Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-302 | April 20, 2015 Page 1 of 11

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.

ATTORNEY FOR APPELLANT

Stanley L. Campbell

Fort Wayne. Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Zachery A. Doan,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 20, 2015

Court of Appeals Case No.

02A03-1408-CR-302

Appeal from the 

Allen Superior Court 

The Honorable Frances C. Gull, 

Judge

The Honorable Samuel R. Keirns,

Magistrate

Cause No. 02D04-1403-FA-14

Kirsch, Judge.
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[1] Pursuant to an oral plea agreement, Zachery A. Doan was convicted of 

burglary1 as a Class A felony and robbery2 as a Class A felony. Doan now 

appeals, contending that the trial court violated the terms of his plea agreement 

when, at the time of sentencing, it reduced his burglary conviction from a Class 

A felony to a Class B felony and sentenced him to consecutive sentences.

[2] We affirm.

Facts and Procedural History

[3] In March 2014, eighty-year-old N.B. answered a knock at her door to find her 

neighbor’s nephew Doan standing there. At Doan’s request, N.B. reluctantly 

allowed him to use her bathroom. As he left, Doan said that his car was out of 

gas. N.B. told Doan he could use the gas can in her garage, but a few minutes 

later Doan returned saying that the gas can was broken. When Doan asked to 

use her phone, N.B. refused to allow Doan inside. Doan pounded on N.B.’s 

front door and demanded that she give him a ride, but N.B. told Doan to go to 

his relative’s house next door. Ultimately, Doan broke down N.B.’s back door, 

attacked her, and hit her repeatedly in the face. N.B. lost consciousness. Doan 

stole $100 in cash, N.B.’s cell phone, and her identification cards. As a result of 

 

1

See Ind. Code § 35-43-2-1. We note that, effective July 1, 2014, a new version of the criminal statutes at 

issue in this case were enacted. Because Doan committed his crimes prior to July 1, 2014, we will apply the 

statutes in effect at the time he committed his crimes. 

2

See Ind. Code § 35-42-5-1.
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Doan’s attack, N.B. suffered multiple fractures to her face, lost one eye 

completely, and lost vision in both of her eyes.

[4] Doan was charged with: Count I, burglary of a dwelling resulting in bodily 

injury as a Class A felony; Count II, robbery resulting in serious bodily injury as 

a Class A felony; and Count III, aggravated battery as a Class B felony. The 

same bodily injury to N.B. was used to enhance Counts I and II to Class A 

felonies. About two weeks before trial, the trial court held a guilty plea hearing 

and the following exchange occurred between the trial judge and Doan:

Q. You’re pleading guilty to two (2) class A felonies. The range of 

penalty is twenty (20) years to fifty (50) years. There is an advisory 

sentence of thirty (30) years, and a fine of up to ten thousand dollars 

($10,000.00). Do you understand the range of the penalties and 

possible fines?

A. Yes your honor.

Q. Do you understand that if you have a prior conviction the prior 

conviction may increase the sentence or prevent the Court from 

suspending the sentence?

A. Yes Your Honor.

Q. Do you understand that I will decide whether the terms of prison 

shall be served concurrently or consecutively?

A. Yes Your Honor.

Guilty Plea Tr. at 8. The State clarified that Doan was pleading guilty only to 

Counts I and II, “Your Honor, at sentencing the State will agree to dismiss 

Count III.” Id. at 7.

[5] Doan pleaded guilty to Class A felony burglary and Class A felony robbery and 

a factual basis was established. Guilty Plea Tr. at 7. The trial court found that 
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Doan understood the nature of the charges against him and the possible 

sentences and fines thereon, and accepted Doan’s guilty plea.3 Id. at 13. At the 

request of the State, and in recognition that the double enhancement created a 

double jeopardy concern, the trial court reduced Doan’s Class A felony 

burglary conviction to a Class B felony conviction and sentenced him to twenty 

years for Class B felony burglary and fifty years for Class A felony robbery. 

The trial court ordered the sentences to run consecutive to each other for an 

aggregate executed sentence of seventy years. Doan was also ordered to pay 

restitution in the amount of $21,470.00. As promised in the plea agreement, the 

trial court granted the State’s motion to dismiss Count III. Sentencing Tr. at 40. 

Doan now appeals.

Discussion and Decision

[6] Doan contends that the trial court violated the terms of his plea agreement 

when, at the time of sentencing, it impermissibly reduced his burglary 

conviction from a Class A felony to a Class B felony, and ordered that his 

sentences run consecutive to each other.

