISICA K. FLIPPEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DANNY L. RICHARDS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 42A01-0712-CR-585

APPEAL FROM THE KNOX SUPERIOR COURT The Honorable W. Timothy Crowley, Judge Cause No. 42D01-0602-FB-14

December 19, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Danny Richards appeals the sentence imposed following his plea of guilty to dealing in a schedule II controlled substance, a Class B felony. On appeal, Richards raises a single issue, which we restate as whether the trial court erred when it sentenced Richards to a term of twenty years, the maximum for a Class B felony. Concluding that Richards entered into a written plea agreement including an agreed-upon fixed sentence and that the trial court sentenced him in accordance with that agreement, we affirm. Facts and Procedural History On February 15, 2006, the State charged Richards with count I, dealing in a schedule II controlled substance, a Class B felony, and count II, maintaining a common nuisance, a Class D felony. On October 26, 2007, the parties filed a written plea

agreement ("the agreement") in which Richards agreed to plead guilty to count I in return for the State agreeing to dismiss count II as well as five counts of child molesting, three as Class A Felonies and two as Class B felonies, pending in the same trial court under a separate cause number.1 The agreement also states the State "will recommend to the [trial court] that the Defendant receive the following penalty . . . Twenty (20) years of incarceration with Five (5) years suspended to formal probation, and Fifteen (15) years to be executed." Appellant's Appendix at 139. The trial court held a change of plea hearing on October 26, 2007. At the hearing, the trial court described the agreement in pertinent part as follows: The parties' agreement provides that the Defendant will enter a plea of guilty today to Dealing in a Schedule II Controlled Substance, a Class B
Richards's first trial on the child molesting charges ended in a mistrial, and the State was apparently preparing to retry the charges at the time of the plea agreement.
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felony. The parties have agreed that the Defendant will receive a sentence of 20 years of incarceration in the Indiana Department of Correction with five of those years suspended to formal probation and 15 years executed. Transcript at 81-82. The trial court asked Richards's counsel, "is that a fair rendition of your agreement?", and he replied, "Yes, that is, Your Honor." Id. at 84. At the plea acceptance and sentencing hearing, the State expressed some concern about whether Richards accepted the terms of the agreement. The trial court said to Richards, "my understanding is this morning you had some questions in your mind about this Plea Agreement?" Id. at 104-05. Richards responded in the affirmative. The trial court then asked, "Do you still wish to go forward with this Plea Agreement today? ... You've thought about it? ... [Your attorney] has explained to you the various alternatives either way, right? ... And you wish to go forward with this as it's written?" Id. at 105. Richards responded in the affirmative to each question. After accepting the guilty plea, the trial court stated, "the Court agrees to be bound to sentences [sic] provided by [the plea agreement's] terms" and "the Court will now proceed with sentencing of Mr. Richards pursuant to the terms of the Plea Agreement." Id. at 107, 08. The trial court then made the following sentencing statement: Okay, in sentencing any Defendant for a felony, the Court has to consider certain statutory factors and the Court has considered these factors in determining that it would accept this Plea Agreement. Because I've accepted this Plea Agreement as it's written and agreed to be bound by it, the Court finds neither aggravating nor mitigating factors against Danny Richards. The Court now sentences the Defendant, Danny L. Richards, as follows, on this Dealing charge in Cause Number FB-014. Pursuant to the parties' Agreement, the Defendant shall receive a sentence of 20 years in the Indiana Department of Correction with five of those 20 years suspended to formal probation and 15 years executed . . . ."

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Id. at 109. At the conclusion of the hearing, the trial court asked Richards if he had any questions about his obligations and he responded in the negative. Discussion and Decision I. Standard of Review We review a trial court's sentencing decision for an abuse of discretion, which occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence if, after due consideration of the trial court's decision, we find that the sentence "is inappropriate in light of the nature of the offense and the character of the offender." Id. When a plea agreement leaves the issue of sentencing solely to the trial court, provides a sentencing range, or provides a cap on sentencing, the trial court exercises discretion in determining the specific number of years to be sentenced. See Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006). In such cases, a defendant "is entitled to contest the merits of a trial court's sentencing decision." Id. at 1078-79 (quoting Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996)). However, when a plea agreement calls for a specific number of years, the trial court, if it accepts the agreement, has no discretion to impose any sentence other than the precise sentence on which the parties agreed. Id. at 1078 n.4 (citing Badger v. State, 637 N.E.2d 800, 802 (Ind. 1994) ("[I]f the court accepts the agreement, it becomes bound by the terms of the agreement.")). A so called "fixed"

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plea agreement is not subject to Indiana Appellate Rule 7(B) review. See Hole v. State, 851 N.E.2d 302, 304 (Ind. 2006). II. Review of the Sentence A. Fixed or Open Plea Agreement The threshold question is whether Richards entered into a fixed or open plea agreement. A plea agreement is "an agreement between a prosecuting attorney and a defendant concerning the disposition of a felony ... charge." Ind. Code

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