Court of Appeals of Indiana | Memorandum Decision 15A01

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### MEMORANDUM DECISION

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.

A TTORNEY FOR A PPELLANT

Mark Small

Indianapolis, Indiana A TTORNEYS FOR A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General



### I N T H E



# COURT OF APPEALS OF INDIANA

Sean R. Schaffer,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff November 10, 2015

Court of Appeals Case No.

15A01

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- 136

Appeal from the Dearborn

Superior Court 2

The Honorable J. Steven Cox,

Special Judge

Trial Court Cause No.

15D02

- 1409

- F6

- 408

Altice, Judge.

Case SummaryCourt of Appeals of Indiana | Memorandum Decision 15A01

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- 136 | November 10, 2015 Page 2 of 5 [1] Sean R. Schaffer appeals his conviction following a plea of guilty to Official

Misconduct, 1 a Level 6 felony. On appeal, Schaffer argues that his conviction is

void because no written plea agreement was made part of the record.

[2] We affirm.

Facts & Procedural History

[3] Throughout most of 2014, Schaffer worked as a probation officer in Dearborn

County. While performing his duties, Schaffer stole hydrocodone tablets from

a probationer under his supervision. As a result, Schaffer was charged with

official misconduct and two counts of theft. Schaffer subsequently entered into

a written plea agreement with the State, pursuant to which Schaffer would

plead guilty to official misconduct in exchange for the dismissal of the theft

charges and sentencing would be left to the discretion of the trial court. A

guilty plea hearing was held on October 1, 2014, at which the trial court was

apparently presented with a copy of the written plea agreement. The trial court

expressed uncertainty as to the need for a plea agreement, noting that the

agreement did not bind the court to anything. Defense counsel explained that

the agreement was a product of “charge bargaining as opposed to plea

bargaining[.]” Transcript at 9

. The court read the plea agreement into the

record and confirmed that Schaffer understood its terms. After the State

established a factual basis, Schaffer withdrew his preliminary plea of not guilty

1 Ind. Code § 35

- 44.1

- 1

- 1.Court of Appeals of Indiana | Memorandum Decision 15A01

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- 136 | November 10, 2015 Page 3 of 5 to official misconduct and pled guilty pursuant to the plea agreement. The trial

court accepted Schaffer’s guilty plea, granted the State’s motion to dismiss the

theft charges, and set the matter for a separate sentencing hearing.

[4] At the sentencing hearing, the trial court acknowledged that Schaffer had pled

guilty to official misconduct, but stated that it did not understand the negotiated

plea agreement and did not recall accepting it. Defense counsel again explained

that the parties’ intention was to “charge bargain”, i.e., that Schaffer would

plead guilty to official misconduct in exchange for the dismissal of the theft

charges, and that sentencing would be left to the trial court’s discretion. Id. at

29. Defense counsel stated that he was uncertain as to whether the plea

agreement had been formally rejected or accepted. The State again moved to

dismiss the theft charges, which the trial court granted. The State and defense

then presented evidence and argument on sentencing. The trial court ultimately

sentenced Schaffer to two and one

- half years in the Department of Correction,

with six months suspended to probation. Schaffer now appeals.

Discussion & Decision

[5] On appeal, Schaffer argues that his conviction is void because no written plea

agreement was properly filed with the court, as required by Ind. Code § 35

- 35

- 3

-

3. It is well settled, however, that a person who pleads guilty cannot challenge

his conviction on direct appeal. Robey v. State

, 7 N.E.3d 371, 383 (Ind. Ct. App.

2014) (citing Kling v. State

, 837 N.E.2d 502, 504 (Ind. 2005), and Tumulty v.

State

, 666 N.E.2d 394, 394

- 95 (Ind. 1996)), trans. denied

. This is the case evenCourt of Appeals of Indiana | Memorandum Decision 15A01

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- 136 | November 10, 2015 Page 4 of 5 when the record would otherwise be adequate to resolve the issue presented.

Tumulty

, 666 N.E.2d at 395

- 96. Instead, claims of error in the acceptance of a

guilty plea must be presented through a petition for post

- conviction relief under

Indiana Post

- Conviction Rule 1. Id. Therefore, even assuming arguendo that

the requirements of I.C. § 35

- 35

- 3

- 3 were not satisfied, we must affirm

Schaffer’s conviction.

[6] Schaffer also argues in passing that the trial court erred in sentencing him.

“Alt hough a person who pleads guilty is not permitted to challenge the

propriety of a conviction on direct appeal, he or she is generally entitled to

contest the merits of the trial court’s sentencing decision when the trial court

exercises its discretion.” Holsclaw v. State

, 907 N.E.2d 1086, 1088 (Ind. Ct. App.

2009). In this case, Schaffer does not argue that his sentence is inappropriate

pursuant to Indiana Appellate Rule 7(B) or in excess of the statutory maximum.

Instead, he argues that the trial court erred in sentencing him beyond the

advisory sentence recommended by the State at the sentencing hearing. In

support of this argument, Schaffer cites St. Clair v. State

, 901 N.E.2d 490, 493

- 94

(Ind. 2009), in which our Supreme Court held that, under the facts of that case,

a written plea agreement providing that the State would “recommend” a

particular sentence was intended to be a fixed plea agreement, under which the

trial court was bound to impose the specified sentence. St. Clair is inapposite.

It is clear from the record that the plea agreement in this case, regardless of

whether it was oral or written, contained no sentencing recommendation and

left sentencing to the trial court’s discretion. The State’s ve rbalCourt of Appeals of Indiana | Memorandum Decision 15A01

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- 136 | November 10, 2015 Page 5 of 5 recommendation at the sentencing hearing did nothing to change the terms of

the plea agreement.

[7] Judgment affirmed.

[8] Riley, J., and Brown, J., concur.