Court of Appeals of Indiana | Opinion 22A01-1604-CR-856 | September 15, 2017 Page 1 of 14

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jacob O. Robinson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 15, 2017

Court of Appeals Case No.

22A01-1604-CR-856

Appeal from the Floyd Circuit 

Court

The Honorable J. Terrence Cody, 

Judge

Trial Court Cause No.

22C01-1402-FD-377

Pyle, Judge.
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Statement of the Case

[1] Jacob O. Robinson (“Robinson”) appeals the sentence imposed following his 

guilty plea to Class D felony attempted residential entry1 and his admission to 

being an habitual substance offender.2 Robinson argues that: (1) the trial court 

abused its discretion by denying his motion to continue his sentencing hearing; 

and (2) his sentence is inappropriate. However, we need not address these 

issues because we sua sponte conclude that Robinson’s habitual substance 

offender adjudication and enhancement of the sentence for a non-substance 

offense was contrary to statute. Because the trial court entered an illegal 

sentence and the parties’ plea agreement—which left sentencing open to the 

trial court’s discretion—does not allow the trial court to lawfully enter an 

habitual substance offender sentencing enhancement, we reverse and remand to 

the trial court for further proceedings. 

[2] We reverse and remand.

Issue3

Whether this case should be reversed and remanded to the trial court 

because the habitual substance offender adjudication and 

enhancement of a non-substance conviction was contrary to statute. 

 

1

IND. CODE §§ 35-43-2-1.5; 35-41-5-1. We note that, effective July 1, 2014, a new version of this residential 

entry statute was enacted and that Class D felony attempted residential entry is now a Level 6 felony. 

Because Robinson committed his crime in February 2014, we will apply the statute in effect at that time.

2

I.C. § 35-50-2-10. Effective July 1, 2014, this habitual substance offender statute was repealed.

3 Because we conclude that the trial court entered an illegal sentence that requires a remand to address the 

sentencing error, we will address neither Robinson’s appellate challenges nor the State’s request to reconsider 

our motions panel’s order that denied the State’s previous motion to dismiss.
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Facts

[3] On February 21, 2014, Robinson fled on foot from the police, and, in an 

attempt to evade the police, approached the door of a stranger’s home, beat on 

the door to try and gain entry, and broke the door knob. Thereafter, the State 

charged Robinson, under cause number 22C01-1402-FD-377 (“Cause 377”), 

with the following: (1) Class D felony attempted residential entry; (2) Class D 

felony possession of methamphetamine; (3) Class D felony unlawful possession 

of a syringe; (4) Class A misdemeanor possession of marijuana; (5) Class A 

misdemeanor possession of paraphernalia; and (6) Class A misdemeanor 

resisting law enforcement. The State also alleged that Robinson was: (7) an 

habitual offender; and (8) an habitual substance offender.4

[4] A few months later, in November 2014, while Robinson was out on bond, he 

fled from the police while driving his car. The State then charged him, under 

cause number 22C01-1411-F6-1932 (“Cause 1932”), with Level 6 felony 

resisting law enforcement and alleged that he was an habitual offender. 

[5] On May 1, 2015, Robinson entered into two different written “Blind” or open 

plea agreements with the State for Cause 377. Both plea agreements were file 

stamped by the trial court clerk. (App. Vol. 1 at 58-60, 75-77). In one of the 

 

4 The habitual offender allegation listed three prior convictions, and the habitual substance offender 

allegation contained six prior substance convictions.
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plea agreements, Robinson agreed to plead guilty to Count 2, Class D felony 

possession of methamphetamine, and Count 8, the habitual substance offender 

allegation. In exchange, the State agreed to dismiss all remaining charges and 

the habitual offender allegation against him. In the other plea agreement, 

Robinson agreed to plead guilty to Count 1, Class D felony attempted 

residential entry, and Count 8, the habitual substance offender allegation. In 

exchange, the State agreed to dismiss all remaining charges and the habitual 

offender allegation against him. In both of these plea agreements, there was a 

provision marked to indicate that Robinson had agreed to waive his right to 

appeal. Specifically, the provision provided, “Defendant waives right to appeal 

and post-conviction relief.” (App. Vol. 1 at 60, 77).5 Robinson, his counsel, 

and the prosecutor signed both plea agreements.

[6] That same day, the parties met for a change of plea hearing. At the beginning 

of the hearing, however, Robinson’s counsel informed the trial court that 

Robinson had had a “change of heart” and had decided that he wanted to 

 

5

In Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008), our Indiana Supreme Court explained that “[p]rovisions in 

a plea agreement that attempt to waive the right to post-conviction relief are void and unenforceable.” 

Despite the fact that the waiver of post-conviction relief is unenforceable, the inclusion of that waiver does 

not invalidate the waiver of the right to direct appeal. See Perez v. State, 866 N.E.2d 817, 819 (Ind. Ct. App.

