Court of Appeals of Indiana | Memorandum Decision 43A05

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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 TTORNEYS FOR A PPELLANT Stephen T. Owens Public Defender of Indiana Jonathan O. Chenoweth Deputy Public Defender Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Aaron Brubaker, Appellant

- Petitioner ,

v.


### State of Indiana , Appellee

- Respondent

. O ctober 29, 2015 Court of Appeals Ca se No. 43A05

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- 1301

- FD

- 56

Bradford , Judge
. 

# Case SummaryCourt of Appeals of Indiana | Memorandum Decision 43A05

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[1] In 2013, Appellee

- Respondent the State of Indiana (“the State”) charged Appellant

- Petitioner Aaron Brubaker with four Class D felonies: resisting law enforcement, auto theft, and two counts of theft. The State also charged Brubaker with being a habitual o ffender. The parties entered into a plea agreement by which the State agreed to drop the habitual offender charge and Brubaker pled guilty to the remaining charges. Additionally, the executed portion of Brubaker’s sentence was to be capped at five years. The trial court accepted Brubaker’s plea and sentenced him to a term of five years.

[2] Brubaker subsequently filed a petition for post

- conviction relief (“PCR”) in which he claim ed that the five

- year sentence imposed by the trial court was illegal because his crimes constituted a single episode of criminal conduct and, therefore, the maximum aggregate sentence allowed for his four convictions was four years. The State argues that even if the sentence is illegal, Brubaker agreed to the illegal sentence in h is plea agreement and so is bound by that agreement. We affirm.



# Facts and Procedural History

[3] On January 23, 2013, Brubaker was charged with Class D felony resisting law enforcement, Class D felony auto theft, and two counts of Class D felony theft. He was also alleged to be a habitual offender. (App. 1) The parties entered into a plea agreement by which the State agreed to drop the habitual offender charge and Brubaker pled guilty to the remaining charges. (App. 9 7) The relevant portion s of the plea agreement read as follows:Court of Appeals of Indiana | Memorandum Decision 43A05

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[T]here is no limitation upon the Court ’ s authority to impose any sentence or dispositional alternative authorized under the law...; and that the Court may enter any lawful sentence whether pr esumptively or alternatively provided, and whether by way of mitigation or aggravation. The State of Indiana does agree that the initial executed sentence will not exceed five (5) years (total after consecutive sentencing on each count). Each count ’ s sen tence shall run consecutive ....The Court may, however, impose a longer sentence of impriso nment either by providing for presumptive sentence or by way of aggravation but that any such sentence so imposed which exceeds the number months which may be imposed u nder this agreement as an original executed prison term shall be suspended by the Court....

* * * * The Defendant knowingly, intelligently, and voluntarily waives his right to appeal any sentence imposed by the trial court that is within the range set forth in this plea ag reement, and waives his right to have the Court of Appeals review his sentence under Indiana Appellate Rule 7(B). Appellant ’ s App. p. 97

- 98.

[4] On October 24, 2013, t he trial court accepted the plea agreement and sentenced Brubaker to one

- and

- a - half year consecutive terms on each conviction , resulting in an aggregate six

- year term. (App. 7) The trial court later amended the judgment to shorten the sentence on one of Brubaker ’ s theft convictions to six months, reducing the aggregate sentence to five years. (App. 8) On June 11, 2014, Brubaker filed a PCR petition. (App. 9) The parties then filed competing motions for summary judgment. (App. 10

- 11) On June 8, 2015, the post

conviction court entered an order denying Brubaker ’ s PCR petition. Brubaker appeals.Court of Appeals of Indiana | Memorandum Decision 43A05

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# Discussion and Decision

[5] Pursuant to Post

- Conviction Rule 1(4)(g) 1 , the post

- conviction court granted the
State ’ s motion for summary disposition. “A n appellate court reviews the grant of a motion for summary disposition in post

- conviction proceedings on appeal in the same way as a motion for summary judgment. ” Norris v. State , 896 N.E.2d 1149, 1151 (Ind. 2008) ( citing Allen v. State , 791 N.E.2d 748, 752 (Ind.
Ct. App. 2003), trans. denied )

. “ Thus summary disposition, like s ummary judgment, is a matter for appellate de novo determination when the determinative issue is a matter of law, not fact. ” Id . (citing Burnside v. State , 858 N.E.2d 232, 237 (Ind. Ct. App. 2006) ).

[6] Brubaker argues that his five

- year sentence violates th e statutory limitation on consecutive sentences for crimes arising from a single episode of criminal conduct under Indiana Code section 35

- 50

- 1

- 2(c) (2013) , which provide d that
except for crimes of violence, the total of the con secutive terms of imprisonm ent... to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the per son has been convicted.

