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ATTORNEY FOR APPELLANTS
Patricia Caress McMath Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE MARION COUNTY PUBLIC DEFENDER AGENCY
Ann M. Sutton Marion County Public Defender Agency Indianapolis, Indiana Joel M. Schumm Indiana University School of Law Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 61S01-0510-CR-484 ROGER D. CHILDRESS, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ No. 61S04-0510-CR-485 GARY L. CARROLL, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________

Appeal from the Parke Circuit Court Nos. 61C01-0402-FB-56 61C01-0303-FB-55 61C01-0204-FD-59 61C01-0306-FC-104 The Honorable Ronda R. Brown, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals Nos. 61A01-0409-CR-391 and 61A04-0409-CR-483 _________________________________ June 14, 2006 Rucker, Justice.

In these two cases we address whether a defendant may challenge on appeal the appropriateness of a sentence imposed under the terms of a plea agreement.

Facts and Procedural History

Roger D. Childress was charged with multiple drug related felony offenses and one nondrug related misdemeanor. Under the terms of a written plea agreement, Childress agreed to plead guilty to possession of methamphetamine as a Class B felony, and the State agreed to dismiss the remaining charges. The plea agreement also provided, "Defendant will be sentenced to the Indiana Department of Corrections for a period of six (6) years, however, both sides shall be free to argue what, if any, of the same should be executed." Appellant's App. at 25. The trial court accepted the agreement and Childress pleaded guilty pursuant to its terms. At the

sentencing hearing the trial court imposed a sentence of six (6) years, all of which were to be executed.

Childress appealed arguing among other things that the sentence the trial court imposed was inappropriate because (i) probation was an option, (ii) Childress is a good candidate for probation, and (iii) in its pre-sentence report the probation department recommended that a portion of Childress' sentence be suspended. Br. of Appellant at 5. In an unpublished

memorandum decision the Court of Appeals declared, "If . . . a defendant signs a plea agreement

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in which he agrees to a specific term of years or to a sentencing range other than that authorized by statute, he will not be able to claim thereafter that a sentence imposed consistent with the agreement is inappropriate. By voluntarily entering into this type of plea agreement a defendant necessarily agrees that the sentence is appropriate, and we cannot say that the sentence is inappropriate. . . . Because Childress voluntarily entered into this agreement with the State, he cannot now claim that the specific term of years of imprisonment in the original agreement is inappropriate." Childress v. State, No. 61A04-0409-CR-391, slip op. at 3-4 (Ind. Ct. App. Apr. 14, 2005) (citations omitted). Nonetheless the court addressed Childress' claim and concluded that his sentence was appropriate in light of the nature of the offense and character of the offender.

Under four separate cause numbers Gary L. Carroll was charged with multiple drug and weapon related felony offenses. According to the terms of a written plea agreement, Carroll agreed to plead guilty to dealing in methamphetamine as a Class B felony, carrying a handgun without a license as a Class C felony, and resisting law enforcement as a Class D felony. The State agreed to dismiss the remaining charges. The plea agreement also provided, "The State of Indiana and the Defendant agree that both sides are free to argue the Defendant's sentence with the maximum possible sentence being twelve (12) years executed." Appellant's App. at 78. The trial court accepted the agreement and Carroll pleaded guilty pursuant to its terms. At the sentencing hearing the trial court imposed the presumptive ten-year sentence for the Class B felony conviction, the presumptive four-year sentence for the Class C felony conviction, and the presumptive one and one-half year sentence for the Class D felony conviction. Ordering the Class C and B felonies to run concurrently and the Class D felony to run consecutively to the other sentences, the trial court imposed a total executed sentence of eleven and one-half years.

Carroll appealed arguing among other things that the trial court ignored significant mitigating factors and thus the presumptive sentences were inappropriate. Rejecting Carroll's claim the Court of Appeals declared in an unpublished memorandum decision, "Carroll entered into a plea agreement wherein he agreed to a sentencing range other than the range authorized by statute, and he is not now able to claim that a sentence imposed consistent with this agreement is

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inappropriate." Carroll v. State, No. 61A04-0409-CR-483, slip op. at 6 (Ind. Ct. App. May 4, 2005) (citations omitted).

Having previously granted transfer in both cases and consolidating them for purposes of oral argument and resolution, we now address the sole issue presented for our review: whether a defendant may on appeal challenge the appropriateness of a sentence imposed under the terms of a plea agreement.

Background

Indiana Appellate Rule 7(B) provides, "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." In a series of recent opinions the Court of Appeals has addressed whether and under what circumstances a defendant may raise a Rule 7(B) challenge to a sentence imposed by the trial court as a result of a guilty plea. The origin of the court's opinions is Mann v. State, 742 N.E.2d 1025 (Ind. Ct. App. 2001), trans. denied. In that case Warlito G. Mann was charged with murder and entered a plea agreement calling for voluntary manslaughter. The agreement provided that the trial court could impose a sentence of not less than thirty years but no more than fifty years. After a hearing the trial court imposed fifty years. Mann appealed challenging his sentence. In a divided opinion the Court of Appeals remanded the cause with instructions to the trial court to impose a forty-five year sentence. In a footnote the court observed, "[b]ecause we remand for correction of Mann's sentence, we do not address his implicit premise that a sentence to which a defendant has agreed in a plea bargain can be `manifestly unreasonable.' Mann entered into a plea agreement that provided the trial court could impose a sentence between thirty and fifty years. Mann's sentence of fifty years, although at the upper end of his agreement, was still within the agreement." Id. at 1026 n.1. 1

At the time of Mann's appeal, Indiana Appellate Rule 17(B) provided, "The reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender."

