FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: 

CARA SCHAEFER WIENEKE GREGORY F. ZOELLER

Special Assistant to the State Public Defender Attorney General of Indiana 

Plainfield, Indiana

 LARRY D. ALLEN

 Deputy Attorney General

 Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

LARRY D. RUSSELL, JR., ) 

) 

Appellant-Defendant, ) 

) 

vs. ) No. 84A01-1312-CR-532 

) 

STATE OF INDIANA, ) 

) 

Appellee-Plaintiff. ) 

APPEAL FROM THE VIGO SUPERIOR COURT

The Honorable John T. Roach, Judge 

Cause No. 84D01-1212-FC-3871 

June 5, 2014 

OPINION - FOR PUBLICATION

NAJAM, Judge 
2

STATEMENT OF THE CASE

Larry D. Russell, Jr. appeals his sentence following his convictions for five counts 

of neglect of a dependent, as Class C felonies, and two counts of criminal confinement, as 

Class C felonies, pursuant to a guilty plea. Russell presents a single issue for our review, 

namely, whether the trial court sentenced Russell as provided in the plea agreement. But 

our resolution of this issue requires us to address a more fundamental issue sua sponte, 

namely, whether Russell’s plea agreement is void and unenforceable as a matter of law.1

We hold that the sentencing provision in Russell’s plea agreement is contrary to 

law, and we reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Russell and his wife adopted three teenaged children: P.G., B.J., and T.D. (“the 

children”). Between August 23 and November 23, 2012, Russell engaged in repeated 

acts of extreme abuse and neglect of the three children. The children lived together in 

one bedroom, and Russell locked the doors to that bedroom with several padlocks on the 

outside of the doors. There were no light fixtures in the bedroom, and the windows were 

covered with plywood. Russell would sometimes lock the children in the bedroom for 

eighteen to twenty-four hours per day. Russell deprived the children of food and access 

to a bathroom for extended periods of time. The children devised a way of reaching the 

kitchen to get food by climbing through a loose panel in the wall and burrowing a tunnel

through the inside of the walls and ceiling.

 1

 On April 2, 2014, we ordered the parties to file supplemental briefs on this issue.
3

The children would typically urinate in a plastic bottle and store it in a hole in the 

bedroom wall. When Russell and his wife discovered the bottle of urine, they proceeded 

to pour the urine over the children’s heads. Russell and his wife also rubbed a product 

called “Icy Hot” on the children’s genitals and rectums, and they would duct-tape diapers 

to the children before the children went to bed. Russell also tied the children to the beds 

with duct tape and rope. Russell waterboarded the children and bound their arms behind 

their backs with a belt. Finally, when Russell wanted to make certain that the children 

would stay quiet, he placed a rolled sock in the mouth of each child and secured it with 

duct tape.

On November 23, P.G. freed himself from the rope and duct tape Russell had used 

to keep him in bed, pried the plywood from a window, broke the window, and jumped 

from the second-story window to the ground below. P.G. then made his way to a hospital 

and reported the abuse. At that time, P.G. was seventeen years old but weighed only 

eighty-two pounds.

The State charged Russell with five counts of neglect of a dependent, as Class C 

felonies; two counts of criminal confinement, as Class C felonies; three counts of 

criminal confinement, as Class D felonies; and neglect of a dependent, as a Class D 

felony. On September 25, 2013, Russell pleaded guilty to five counts of neglect of a 

dependent, as Class C felonies, and two counts of criminal confinement, as Class C 

felonies, pursuant to a plea agreement. In exchange for his plea, the State agreed to 

dismiss the remaining four counts. The plea agreement left sentencing open to the trial 
4

court’s discretion, but capped the sentence at ten years “pursuant to Indiana Code Section 

35-50-1-2(c).”

The trial court accepted the plea agreement and sentenced Russell as follows:

The following statutory aggravating factors have been proven: the harm, 

injury, loss and damage suffered by the victims in this case is significant, 

greater than the elements necessary to prove the commission of the crimes, 

and ongoing; the defendant has a history of criminal or delinquent 

behavior; and the defendant recently violated the conditions “of any 

probation, parole, pardon, community corrections placement, or pretrial 

release” in that on May 30, 2012[,] he was released OR on charges of 

Domestic Battery, subsequently placed on deferred prosecution in that 

matter on September 10, 2012, and the instant offenses were committed 

from August 23, 2012[,] to November 23, 2012.