4

 Doan is not appealing the 

 

3 The trial court did not order the presentence investigation report until after it had accepted Doan’s guilty 

plea. Guilty Plea Tr. at 13. We remind the trial court that “[i]n accepting a felony guilty plea[,] the preferred 

procedure is to defer acceptance of a guilty plea and plea agreement and entry of judgment until the court has 

had the opportunity to review the presentence report.” Benson v. State, 780 N.E.2d 413, 420 n.5 (Ind. Ct. 

App. 2002), trans. denied; see Malenchik v. State, 928 N.E.2d 564, 568 (Ind. 2010) (for all felonies, except Class 

D felonies, trial court may not accept defendant’s guilty plea or sentence defendant until it considers written 

pre-sentence report prepared by probation officer).

4 Doan’s plea agreement was not in writing; instead, it was orally entered into the record during the guilty 

plea hearing. We note that, while a plea agreement in a misdemeanor case may be submitted orally to the 

court, “[n]o plea agreement may be made by the prosecuting attorney to a court on a felony charge except: 

(1) in writing; and (2) before the defendant enters a plea of guilty.” Ind. Code § 35-35-3-3. Doan made no 
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appropriateness of his sentence under Trial Rule 7(B). Instead, he contends that 

it was error for the trial court to reduce his Class A felony conviction in order to 

remedy any double jeopardy violation, thereby allowing the trial court to order 

Doan’s sentences to run consecutive to each other.

[7] We first note that Doan may have waived this issue. During the sentencing 

hearing, the State requested that Count I be reduced to a Class B felony 

burglary conviction to remove the element of the underlying injury and, thus,

remove a double jeopardy violation. The trial court asked defense counsel if he 

had any response. Instead of addressing the specific issue of the reduction of 

the felony conviction, defense counsel merely argued that Doan’s sentences 

should run concurrently because the two events constituted “one continuous 

act.” Sentencing Tr. at 31. Because the State does not contend that Doan has 

waived his right to contest the trial court’s act of modifying the plea agreement 

to reduce the “A” felony conviction to a “B” felony conviction, we address 

Doan’s argument.

5

 

objection to the form of the plea agreement, and the trial court accepted Doan’s oral plea. While the nature 

of Doan’s plea has no impact on the resolution of the issue before us, we emphasize the need for plea 

agreements on felony charges to be in writing.

5 Citing to Mapp v. State, the State notes that Doan has waived his right to challenge his plea on the grounds 

that it constitutes a double jeopardy violation. 770 N.E.2d 332, 334 (Ind. 2002) (holding defendant waived 

right to challenge plea agreement on double jeopardy grounds and there is no exception even for “facially 

duplicative” charges). While we agree with this statement, we note that Doan is not directly challenging his 

guilty plea; instead he is challenging the trial court’s act of modifying his plea agreement to reduce his 

burglary conviction from a Class A felony to a Class B felony. 
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[8] “Our courts have long held that plea agreements are in the nature of contracts 

entered into between the defendant and the State.” Grider v. State, 976 N.E.2d 

783, 785 (Ind. Ct. App. 2012) (citing Lee v. State, 816 N.E.2d 35, 38 (Ind.

2004)).

A plea agreement is contractual in nature, binding the defendant, the 

[S]tate, 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 the plea 

agreement, it shall be bound by its terms.

Id. at 785-86 (quoting Lee, 816 N.E.2d at 38 (citation omitted)). Accordingly, 

“we will look to principles of contract law when construing plea agreements to 

determine what is reasonably due to the defendant.” Id. at 786. The primary 

goal of contract interpretation is to give effect to the parties’ intent. Id. (citing 

Griffin v. State, 756 N.E.2d 572, 574 (Ind. Ct. App. 2001), trans. denied). 

