Court of Appeals of Indiana | Memorandum Decision 43A05-1507-PC-769 | October 29, 2015 Page 1 of 8

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.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Jonathan O. Chenoweth

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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.

October 29, 2015

Court of Appeals Case No.

43A05-1507-PC-769

Appeal from the Kosciusko 

Superior Court 

The Honorable David C. Cates, 

Judge

Trial Court Cause No.

43D01-1301-FD-56

Bradford, Judge.

Case Summary 
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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 offender. 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 claimed 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 his 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. 97) The relevant 

portions of the plea agreement read as follows: 
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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 

presumptively 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 

sentence shall run consecutive....The Court may, however, 

impose a longer sentence of imprisonment 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 under 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 agreement, 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, the 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 postconviction court entered an order denying Brubaker’s PCR petition. Brubaker 

appeals. 
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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. “An 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 summary 

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 the 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 provided that 

except for crimes of violence, the total of the consecutive terms of 

imprisonment...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 person 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). 
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The State acknowledged at the post-conviction court that, pursuant to this 

statute, the maximum sentence Brubaker could have received for the four Class 

D felony convictions was four years2(the advisory term for a Class C felony) 

but 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. The trial court sentenced Lee, 

pursuant to the terms of the plea, to a term 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, the 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 remand 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 35-50-1-2(c) for purposes of obtaining a 

summary disposition at the post-conviction court and that it does not concede the issue. 
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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 sentence....[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 sentence on double jeopardy grounds.”); see also Stites v. State, 829 

N.E.2d 527 (Ind. 2005) (concluding that although 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 had benefited from that agreement). 

[8] Brubaker acknowledges that he received a benefit by the State’s agreement to 

drop the habitual offender charge. Brubaker also acknowledges that “when a 
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defendant explicitly agrees to a particular sentence or a specific method of 

imposition of sentences, whether 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 that he did not agree to the illegal sentence imposed 

by the trial court. We disagree. The plea agreement which Brubaker agreed to 

explicitly authorized the trial court to impose a sentence in excess of four years. 

Specifically, the agreement provided that “the 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 aggravation.” 

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. The only logical reading of this 

agreement is that Brubaker 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 court is affirmed. 
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May, J., and Crone, J., concur.