The court finds the following statutory mitigating factors: defendant 

agrees to pay restitution. The court finds the evidence does not establish 

mitigating factors under I.C. § 35-38-1-7.1(b)(2), (b)(6), (b)(7), (b)(8) or 

(b)(10). The court acknowledges defendant’s acceptance of responsibility 

and his expression of remorse, but finds these factors outweighed by the 

aggravating factors, and undermined by his statement upon arrest that 

anyone with children like the victims would have done the same thing.

The nature and circumstances of the crimes are extreme and 

aggravate the sentence. These were not single, isolated incidents of simply 

going too far with discipline, or bad parenting skills. The victims in this 

case were foster children needing a safe, loving, nurturing home. What 

they got, after being adopted by defendant, was a prison cell, without the 

amenities, and an existence involving torture, starvation, padlocks, 

deadbolts, and escape. Defendant’s actions were deliberate and time 

consuming.

While the rest of defendant’s home contained reasonably clean and 

safe living quarters, including a kitchen with enough food for the family, 

this was not the case for the victims, whose room can only be described as 

cold, dark, sparse and depressing. It is evident the defendant planned and 

executed his crimes over a significant period of time. He spent a 

considerable amount of time turning part of his home into a penal facility 

for the three victims. One entrance to their room was boarded, with nails, 

by a large piece of plywood. Defendant affixed to the outside of the other 

door a series of latches and padlocks, and an elaborate, homemade, 

“deadbolt” locking bar passing through the door jamb. There were holes in 
5

the ceiling tiles, both upstairs and down, where one of the victims 

attempted to tunnel through the walls, out of his cell, and into the kitchen to 

obtain food. At night, the children were restrained to their beds with duct 

tape and rope.

It is apparent the prison-like accommodations were the norm for the 

victims. They endured inhumane conditions when what they needed, what 

they wanted, was parents to love and care for them after they had been 

taken away from their biological parents. Each of the victims deserves 

justice. The court finds the following to be an appropriate sentence. On 

each of Counts 1, 4 and 9 involving P.G., the defendant is sentenced to the 

Department of Correction for eight (8) years, concurrent with one another. 

On each of Counts 2, 5 and 10, involving B.J., the defendant is sentenced to 

the Department of Correction for eight (8) years, concurrent with each 

other, but consecutive to Counts 1, 4 and 9. On Count 3, involving T.D., 

the defendant is sentenced to the Department of Correction for eight (8) 

years, consecutive to Counts 1, 4 and 9 and Counts 2, 5 and 10. However, 

pursuant to the limitation imposed by I.C. § 35-50-1-2, defendant’s 

aggregate, consecutive sentence is limited to ten (10) years. . . .

Appellant’s App. at 97-98 (emphases added). This appeal ensued.

DISCUSSION AND DECISION

Russell contends that “the sentencing order and abstract of judgment issued in this 

case are confusing and somewhat misleading regarding what sentence Russell was 

actually given.” Appellant’s Brief at 4. And he maintains that the trial court “was 

prohibited from entering any sentence other than 10 total years” pursuant to Indiana Code 

Section 35-50-1-2(c). Id. Russell asserts that the Department of Correction is treating 

him “as if he was serving a 24-year sentence with all but 10 years suspended. This has 

negatively affected his classification status, requiring him to serve his sentence in a more 

restrictive setting than he otherwise would have.” Id. On this argument, we agree with 

the State that the sentencing order and abstract of judgment are clear that the trial court 

imposed a ten-year aggregate sentence. 
6

That said, the parties and the trial court are mistaken that Russell’s sentence is 

limited to ten years as a matter of law. Indiana Code Section 35-50-1-2(c) provides in 

relevant part that, except for crimes of violence,2 the total of the consecutive terms of 

imprisonment to which the defendant is sentenced for multiple felony convictions arising 

out of an episode of criminal conduct shall not exceed the advisory sentence for a felony 

that is one class of felony higher than the most serious of the felonies for which the 

person has been convicted. “Episode of criminal conduct” means offenses or a connected 

series of offenses that are closely related in time, place, and circumstance. I.C. § 35-50-

1-2(b).

Our supreme court has explained that, in determining whether multiple offenses 

constitute an episode of criminal conduct, the focus is on the timing of the offenses and 

the simultaneous and contemporaneous nature of the crimes. See Reed v. State, 856 

N.E.2d 1189, 1200 (Ind. 2006). Our courts have also held that, where a complete account 

of a crime can be given without referring to the other offense, the offenses are not an 

“episode of criminal conduct.” Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 

1995). Here, the factual basis for Russell’s guilty plea encompasses the evidence of 

multiple acts of neglect and confinement that occurred repeatedly over the course of three 

 2

 Neither neglect of a dependent nor criminal confinement is listed as a “crime of violence” under 

the statute. See I.C. § 35-50-1-2(a). Even B felony neglect of a dependent, which could have been 

charged here given the facts as pleaded showing that the children suffered serious bodily injuries, is not 

listed as a crime of violence under the statute.
7

months. Russell’s crimes do not constitute an episode of criminal conduct. Therefore, 

the law does not require that Russell’s sentence be limited.