[9] During the guilty plea hearing, the trial court confirmed with Doan that he was 

not under the influence of drugs or alcohol, that he knew his rights and the 

rights he was giving up by pleading guilty, and that he had not been forced or 

threatened to plead guilty. Guilty Plea Tr. at 5-6, 9. The trial court then 

confirmed with Doan that he understood: (1) the State would dismiss Count III 

at sentencing; (2) he was pleading guilty to two Class A felonies, with the range 

of sentencing for each being twenty years to fifty years; (3) the trial court would 

decide whether the prison sentences would be served concurrently or 

consecutively; and (4) if Doan had a prior conviction, it could increase the 

sentence or prevent the court from suspending the sentence. Id. at 8. 
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[10] As the hearing continued, the trial court clarified that Doan was pleading guilty 

to knowingly or intentionally breaking and entering the dwelling of N.B. with 

intent to commit the felony of theft therein, and that said act resulted in serious 

bodily injury to N.B. Id. at 7. Additionally, Doan was pleading guilty to 

knowingly or intentionally taking property from the presence of N.B. by using 

or threatening the use of force or by putting N.B. in fear, and that said act 

resulted in serious bodily injury to N.B. Id. The trial court accepted Doan’s

plea of guilty to both Class A felony burglary and Class A felony robbery. Id. at 

13. 

[11] On appeal, Doan does not deny that he committed the offenses to which he 

pleaded guilty. In fact, Doan’s guilty plea was a confession of guilt regarding 

all the incriminating facts alleged. See McWhorter v. State, 945 N.E.2d 1271, 

1273 (Ind. Ct. App. 2011) (“A valid guilty plea is a confession of guilt made 

directly to a judicial officer and necessarily admits the incriminating facts 

alleged.”), trans. denied. Instead, Doan maintains that “the State at some point 

in time, realized the dilemma posed by the plea agreement,” and that “[i]n an 

effort to resolve this dilemma, the State, at sentencing asked the Court to 

change the conviction for Burglary from an ‘A’ felony to a ‘B’ felony to avoid 

the obvious problem.” Appellant’s Br. at 6. Doan maintains that by conceding 

to the State’s request, the trial court removed the double jeopardy violation, and 

subjected Doan to the maximum sentence. Id. 

[12] By arguing that the trial court’s “modification” subjected him to the maximum 

sentence, Doan suggests that he consciously decided to plead guilty to two 
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crimes that were enhanced to Class A felonies on the basis of the same 

underlying injury, knowing that the trial court could not order these sentences 

to run consecutively. Therefore, when the trial court reduced the Class A 

felony burglary to Class B felony burglary, Doan was deprived of the benefit of 

his plea bargain. We remind Doan that in his plea agreement, he granted the 

trial court the discretion to sentence him to the maximum sentence allowed. 

The trial court’s imposition of the maximum sentence allowed did not deny 

Doan the “benefit” of his plea agreement. 

[13] As Doan correctly notes, once a court accepts a plea agreement, the court is 

bound by the terms of the agreement. Ind. Code § 35-35-3-3(e); Ennis v. State, 

806 N.E .2d 804, 809 (Ind. Ct. App. 2004) (citing Bennett v. State, 802 N .E.2d 

919, 921-22 (Ind. 2004)). “By the same token, it is also the general, if not 

unanimous, rule that a trial court has the power to vacate an illegal sentence 

and impose a proper one, even if doing so results in an increased sentence after 

the erroneous sentence has been partially executed and regardless of whether 

the sentencing error occurred following a trial or a guilty plea.” Id. (internal 

quotation marks omitted). Although Doan pleaded guilty to two Class A 

felonies, the trial court was still obligated to impose a sentence that did not 

punish Doan twice for the injury sustained by N.B.

[14] Our court’s opinion in Scott v. State, 986 N.E.2d 292 (Ind. Ct. App. 2013)

informs our decision. 

[T]he State charged Scott with Count I, Class B felony operating a 

vehicle with a BAC of at least 0.18 g/dl causing death; Count II, Class 
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B felony resisting law enforcement causing death; Count III, Class C 

felony reckless homicide; and Count IV, Class C felony criminal 

recklessness. On August 21, 2007, Bruce Parent entered his 

appearance as Scott’s trial counsel. . . . Scott pled guilty to all counts 

without benefit of a plea agreement. 

On May 9, 2008, the trial court accepted Scott’s pleas to Counts I and 

II but not for Counts III and IV, finding that Counts III and IV were 

subsumed into Counts I and II. The trial court sentenced Scott to 

fifteen years of incarceration each for Counts I and II, the sentences to 

be served consecutively . . . . Scott did not appeal his sentence.

On September 19, 2011, Scott filed a PCR petition [alleging] that he

received ineffective assistance of trial counsel and that the imposition 

of consecutive sentences for Counts I and II constituted fundamental 

error. During the hearing on Scott’s PCR petition, Parent testified 

regarding the advice he had given Scott. Parent testified that he 

advised Scott that he would only be sentenced for Counts I and II and 

that the maximum sentence he could receive would be thirty years. 