1 “ The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ” P

- C.R. 1(4)(g).Court of Appeals of Indiana | Memorandum Decision 43A05

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The State acknowledged at the post

- conviction court that, pursuant to this statute, the maximum sentence Brubaker could have receiv ed for the four Class D felony convictions was four years 2 (the advisory term for a Class C felony) b ut argues that Brubaker consented to the unlawful sentence in his plea agreement and so he cannot now dispute that sentence. (App. 103)

[7] In Lee v. State , the State charged Lee with Class C felony robbery and alleged that he was a habitual offender. 816 N .E.2d 35, 37 (Ind. 2004) . Under the terms of a plea agreement, Lee pled guilty to robbery in exchange for the State ’ s dismissal of the habitual offender allegation . T he trial court sentenced Lee , pursuant to the terms of the plea, to a t erm of eight years imprisonment to run consecutively to a three

- year sentence Lee was serving for an unrelated theft conviction. At the time of sentencing, the trial court lacked statutory authority to order the sentences to be served concurrently. Id

. Nonetheless, t he Indiana Supreme Court upheld the illegal sentence.
The record shows that the evidence against Lee on the charge of robbery was overwhelming. By agreeing to plead guilty to the charge in exchange for the State dismissing an habitual offender allegation , Lee reduced his penal exposure by thirty years. See Ind. Code 35

- 50

- 2

- 8(e).... Under some circumstances, the appropriate remedy to address an illegal sentence like the one here is to sever the illegal sentencing provision from the plea agreement, and reman d the cause to the

2 On appeal, the State claims that it only accepted Brubaker ’ s allegations that his offenses constituted a “single episode” of criminal conduct under Indiana Code section 35

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- 1

- 2(c) for purpo ses of obtaining a summary disposition at the post

- conviction court and that it does not concede the issue.Court of Appeals of Indiana | Memorandum Decision 43A05

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trial court with instructions to enter an order running the sentences concurrently. However Lee is entitled to no such relief. A defendant “may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence.” Collins v. State , 509 N.E.2d 827, 833 (Ind. 1987). As this Court has more recently explained: “[D]efendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category .” Davis v. State , 771 N.E.2d 647, 649 n. 4 (Ind. 2002) (citation and quotation omitted).
Id . at 39 (emphasis added, footnote omitted); see also Crider v. State , 984 N.E.2d 618, 623 (Ind. 2013) (“[I]n Indiana, a defendant can waive his right to appeal an illegal s entence....[W] here a plea agreement provides for the illegality later challenged, a valid waiver contained therein will be upheld. ”); see also Games v.
State , 743 N.E.2d 1132, 1135 (Ind. 2001) (“ [A] defendant with adequate counsel who enters a plea agreement to achieve an advantageous position must keep the bargain. Once the defendant bargains for a reduced charge, he cannot then challenge the sent ence on double jeopardy grounds.”); see also Stites v. State , 829 N.E.2d 527 (Ind. 2005) ( concluding that althoug h the trial court lacked statutory authority to order consecutive sentences under the circumstances, it had such authority by the terms of a plea agreement, and the defendant could not be heard to complain because she ha d benefited from that agreement).

[8] B rubaker acknowledges that he received a benefit by the State ’ s agreement to drop the habitual offender charge. Brubaker also acknowledges that “ when aCourt of Appeals of Indiana | Memorandum Decision 43A05

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defendant explicitly agrees to a particular sentence or a specific method of imposition of sentences, wh ether or not the sentence or method is authorized by the law, he cannot later appeal such sentence on the ground that it is illegal.” Appellant ’ s App. p. 113 (quoting Crider , 984 N.E.2d at 625). However, Brubaker argues that his plea agreement “did not call for an illegal sentence; it called for the trial court to impose ‘ any lawful sentence ’ of no more than 5 years.” Appellant ’ s App. p. 114.

[9] Brubaker essentially argues t hat he did not agree to the illegal sentence imposed by the trial court. We disagree. T he plea agreement which Brubaker agreed to explicitly authorized the trial court to impose a sentence in excess of four years

. Specifically, t he agreement provided th at “ t he initial executed sentence will not exceed five (5) years (total after consecutive sentencing on each count),” and that “The Court may, however, impose a longer sentence of imprisonment either by providing for presumptive sentence or by way of aggra vation.” Appellant ’ s App. p. 97

- 98. Brubaker “waive[d] his right to appeal any sentence imposed by the trial court that is within the range set forth in this plea agreement.” Appellant’s App. p. 98. T he only logical reading of this agreement is that Br ubaker consented to receiving a sentence potentially greater than four years

. Therefore, we conclude that Brubaker consented to the unlawful sentence and so has waived his right to appeal his sentence on that basis

.

[10] The judgment of the post

- conviction c ourt is affirmed.Court of Appeals of Indiana | Memorandum Decision 43A05

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M ay, J., and Crone, J., concur.