3

In Lockhart v. State, 671 N.E.2d 893, 904 (Ind. Ct. App. 1996), we held that the 

trial court “improperly found Lockhart’s molestations of [the child victim] to constitute 

an ‘episode of criminal conduct’ and, thereby, erroneously reduced the sentence in 

accordance with [Indiana Code Section 35-50-1-2].” And we explained that,

[a]lthough the trial court has broad discretion in sentencing, it must act 

within statutorily prescribed limits. Niece v. State, 456 N.E.2d 1081, 1084 

(Ind. Ct. App. 1983). A sentence which is contrary to, or violative of, the 

penalty mandated by the applicable statute is an illegal sentence. Id. When 

the sentence imposed by the trial court is found to be improper, it is the 

general if not unanimous rule that the trial court has the power to vacate the 

illegal sentence and impose a proper one. Williams v. State, 494 N.E.2d 

1001, 1004 (Ind. Ct. App. 1986); see Devaney v. State, 578 N.E.2d 386, 

389 (Ind. Ct. App. 1991) (holding that it is the duty of the appellate courts 

to bring illegal sentences into compliance even if the correction 

subsequently increases the sentence). Imposition of the corrected sentence 

does not run afoul of the prohibition against double jeopardy. Id.

The application of I.C. § 35-38-1-7.1 is only required when the 

defendant engages in an “episode of criminal conduct.” Because 

Lockhart’s actions do not constitute an “episode,” the sentence originally 

imposed by the trial court contravened the statute and is an illegal sentence. 

See Niece, 456 N.E.2d at 1084. Accordingly, we remand this cause to the 

trial court with instructions to impose a statutorily authorized sentence.

Lockhart, 671 N.E.2d at 904-05 (emphases added); see also Young v. State, 901 N.E.2d 

624, 626 (Ind. Ct. App. 2009) (holding sua sponte that defendant’s sentence was illegal 

and ordering an increase to the executed portion of his sentence), trans. denied.

Likewise here, Russell’s ten-year sentence was based solely on an erroneous

application of Indiana Code Section 35-50-1-2. Russell’s offenses do not constitute an 

 3

 Ten years is the advisory sentence for a Class B felony, which is one class higher than the C 

felonies with which Russell was convicted.
8

“episode” subject to the limitations imposed by Indiana Code Section 35-50-1-2. On 

these facts, the sentence imposed by the trial court contravened the statute and is an 

illegal sentence. See Lockhart, 671 N.E.2d at 904-05.

In their supplemental briefs, the parties concede that Russell’s crimes do not 

constitute an episode of criminal conduct under the statute. Nevertheless, they contend 

that the plea agreement is valid and enforceable. We cannot agree.

Our supreme court has held that

a plea agreement is contractual in nature, binding the defendant, the state 

and the trial court. The prosecutor and the defendant are the contracting 

parties, and the trial court’s role with respect to their agreement is described 

by statute: If the court accepts a plea agreement, it shall be bound by its 

terms.

Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994) (citation and quotation omitted). 

But, “as a general proposition[,] a contract made in violation of a statute is void and 

unenforceable.” Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004).

However, it is also true that if a contract contains an illegal provision that 

can be eliminated without frustrating the basic purpose of the contract, the 

court will enforce the remainder of the contract. Harbour v. Arelco, Inc., 

678 N.E.2d 381, 385 (Ind. 1997); see also 17A C.J.S. Contracts 297 (1999) 

(“[T]he fact that one part of an agreement may be void or unenforceable 

does not render the entire agreement void, if the prohibited and valid 

provisions are severable, and if the parties would have entered the bargain 

absent the illegal portion of the original agreement.”). These principles 

apply even where the illegal or otherwise objectionable provision is 

prohibited by statute.

(Some citations omitted; emphasis added).

Here, the parties attempt to treat the ten-year sentence as severable. But 

sentencing is a material element of every plea agreement, and we cannot say either that 

Russell would have pleaded guilty under the plea agreement without the ten-year cap on 
9

his sentence or that the State would have agreed to the terms of the plea agreement 

without its erroneous understanding of Indiana Code Section 35-50-1-2.

