FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JEFFREY D. STONEBRAKER GREGORY F. ZOELLER

Clark County Chief Public Defender Attorney General of Indiana

Jeffersonville, Indiana

HENRY A. FLORES, JR.

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

NATHAN CARL GILBERT, )

)

Appellant-Defendant, )

)

vs. ) No. 10A05-1204-CR-220

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE CLARK CIRCUIT COURT

The Honorable Vicki L. Carmichael, Judge

Cause No. 10C04-0905-FB-132

February 22, 2013

OPINION - FOR PUBLICATION

MAY, Judge
2

Nathan Gilbert appeals his convictions of and sentences for four counts of Class B 

felony burglary.1 He presents two issues for our review:

1. Whether the trial court erred when it denied Gilbert’s motion to dismiss based on 

alleged violation of his rights under the Interstate Agreement on Detainers (IAD); and

2. Whether the manner in which the trial court conducted Gilbert’s sentencing hearing 

violated his Fourteenth Amendment right to due process.

We affirm in part, reverse in part, and remand. 

FACTS AND PROCEDURAL HISTORY2

On May 5, 2009, while Gilbert was serving a sentence in Kentucky, the State of 

Indiana charged him with four counts of Class B felony burglary. Consistent with the IAD, 

Gilbert was returned to Indiana to resolve the burglary charges in accordance with the IAD, 

which provides:

The contracting states solemnly agree that:

Article I

The party states find that charges outstanding against a prisoner, detainers 

based on untried indictments, informations, or complaints, and difficulties in 

securing speedy trial of persons already incarcerated in other jurisdictions, 

produce uncertainties which obstruct programs of prisoner treatment and 

rehabilitation. Accordingly, it is the policy of the party states and the purpose 

of this agreement to encourage the expeditious and orderly disposition of such 

charges and determination of the proper status of any and all detainers based 

on untried indictments, informations or complaints. The party states also find 

that proceedings with reference to such charges and detainers, when emanating 

from another jurisdiction, cannot properly be had in the absence of cooperative 

procedures. It is the further purpose of this agreement to provide such 

cooperative procedures.

 

1

Ind. Code § 35-43-2-1(1).

2 We heard an oral argument on December 12, 2012, at the Ivy Tech campus in Sellersburg, Indiana. We thank 

Ivy Tech for hosting the oral argument and commend counsel on their presentations.
3

Ind. Code § 35-33-10-4. Gilbert pled guilty to all four counts on January 9, 2012. The trial 

court accepted Gilbert’s pleas, ordered the preparation of a pre-sentence investigation report, 

and scheduled Gilbert’s sentencing hearing for February 21.

At some point prior to the sentencing hearing, Gilbert was returned to Kentucky and 

his sentencing hearing did not occur as scheduled. On February 24, Gilbert filed a motion to 

dismiss the Indiana charges against him pursuant to the “anti-shuffling” provision of the 

IAD, which states in relevant part:

(e) If trial is not had on any indictment, information or complaint contemplated 

hereby prior to the prisoner’s being returned to the original place of 

imprisonment pursuant to Article 5 (e) hereof, such indictment, information or 

complaint shall not be of any further force or effect, and the court shall enter 

an order dismissing the same with prejudice.

Ind. Code § 35-33-10-4, Art. IV(e). After a hearing, the trial court denied Gilbert’s motion to 

dismiss and rescheduled his sentencing hearing for March 27. Gilbert’s counsel filed a 

motion to continue the sentencing hearing, and the trial court then rescheduled sentencing for 

April 16.

In the meantime, seemingly unbeknownst to counsel or the trial court, the Governors’

offices of Indiana and Kentucky were in communication about Gilbert’s situation. On March 

21, the Governor of Kentucky approved a request from the Governor of Indiana to return 

Gilbert to Indiana for sentencing, and Kentucky returned Gilbert to Indiana on March 28 for 

a forty-eight hour period. The trial court immediately convened a sentencing hearing. 

Gilbert’s counsel of record, Niles Driskell, was on vacation March 28, so the trial court 
4

contacted another local attorney, Christopher Sturgeon, to represent Gilbert at the sentencing 

hearing.

At the hearing, Sturgeon objected to the timing of the proceedings, noting he had 

received notice of the hearing only one day before and asserting he did not have enough time 

to prepare. Gilbert argued he was denied certain due process protections because he was not 

given adequate notice of the sentencing hearing and could not present witnesses, review the 

statements made in the pre-sentence investigation report or prepare for the hearing. 

Over Gilbert’s objections, the trial court held the sentencing hearing, saying, “I do feel 

constrained by the executive order that indicates that Mr. Gilbert needs to be returned to 

Kentucky by this afternoon and so, I am going to go forward with the sentencing today.” (Tr. 

at 29.) The trial court sentenced Gilbert to four consecutive ten-year sentences for each 

count of burglary, with ten years suspended. The trial court ruled five of the suspended years 

were to be served through community corrections or a similar program, and five years served 

on probation. The trial court then advised Gilbert he could file a motion to reconsider the 

sentence within two weeks. Gilbert did not do so, and this appeal ensued.