Scott, 986 N.E.2d at 293-94. The post-conviction court denied Scott’s PCR 

petition. 

[15] On appeal, this court found that Scott’s trial counsel was ineffective when he 

advised Scott, in connection with his plea agreement, that the maximum 

sentence Scott could receive was thirty years. The court reasoned as follows:

In Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002), the Indiana 

Supreme Court held generally that the same harm cannot be used to 

elevate multiple convictions. See Pierce, 761 N.E.2d. at 830 (“[W]e 

have long adhered to a series of rules of statutory construction and 

common law that are often described as double jeopardy, but are not 

governed by the constitutional test set forth in Richardson [v. State, 717 

N.E.2d 32 (Ind. 1999)]. Among these is the doctrine that where a 

burglary conviction is elevated to a Class A felony based on the same 

bodily injury that forms the basis of a Class B robbery conviction, the 

two cannot stand.”). The remedy for such a violation is to reduce one 

of the convictions to the highest level it can be without being enhanced 

by the same harm used to enhance another conviction. See id. . . . 
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Carter v. State, 424 N.E.2d 1047 (Ind. Ct. App. 1981), and Dawson v. 

State, 612 N.E.2d 580 (Ind. Ct. App. 1993), although decided before 

Pierce, are consistent with it. In those cases, this court addressed the 

question of whether one could be convicted of both operating a vehicle 

while intoxicated causing death (“OWI death”) and reckless homicide 

in a case involving one death. In Carter, this court held that one could 

not be sentenced for both where there was one homicide. 424 N.E.2d 

at 1048. The Dawson court refined the Carter holding, concluding that 

the proper remedy in such cases (at least where there was no double 

jeopardy violation) was to reduce the OWI death conviction to mere 

OWI, thereby ensuring that Dawson was not being punished twice for 

the same death. 612 N.E.2d at 585.

We conclude that Scott’s two convictions clearly fall within the 

general rule announced in Pierce and are analogous to the convictions 

addressed in Dawson and Carter. The fact of Mitchell’s death was used 

to enhance both of Scott’s convictions to Class B felonies, without 

which enhancement Scott’s BAC conviction would have been a Class 

A misdemeanor and his resisting law enforcement conviction would 

have been a Class D felony. Pursuant to Pierce and Dawson, we 

conclude that Scott’s resisting law enforcement conviction would have 

had to have been reduced to a Class D felony to avoid punishing him 

twice for Mitchell’s death, had Scott gone to trial. Therefore, the 

lengthiest sentence Scott could have received was twenty-three years. 

Scott’s trial counsel’s performance was deficient for failing to inform 

Scott of this and informing him, instead, that his maximum sentence 

could be thirty years. 

Scott, 986 N.E.2d 295-96.

[16] Each of Doan’s crimes includes evidence or facts not essential to the other. 

Doan’s admission that he broke and entered the dwelling of N.B. with intent to 

commit a felony therein supports burglary and his admission that took N.B.’s 

money, cell phone, and identification cards by putting her in fear supports the 

robbery. Doan conceded that each of these crimes constituted Class A felonies. 

N.B.’s serious bodily injury, however, can only support one enhancement. 
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[17] Here, Doan’s convictions clearly fall within the general rule discussed in Scott

and Pierce. “The remedy for such a violation is to reduce one of the convictions 

to the highest level it can be without being enhanced by the same harm used to 

enhance another conviction.” Scott, 986 N.E.2d at 295. The fact of N.B.’s 

bodily injury was used to enhance both his burglary and his robbery 

convictions, without which the highest level of Doan’s burglary of N.B.’s 

dwelling would have been a Class B felony and the highest level of his robbery 

would have been a Class C felony. Pursuant to Scott and Pierce, by keeping 

robbery as a Class A felony, on the basis of injuries sustained to N.B., the trial 

court would have had to sentence Doan for Class B felony burglary to avoid 

punishing him twice for N.B.’s serious bodily injury, as it would have done had 

Doan gone to trial. Therefore, the lengthiest sentence Doan could have 

received for his Class B felony burglary and his Class A felony robbery were 

consecutive sentences of twenty years and fifty years, respectively, for an 

aggregate of seventy years. Accordingly, the trial court did not violate the terms 

of Doan’s plea agreement when it sentenced Doan in a manner so as to avoid 

punishing him twice for N.B.’s injury. 

[18] Affirmed.

Vaidik, C.J., and Bradford, J., concur.