2007) (enforcing a defendant’s waiver of direct appeal provision in his plea agreement that also contained a 

waiver of post-conviction relief), trans. denied. However, our supreme court has held that “the waiver of the 

right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law 

and the Defendant did not bargain for the sentence.” See Crider v. State, 984 N.E.2d 618, 619 (Ind. 2013). 

Here, Robinson pled guilty pursuant to an open plea agreement and, in the absence of an explicit agreement 

to a particular or specific sentence, “he was entitled to presume that the trial court would sentence him in 

accordance with the law.” Id. at 625. Because we conclude that the trial court’s sentencing was contrary to 

law, we further conclude that the waiver of appeal provision in Robinson’s plea agreement is invalid and 

unenforceable.
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proceed to trial. (Tr. 3). The State did not object to Robinson’s request, and 

the trial court later set Robinson’s case for trial on July 27, 2015.

[7] On July 23, 2015, Robinson pled guilty to Count 1, Class D felony attempted 

residential entry, and he admitted that he was an habitual substance offender as 

contained in Count 8. In return for Robinson’s guilty plea, the State dismissed 

the remaining five charges and the habitual offender allegation against him. 

During the plea hearing, Robinson acknowledged that was leaving sentencing 

open to the trial court’s discretion.6 The trial court accepted his guilty pleas and 

entered judgments of conviction.7 At the end of the plea hearing, the trial court 

set Robinson’s sentencing hearing for September 24, 2015 at 10:30 a.m. The 

trial court also instructed Robinson, who was still out on bond, to report to the 

probation department so that a presentence investigation report (“PSI”) could 

be compiled. 

[8] Thereafter, the probation department contacted Robinson and scheduled a PSI 

interview on September 8, 2015, but he failed to show up for the appointment. 

Robinson also failed to show up for the second scheduled PSI interview on 

September 22, 2015. Nevertheless, the probation department compiled a PSI, 

which revealed that thirty-nine-year-old Robinson had an extensive criminal 

 

6 These terms were the same as contained in the written plea agreement that Robinson signed on May 1, 

2015. 

7 That same day, Robinson also pled guilty to the Level 6 felony resisting law enforcement in Cause 1932.
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history over the past twenty years, had violated probation multiple times, and 

had his probation revoked on at least four occasions. 

[9] On September 24, 2015, the morning of sentencing, Robinson sent a text to his 

counsel at 6:34 a.m. In the text, Robinson asked his counsel to continue the 

sentencing hearing because he had a real estate closing “coming up in the next 

few days” and “wish[ed] to get his ducks in line.” (Tr. 25). Robinson told his 

counsel that he “should get this case laid over.” (Tr. 25).

[10] That same morning, Robinson’s counsel had a bench trial for a different 

defendant in Clark County, and that trial lasted until after the scheduled 10:30 

a.m. start time for Robinson’s sentencing hearing. Around 11:00 a.m., 

Robinson’s counsel faxed the Floyd Circuit Court a motion to continue 

Robinson’s sentencing hearing “on the grounds that counsel [wa]s hopelessly 

detained in the Clark Circuit Court #3.” (App. Vol. 1 at 63). Shortly after 

sending the fax, Robinson’s counsel returned to Floyd County and appeared in 

the trial court for Robinson’s sentencing hearing. Counsel explained to the trial 

court the reason for his own tardiness. Robinson’s counsel acknowledged that 

Robinson knew about the sentencing hearing and informed the trial court about 

Robinson’s text requesting counsel to continue the sentencing hearing. Counsel 

also stated that he had tried to call Robinson multiple times, but Robinson’s 

phone did not accept phone calls and only accepted texts.8 The trial court 

 

8 Robinson’s counsel was unable to text due to a problem with his texting service provider.
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denied the motion for a continuance. When doing so, the trial court noted its 

reasoning, in relevant part, as follows:

Mr. Robinson was in Court on the day that this hearing was 

scheduled and he blew off two appointments with . . . the 

probation officer . . . in preparation of the [PSI] Report and that 

leads me to the conclusion that Mr. Robinson isn’t taking this 

matter seriously[.]

(Tr. 27). The trial court proceeded to the sentencing hearing, and Robinson’s 

counsel presented argument on his behalf. 

[11] Prior to the trial court’s imposition of Robinson’s sentence, the prosecutor 

pointed out that there was an anomaly in the fact that Robinson had pled guilty 

to the attempted residential entry charge and the habitual substance offender 

allegation. The prosecutor stated that “in order for the Habitual Substance 

Offender to work he needed [to] have plead[ed] to a substance related offense” 

and that “[t]he Attempted Residential Entry was more appropriate for the 

Habitual Offender enhancement” with which Robinson had also been charged. 

(Tr. 32). The prosecutor pointed out that Robinson had agreed to plead to both 

during his plea hearing and stated that it “mentioned it now so that way down 

the road [Robinson] can’t come back and file Post[-]Conviction Relief on the 

basis that he . . . should not have plead[ed] to the Habitual Substance Offender 

because his underlying offense wasn’t substance abuse related.” (Tr. 33). 