DISCUSSION AND DECISION

1. Interstate Agreement on Detainers

When indicted in Indiana for these four counts of Class B felony burglary, Gilbert was 

incarcerated in Kentucky. As the proceedings were subject to the provisions of the IAD, the 

denial of a motion to dismiss is a question of law reviewed de novo. Conn v. State, 831 

N.E.2d 828, 830 (Ind. Ct. App. 2005), trans. denied. Gilbert argues dismissal was required
5

because the proceedings violated the “anti-shuffling” provision of the IAD when he was 

returned to Kentucky after he entered a plea of guilty to the charges against him, but before 

the trial court accepted that plea and sentenced him. Therefore, Gilbert asserts, the issue on 

appeal is “whether the term ‘trial’ in the IAD anti-shuffling provisions includes entering 

judgments of convictions and sentencing.” (Br. of Appellant at 12.) This specific issue 

appears to be one of first impression in Indiana. 

Gilbert acknowledges most jurisdictions have held the IAD’s anti-shuffling provision 

is not violated when a defendant istransferred back to the state of origin after pleading guilty 

but prior to sentencing. For example, the Maryland Court of Special Appeals held:

But the term “trial” in Article III, as well as in Article IV, does not encompass 

sentencing. If it did, then the anti-shuffling provision of Article III, as well as 

of Article IV, would have addressed, we can assume, unsentenced convictions, 

as it does “untried indictments, informations, or complaints.” It does not, and 

thus we conclude that a “trial,” for the purposes of the IAD, refers to the 

resolution of charges and not necessarily to the imposition of sentence.

Painter v. State, 848 A.2d 692, 703 (Md. Ct. Spec. App. 2004). See also United States v. 

Coffman, 905 F.2d 330, 333 (10th Cir. 1990) (holding sentencing not included in the term 

“trial” because “[t]ransferring a prisoner after trial but before sentencing does not implicate 

the prisoner rehabilitation concerns animating the IAD to the same degree as pre-trial 

transfers”). And see State v. Lewis, 422 N.W.2d 768, 772 (Minn. Ct. App. 1988) (antishuffling provision of the IAD not violated when Lewis was returned to federal prison 

pending sentencing on state charge); and People ex rel. Harrist v. Dalsheim, 442 N.Y.S.2d 

906, 907 (N.Y. Sup. Ct. 1981) (anti-shuffling provision of the IAD not violated when Harrist 
6

returned to Massachusetts prison after pleading guilty to New York charge but before

sentencing). 

The instant case is similar to People v. Barnes, 287 N.W.2d 282 (Mich. Ct. App. 

1980). Barnes was simultaneously charged in federal and state jurisdictions with delivery of 

heroin. He entered a plea of guilty in federal court prior to his trial in state court, and he was 

incarcerated in the federal penitentiary in Michigan. Barnes was later returned to state court, 

where he pled guilty, but then was returned to the federal penitentiary prior to being 

sentenced for the state charge. Barnes appealed his conviction and sentence, claiming his 

return to the federal penitentiary prior to his sentencing hearing on the state charge violated 

the anti-shuffling provision of the IAD. The Michigan Court of Appeals rejected his 

argument: 

The penalty set forth in Article IV(e) for violation of the statute is that “such 

indictment, information or complaint shall not be of any further force or effect, 

and the court shall enter an order dismissing the same with prejudice.” This 

language suggests that Congress only intended to include pre-conviction 

proceedings. Otherwise Congress would have included in the penalty clause 

language that the conviction or the sentence be vacated. Once a guilty verdict 

is returned or a guilty plea accepted, the instruments referred to in Article 

IV(e), (“indictment, information or complaint”) are no longer viable 

functioning documents. Realistically, the conviction discharges the 

instrument. Thus, we believe Congress intended the “trial” to end when a 

conviction was entered or a plea was accepted and did not intend to include 

post-conviction proceedings within the detainer statute.

Id. 

Gilbert argues his case is distinguishable from those decisions that hold the IAD’s 

anti-shuffling provision is not violated when a defendant is transferred back to the state of 
7

origin after pleading guilty but prior to sentencing, because the alleged violations of the IAD 

occurred after his guilty plea, but before the trial court entered a judgment of conviction. At 

the guilty plea hearing, the trial court took the pleas under advisement, ordered a PreSentence Investigation, and set sentencing for February21, 2012. It entered a judgment of 

conviction on March 28, 2012, the same day as the rescheduled sentencing hearing. Gilbert 

argues because the trial court did not accept his guilty pleas and enter a judgment of 

conviction at the time of his guilty plea hearing, the proceedings were still subject to the antishuffling provision of the IAD and the charges against him should have been dismissed.

However, as Gilbert himself points out, while a judge may reject a guilty plea, see 

Snyder v. State, 500 N.E.2d 154, 157 (Ind. 1986) (trial court may reject defendant’s guilty 

plea in the exercise of sound discretion), “this is not as likely when a defendant enters blind 

pleas3compared to a plea agreement whose terms the court might not wish to accept.” 

