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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.

FILED
Dec 30 2009, 9:26 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MICHAEL B. TROEMEL Lafayette, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JAMES E. PORTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

KENNETH RICKS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff.

) ) ) ) ) ) ) ) )

No. 79A02-0909-CR-936

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Donald C. Johnson, Judge Cause No. 79D01-0605-FB-27

December 30, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Kenneth Ricks appeals his convictions and sentence for Class B felony burglary and Class B felony arson. We affirm. Issues Ricks raises two issues, which we restate as: I. whether the trial court made improper comments at his guilty plea hearing; and whether he was properly sentenced. Facts On October 7, 2005, seventeen-year-old Ricks and his friend, Jacob Lewandowski, broke into Calvary Chapel in Lafayette and used a sawzall to remove a safe from an office floor. App. p. 35. Ricks and Lewandowski put the safe into the trunk of Ricks`s car. Lewandowski then returned to the church, poured lighter fluid in the church, and set it on fire. Ricks went back into the church shortly after Lewandowski lit the fire, saw Lewandowski spray additional lighter fluid in the church, and knew the fire would probably burn the church to the ground. Ricks and Lewandowski left in Ricks`s car. On May 12, 2006, the State charged Ricks with two counts of Class B felony burglary, Class D felony theft, two counts of Class B felony arson, Class B felony conspiracy to commit burglary, and Class B felony conspiracy to commit arson. On June 8, 2007, Ricks pled guilty to one count of Class B felony burglary and one count of Class B felony arson. Pursuant to the plea agreement, the remaining charges would be

II.

dismissed, and the executed portion of Ricks`s sentence would be capped at eighteen 2

years. On June 29, 2007, the trial court sentenced Ricks to ten years on the burglary conviction and eight years on the arson conviction. The trial court ordered the sentences to be served consecutively for a total sentence of eighteen years. The trial court also ordered fifteen years of the eighteen-year-sentence to be served in the Department of Correction and the remaining three years to be served with Tippecanoe County Community Corrections. In September 2007, Ricks filed a notice of appeal, which was dismissed as untimely. Ricks then sought permission to file a belated appeal pursuant to Indiana PostConviction Rule 2, and the trial court granted Ricks`s petition to file a belated notice of appeal. On appeal, we concluded that the trial court improperly granted Ricks permission to file a belated appeal without first holding a hearing on his petition. See Ricks v. State, 898 N.E.2d 1277 (Ind. Ct. App. 2009). On April 16, 2009, following a hearing, the trial court granted Ricks permission to file a belated notice of appeal, and Ricks now appeals his convictions and his sentence. Analysis I. Challenge to Convictions Ricks first argues that the trial court made inappropriate comments at his guilty plea hearing and that the trial court was biased. It is well settled that a person who pleads guilty cannot challenge the propriety of the resulting conviction on direct appeal; he or she is limited on direct appeal to contesting the merits of a trial court`s sentencing decision, and then only where the sentence is not fixed in the plea agreement. This is one of the consequences of pleading guilty. After all, [a] defendant`s plea of guilty is [ ] not merely a procedural event 3

that forecloses the necessity of trial and triggers the imposition of sentence. It also, and more importantly, conclusively establishes the fact of guilt, a prerequisite in Indiana for the imposition of criminal punishment. Alvey v. State, 911 N.E.2d 1248, 1249 (Ind. 2009) (citations omitted) (alterations in original). Defendants who plead guilty to achieve favorable outcomes forfeit a plethora of substantive claims and procedural rights. Id. at 1250-51. When a judgment of conviction upon a guilty plea becomes final and the defendant seeks to reopen the proceedings, the inquiry is normally confined to whether the underlying plea was both counseled and voluntary. Id. at 1249. Ricks`s challenge to the trial court`s conduct at the guilty plea hearing does not amount to a challenge that his guilty plea was unknowing or involuntary. As such, Ricks may not challenge the trial court`s conduct at the guilty plea hearing on direct appeal. II. Challenge to Sentence Ricks claims that the trial court predetermined his sentence when it stated at the guilty plea hearing that Ricks was going to prison. exchange between Ricks and the trial court: BY THE COURT: Well, it says you didn`t see, you`re not suffering from any symptoms of psychological disturbance. And of course you`re blaming the other guy. They say you have the kind of personality that leaves you vulnerable to exploitation by others. Says you`re so desperate for friendship that you allow yourself to be taken advantage of by others. Well, you`re headed to prison, as you probably know. And people that can`t think for themselves or use good judgment and commit crimes, and here you are. The kind of person that just goes along. I don`t know

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