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ATTORNEY FOR APPELLANT
John T. Wilson Anderson, Indiana

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Nicole M. Schuster Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 48S02-0607-CR-272 JASON HOLE, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Madison Superior Court, Division III, No. 48D03-0401-FB-8 The Honorable Thomas Newman, Jr., Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 48A02-0504-CR-337 _________________________________ July 27, 2006 Rucker, Justice.

Jason Hole seeks transfer from a decision of the Court of Appeals affirming his sentence for battery resulting in serious bodily injury to a person less than fourteen years of age, a Class B

felony.

The record shows that Hole broke the leg of his girlfriend's fourteen-month-old

daughter. A doctor who diagnosed the child testified that a great amount of force was required to accomplish this feat and that such an injury was not consistent with a fall or other accident. Hole pleaded guilty to the offense under an agreement that was not reduced to writing but orally recited in open court as follows: "[T]he terms of the plea agreement are [a] ten (10) year sentence. [P]lacement open to the court." Tr. at 8. After a hearing the trial court imposed an executed sentence of ten years. On review Hole cast his single issue as "[w]hether the Trial court properly sentenced Hole to an enhanced term of a ten (10) year sentence." Br. of Appellant at 1. 1 Complaining primarily that the trial court failed to consider significant mitigating factors, Hole also contended that his sentence was inappropriate within the meaning of Indiana Appellate Rule 7(B).

Concluding that Hole could not challenge his sentence on appeal, the Court of Appeals declared in an unpublished memorandum decision, "It is clear from the record that Hole agreed to serve a ten year sentence for his crime. His agreement to the ten year sentence implies that he also agreed that his sentence was appropriate." Hole v. State, No. 48A02-0504-CR-337, slip op. at 3 (Ind. Ct. App. Sept. 14, 2005). In support, the court relied upon Wilkie v. State, 813 N.E.2d 799, 804 (Ind. Ct. App. 2004), trans. denied, for the proposition that "if a defendant signs a plea agreement in which he agrees to a specific term of years . . . he will not be able to claim thereafter that a sentence imposed consistent with the agreement is inappropriate." In his petition to transfer, Hole contends that the precedent on which the Court of Appeals relied is "erroneous and is in need of modification or clarification." Pet. to Trans. at 3. Although we now grant transfer, except as otherwise provided we summarily affirm the Court of Appeals' decision.

In a recent opinion we disagreed with the view expressed in several Court of Appeals opinions that defendants who enter into certain categories of plea agreements are either barred on appeal from challenging the appropriateness of their sentences under Indiana Appellate Rule 7(B) or have acquiesced to their sentences and therefore cannot now complain. We held instead that Indiana Appellate Rule 7(B)
1

It is not apparent why Hole characterized his sentence as "enhanced." The presumptive sentence (or now advisory sentence) for a Class B felony is ten years. See Ind. Code

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Indiana Law