4 And we reject

Russell’s other arguments in his supplemental brief that the plea agreement, including the 

sentencing cap, should be upheld. In particular, Russell states:

Neither Russell nor the State wished to undo the agreement they reached. 

Doing so would expose Russell to a much greater overall sentence, and it 

would require the State to spend a great deal of time and money taking the 

case to trial. Most importantly, declaring the plea agreement void and 

unenforceable in this case would require the young victims, who likely took 

comfort in knowing that the matter had finally been resolved, to appear in 

court and testify about their abuse.

Appellant’s Supp. Brief at 9.

To the contrary, the parties’ desire for expediency has no bearing on the validity of 

the plea agreement. Moreover, while we acknowledge the local prosecutor’s discretion in 

such matters, there is no question that this case is exactly the type of case that the State 

should be expending its time and resources prosecuting. And we cannot sanction an 

illegal sentence. While we respect the consideration that the victims should be spared the 

burden of testifying at trial, this concern does not justify enforcement of an illegal 

agreement.

The parties also maintain that the mischaracterization of Russell’s crimes as an 

episode of criminal conduct is harmless because a ten-year sentence could otherwise be 

lawfully imposed with these convictions, and the parties could have agreed to cap his 

sentence at ten years without invoking the statute. Thus, they contend that the plea 

agreement survives because the references to the statutory limitation in the plea 

 4

 Although the parties have provided us with supplemental briefs on this issue, the record is 

devoid of evidence whether Russell would have entered into the plea agreement absent the illegal 

sentence.
10

agreement and the sentencing order were surplusage. But we are not inclined to ignore 

the parties’ intent as expressed in the plain language of the agreement. The parties based 

their plea agreement on a statute that they both now concede does not apply.

Further, and significantly, the trial court likewise relied on the statute when it 

accepted the plea agreement and imposed Russell’s sentence. The parties assume that the 

trial court would have approved the plea agreement with the sentence capped at ten years 

without the stated statutory limitation, but we read the trial court’s sentencing order 

differently. The trial court found that, “the nature and circumstances of the crime are 

extreme and aggravate the sentence.” Appellant’s App. at 97. And the court imposed 

three sets of concurrent eight-year sentences with the three sets to be served 

consecutively, for a total executed sentence to the Department of Correction of twentyfour years, after which the court stated, “However, pursuant to the limitation imposed by 

IC § 35-50-1-2, defendant’s aggregate, consecutive sentence is limited to ten (10) 

years[.]” Id. at 98. The sentencing statement indicates that, but for the statutory 

limitation, the trial court would have sentenced Russell to twenty-four years executed. 

Thus, expressly relying on the language of the parties’ plea agreement, the trial court 

incorrectly applied the statutory limitation imposed by Indiana Code Section 35-50-1-2. 

Accordingly, as it stands now, the mistaken statutory reference cannot be severed because 

it was a material element of both the plea agreement and the sentence, and we cannot say 

that Russell, the State, or the trial court would have agreed to or accepted the plea without 

the erroneous language that purported to cap Russell’s sentence. We must conclude that 

the misapplication of the statute was not harmless and, therefore, not severable.
11

In sum, the plea agreement and sentence were based on the faulty premise that 

Russell’s sentence must be limited to ten years under Indiana Code Section 35-50-1-2(c). 

Thus, the sentence imposed pursuant to the plea agreement was an erroneous sentence, 

and we cannot uphold Russell’s plea agreement with the sentencing cap intact. See Lee, 

816 N.E.2d at 38. We reverse Russell’s sentence and remand to the trial court with the 

following instructions: on remand, Russell shall first have the option to ratify and 

proceed with the current plea agreement without the illegal sentencing limitation. If he 

chooses that option and enters an open plea on all five counts, the trial court shall have 

total discretion in resentencing Russell, and he would face a possible maximum sentence 

of fifty-six years.5 If he does not exercise that option within thirty days after this opinion 

has been certified (unless extended by the trial court), the plea agreement shall be 

vacated. See, e.g., Alvey v. State, 911 N.E.2d 1248, 1251 (Ind. 2009) (holding that the 

defendant had the option to keep his plea agreement without an unenforceable provision).

Reversed and remanded with instructions.

VAIDIK, C.J., and BROWN, J., concur.

 5

 In exchange for Russell’s plea, the State dismissed four counts. If Russell rejects the current 

plea agreement and the State reinstates the dismissed counts, Russell’s possible maximum sentence would 

be sixty-eight years. The trial court has discretion to run all of the convictions consecutively in light of 

the aggravators, including the fact that Russell abused his position of trust with each of the three victims.