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Mann was next cited with approval in Gist v. State, 804 N.E.2d 1204 (Ind. Ct. App. 2004), trans. not sought. In that case Christopher Gist was charged with robbery as a Class B felony and conspiracy to commit robbery as a Class B felony. He entered a plea agreement for the conspiracy charge. Under the terms of the agreement the State agreed to limit its sentencing recommendation to the presumptive term of ten years. The trial court sentenced Gist to ten years and he appealed. Addressing Gist's argument that the ten-year sentence was inappropriate within the meaning of Indiana Appellate Rule 7(B) the Court of Appeals declared:

By entering into this agreement with the State, Gist necessarily agreed that a ten-year sentence was appropriate. If Gist thought that a ten-year sentence was inappropriate, then presumably he would have not entered into the plea agreement in the first place and would have taken his chances at trial without the benefit of a plea agreement. Where, as here, a defendant is sentenced in accordance with a plea agreement--an agreement he voluntarily entered into, we cannot say that the sentence is inappropriate. This holding is consistent with Mann v. State, where we said that a sentence that fell within the sentencing range provided for in the plea agreement was not manifestly unreasonable even though the defendant was sentenced at the upper end of that range. Gist, 804 N.E.2d at 1206-07. 2
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Gist and Mann have provided the underlying basis for several Court of Appeals opinions addressing this issue. See, e.g., Bennett v. State, 813 N.E.2d 335, 338 (Ind. Ct. App. 2004), trans. not sought ("[W]hen a defendant is sentenced in accordance with a plea agreement, he has implicitly agreed that his sentence is appropriate."); Wilkie v. State, 813 N.E.2d 794, 804 (Ind. Ct. App. 2004), trans. denied (taking issue with the "broad language" of Gist, but agreeing with the result); Mast v. State, 824 N.E.2d 429, 431 (Ind. Ct. App. 2005), trans. not sought (agreeing with the logic of Gist and Mann where a plea agreement explicitly permits the trial court to sentence within a sentencing cap, but not where the plea agreement is "open"); Young v. State, 826 N.E.2d 665, 670 (Ind. Ct. App. 2005) (citing Gist and Wilkie and acknowledging the "difference of opinion on this court as to whether a defendant who enters into a plea agreement with a sentencing cap may later challenge the appropriateness of a sentence that does not exceed the cap"), vacated on other grounds by Young v. State, 834 N.E.2d 1015, 1016 n.1 (Ind. 2005) (declining to address the inappropriateness claim because the issue was presently before this Court in two pending cases); Eaton v. State, 825 N.E.2d 1287, 1290 n.3 (Ind. Ct. App. 2005), trans. not sought (the author of Gist clarifying that the case "does not stand for the proposition that anytime a defendant voluntarily enters into a plea agreement, that defendant is thereafter barred from challenging his sentence as inappropriate"); Reyes v. State, 828 N.E.2d 420, 426 (Ind. Ct. App. 2005), trans. granted ("[W]hen a defendant's plea provides for a specific sentencing range, implicit in the defendant's agreement is his concession that a sentence within that range is appropriate."); Gornick v. State, 832 N.E.2d 1031, 1035 (Ind. Ct. App. 2005), trans. denied (citing Gist and Mann with approval but clarifying "we emphasize that waiver of the inappropriate sentencing standard does not apply when a plea agreement is `open' and only provides for

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Analysis

We begin our discussion with Tumulty v. State, 666 N.E.2d 394 (Ind. 1996). In that case the defendant was charged with attempted criminal deviate conduct, two counts of battery, and of being an habitual offender. Without the benefit of an agreement, and in the middle of trial, the defendant pleaded guilty as charged leaving "sentencing up to the court." Id. at 395. The court sentenced the defendant to a twenty-year term for his attempted criminal deviate conduct conviction. This sentence was enhanced by twenty years by virtue of the habitual offender finding. For the two battery counts the defendant received concurrent four-year sentences on each count, to be served consecutively to the criminal deviate conduct sentence. The effective sentence was thus forty-four years.

On appeal the defendant challenged the trial court's acceptance of his plea to the habitual offender finding. The Court of Appeals held that a defendant should be permitted to appeal a guilty plea whenever the record of the plea is adequate to resolve the issues being appealed. This Court granted transfer and reiterated the principle that "a conviction based upon a guilty plea may not be challenged by motion to correct errors and direct appeal." Id. at 395 (quoting Weyls v. State, 266 Ind. 301, 362 N.E.2d 481, 482 (1977)). The Court noted that one consequence of pleading guilty is the restriction of the ability to challenge the conviction on direct appeal. The Court then proceeded to address, but ultimately reject, the defendant's claim that his sentence was manifestly unreasonable under Appellate Rule 17(B) and that the trial court failed to articulate reasons sufficient to enhance by twenty years his sentence for attempted criminal deviate conduct. In doing so the Court held, "By contrast to the prohibition on appealing the trial court's acceptance of a plea, a defendant is entitled to contest the merits of a trial court's sentencing discretion where the court has exercised sentencing discretion, as it did here." Tumulty, 666 N.E.2d at 396.

the statutory range applicable to the defendant's offense"); Nguyen v. State, 837 N.E.2d 153, 158 (Ind. Ct. App. 2005), trans. not sought ("Because he entered into a plea agreement that was not open . . . Nguyen has waived Rule 7(B) review of both his `imposed' sentence and his `executed' sentence.").

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Where, as in Tumulty, a defendant pleads guilty to what has been characterized as an "open plea" 3 the freedom and latitude of the trial court to impose a particular sentence is readily apparent. See, e.g., Gutermuth v. State, 817 N.E.2d 233, 234 (Ind. 2004) (an open plea in which the trial court imposed consecutive sentences after weighing aggravating and mitigating factors). Under such circumstances the trial court's discretion is limited only by the Constitution and relevant statutes. Ind. Code

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