Appeal from the Marion Superior Court, No. 49F25-1203-FB-14944. The Honorable Carol J. Orbison, Senior Judge.
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1301-CR-34.
Dexter Berry, APPELLANT, Pro se, Pendleton, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Justin F. Roebel, Deputy Attorney General, Indianapolis, Indiana.
Rush, Justice. Dickson, C.J., and David and Massa, JJ., concur. Rucker, J. concurs in result.
In the absence of a plea agreement, trial courts have broad discretion to set conditions of probation, including " substantial punitive obligations" such as restrictive placements in work release. But when a trial court accepts a plea agreement with an executed time cap, its discretion to impose further punitive conditions of probation does not extend beyond what the plea agreement specifies. As we interpret Defendant's plea agreement, it conferred discretion to determine the placement of his executed sentence, but not for any further restrictive placement as a condition of probation. Defendant's one-year term in work release as a condition of probation, following the maximum executed term allowed under the agreement, thus exceeded the court's authority. We therefore grant transfer and remand with instructions to accept or reject the plea agreement as written, and if accepted, to resentence Defendant consistent with its terms. In all other respects, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A)(2).
Facts and Procedural History
Defendant was charged with C-felony burglary and D-felony theft, and later pleaded guilty to B-felony burglary and several lesser offenses as part of a combined plea agreement for this and three other cases. So far as relevant here, paragraph 5 of the plea agreement provided:
5. . . . [T]he State of Indiana and the Defendant agrees [sic] that the Court shall impose the following sentence:
Total combined sentence:
Set term of 10 years initial executed sentence, open to placement. The Court may impose an additional period of time beyond these 10 years and require the Defendant to serve a portion or all of that suspended time on probation.
* * *
Stay away from [the home where Defendant committed the B-felony burglary]. . . . All other aspects of the Defendant's sentence to be left to the discretion of the Court, after argument by the parties, including but not limited to, where the Defendant will serve any executed portion of his sentence . Should the Defendant violate the terms and conditions of his probation, the Court may order any or all of the suspended time to be executed.
(Emphases added). Thus, the agreement expressly confers discretion to determine the placement for the executed sentence, but it has no express provision for setting a restrictive placement for any additional suspended time.
At the guilty-plea hearing, the court questioned Defendant extensively about his understanding of the terms of the agreement, including a discussion with Defendant and both attorneys to clarify the intent of the agreement's sentencing provisions as to both the duration and the placement of the executed sentence:
THE COURT: . . . Set term of ten years initial executed sentence. Open to placement. Do you not . . . if I understand this correctly I can give him a lot more. But everything above that ten years would have to be suspended, is that right?
[DEFENSE COUNSEL]: Yes, ma'am. That's the way we discussed it.
THE COURT: Okay. Mr. Berry, tell me what's your understanding of this. What . . . kind of ...