(Reply Br. of Appellant at 6) (footnote added). Ind. Code § 35-35-1-2 requires:

(a) The court shall not accept a plea of guilty or guilty but mentally ill at the 

time of the crime without first determining that the defendant:

(1) understands the nature of the charge against the defendant;

(2) has been informed that by the defendant’s plea the defendant waives 

the defendant’s rights to:

(A) a public and speedy trial by jury;

(B) confront and cross-examine the witnesses against the 

defendant;

(C) have compulsory process for obtaining witnesses in the 

defendant’s favor; and

(D) require the state to prove the defendant’s guilt beyond a 

reasonable doubt at a trial at which the defendant may not be 

compelled to testify against himself or herself;

 

3 A “blind plea” is a “guilty plea made without the promise of a concession from either the judge or the 

prosecutor.” Black’s Law Dictionary 1171 (7th ed. 1999).
8

(3) has been informed of the maximum possible sentence and minimum 

sentence for the crime charged and any possible increased sentence by 

reason of the fact of a prior conviction or convictions, and any 

possibility of the imposition of consecutive sentences;

(4) has been informed that the person will lose the right to possess a 

firearm if the person is convicted of a crime of domestic violence (IC 

35-31.5-2-78); and

(5) has been informed that if:

(A) there is a plea agreement as defined by IC 35-31.5-2-236; 

and

(B) the court accepts the plea;

the court is bound by the terms of the plea agreement.

The record indicates the trial court advised Gilbert of the rights he waived by pleading guilty.

Gilbert pled guilty without the benefit of a plea agreement, and the trial court indicated at the 

hearing that it accepted Gilbert’s pleas. Therefore, there was nothing left to do in the case 

except to sentence Gilbert.

We adopt the reasoning followed by a majority of state and federal jurisdictions and 

hold Gilbert was no longer subject to an “untried indictment” because he had pled guilty.

4

 As 

the only matter left for the trial court to decide was Gilbert’s sentence, the IAD’s antishuffling provision was not violated when Gilbert was returned to Kentucky after his guilty 

plea but before sentencing.

2. Sentencing

Gilbert also argues he should be resentenced because his due process rights were 

violated when he was not given adequate notice of his sentencing hearing and could not 

 

4

In adopting the position of the majority of jurisdictions, we reject the holding in Tinghitella v. California, 718

F.2d 308, 311 (9th Cir. 1983), in which the Ninth Circuit Court of Appeals held sentencing to be part of the 

defendant’s trial and subject to the provisions of the IAD.
9

adequately review his pre-sentence investigation report.

5

 “Before sentencing a person for a 

felony, the court must conduct a hearing to consider the facts and circumstances relevant to 

sentencing. The person is entitled to subpoena and call witnesses and to present information 

in his own behalf.” Ind. Code § 35-38-1-3.

Gilbert was returned to Indiana for a forty-eight hour period and had less than twentyfour hours notice of his sentencing hearing. During the forty-eight hours before the hearing, 

Gilbert submitted to the pre-sentence investigation. Neither Gilbert nor his counsel saw the 

pre-sentence investigation report until the day of the sentencing hearing. They had only a 

few minutes during the hearing to review the report. Ind. Code § 35-38-1-12(b) states in 

relevant part, “The court shall furnish the factual contents of the presentence investigation or 

a copy of the presentence report sufficiently in advance of sentencing so that the defendant 

will be afforded a fair opportunity to controvert the material included.”

Because Gilbert’s stay in Indiana was so short, his due process rights were violated 

because he did not have enough time to prepare for his sentencing hearing or to properly 

examine his pre-sentence investigation report. Therefore, we remand to the trial court for 

resentencing.

6

 

 

5 Gilbert also asserts he was denied his constitutional right to counsel at sentencing when the trial court 

required a new lawyer assist him at sentencing with less than forty-eight hours notice. Because we reverse his 

sentencing for due process violations, we need not determine whether he also was denied his right to counsel at 

sentencing. See Sheron v. State, 682 N.E.2d 552, 553 (Ind. Ct. App. 1997) (“As a matter of jurisprudence, 

courts will not decide constitutional issues when a case can be decided on other grounds.”).

6

 While we remand for resentencing, we acknowledge the constraints the trial court faced by virtue of the 

actions of the Kentucky and Indiana executive branches independent of the litigation. The record reflects the 

trial court performed to the best of its ability under the circumstances, and our decision is not a reflection on 

the trial court’s fairness or capability. It is instead meant to right a procedural wrong that was beyond the trial 

court’s control.
10

CONCLUSION

Gilbert’s return to Kentucky following his guilty plea hearing but before his 

sentencing hearing did not violate the IAD anti-shuffling provision because sentencing is not 

included in those parts of criminal proceedings protected as part of the IAD; we therefore 

affirm Gilbert’s convictions of four counts of Class B felony burglary. However, Gilbert’s 

due process rights were violated because he did not have enough time to examine his presentence investigation report, call witnesses, or otherwise prepare for his sentencing hearing. 

We accordingly reverse his sentences and remand to the trial court for resentencing.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and NAJAM, J., concur.