Robinson’s counsel then asked whether the State was asking the trial court not 

to sentence Robinson on the habitual substance offender count, and the 

prosecutor stated:
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Well I – I think by just looking at this right now I think we need 

to revisit the whole thing unfortunately because our agreement 

was for him to plead guilty to a felony and then be convicted of 

a[n] habitual offender count. I think the attempt probably was 

for him to plead either to Residential Entry and Habitual 

Offender or the Possession of Methamphetamine for instance 

and plead to the Habitual Substance Offender[.] But we have 

one from one group and one from the other group I don’t see 

how we can do that unless he’s agreeing. . [. .]

(Tr. 33). The trial court interrupted and stated that it was “just not inclined to 

at this point to reopen this matter” when Robinson had failed to show for the 

sentencing hearing and that it was “inclined to move on[.]” (Tr. 34). The trial 

court further stated that it had “a method of dealing with this” and would “just 

go forward with it.” (Tr. 34). The trial court then reiterated its acceptance of 

Robinson’s guilty plea to the Class D felony attempted residential entry and the 

habitual substance offender allegation, and it imposed a three (3) year executed 

sentence for Robinson’s Class D felony attempted residential entry conviction.9 

The trial court withheld determining the habitual substance offender 

enhancement until “when and if” Robinson appeared in person. (Tr. 35). The 

trial court stated that it would “figure . . . out later whether there w[ould] be 

additional time or not.” (Tr. 36). The trial court also issued a warrant for 

Robinson’s arrest for his failure to appear at the sentencing hearing and released 

his bond. 

 

9

For Robinson’s Level 6 felony resisting law enforcement in Cause 1932, the trial court imposed a sentence 

of two (2) years and ordered that it be served consecutively to his Class D felony attempted residential entry 

conviction in this cause.
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[12] In January 2016, Robinson was arrested. Thereafter, on March 3, 2016, the 

trial court held the supplemental sentencing hearing to determine the habitual 

substance offender enhancement. At that hearing, Robinson was represented 

by new counsel, and the State had a different prosecutor. The trial court, 

however, did not address nor discuss the concern raised from the prior 

sentencing hearing. The State recommended that the trial court sentence 

Robinson to three years on the habitual substance offender allegation and “run 

[it] consecutive” to the Class D felony attempted residential entry sentence. 

(Tr. 43). The trial court stated that it was going to adopt the State’s 

recommendation, and it then imposed a separate sentence of three (3) years 

with one and one-half (11⁄2) years executed and one and one-half (11⁄2) years 

suspended to probation. When imposing this sentence, the trial court 

acknowledged that the habitual substance offender statute “says a minimum 

fixed term of imprisonment . . . that would tend to imply no probation[,]” but it 

stated that “case law on that topic is mixed[.]” (Tr. 48). The trial court also 

recommended that Robinson be placed in the Purposeful Incarceration 

Program and stated that it would consider a modification of his sentence upon 

completion of that program. Robinson now appeals.10 

 

10 While briefing occurred during this appeal, the State filed a motion to dismiss Robinson’s appeal, arguing 

that his notice of appeal was untimely. Robinson filed a response and a motion for damages, arguing that the 

State’s motion to dismiss was frivolous and filed in bad faith. Our motions panel denied the State’s motion 

to dismiss and denied Robinson’s motion for damages. As previously noted, the State requests this Court to 

reconsider our motions panel’s order, and we decline this request. 
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Decision

[13] Robinson argues that: (1) the trial court abused its discretion by denying his 

motion to continue his sentencing hearing; and (2) his sentence is inappropriate. 

We will not, however, address these issues because we sua sponte conclude that 

Robinson’s habitual substance offender adjudication and enhancement of a 

non-substance offense was illegal or contrary to statute, making remand 

necessary. See Reffett v. State, 844 N.E.2d 1072, 1073 (Ind. Ct. App. 2006) 

(explaining that “before we may consider the appropriateness of [a] sentence, 

we must first consider the legality of [the] sentence”). See also Young v. State, 

901 N.E.2d 624, 626 (Ind. Ct. App. 2009) (reviewing sua sponte the legality of a 

defendant’s sentence where the trial court erred when sentencing on the 

habitual substance offender enhancement), reh’g denied, trans. denied. “A 

sentence that is contrary to or violative of a penalty mandated by statute is 

illegal in the sense that it is without statutory authorization. A sentence that 

exceeds statutory authority constitutes fundamental error.” Reffett, 844 N.E.2d 

at 1073 (internal quotation marks and citations omitted). “It is the duty of 

appellate courts to bring illegal sentences into compliance[.]” Devaney v. State, 

578 N.E.2d 386, 389 (Ind. Ct. App. 1991). 

[14] At the time of Robinson’s offenses, the habitual substance offender statute, 

INDIANA CODE § 35-50-2-10, provided that the State could “seek to have a 

person sentenced as an habitual substance offender for any substance offense by 

alleging, on a page separate from the rest of the charging instrument, that the 

person has accumulated two (2) prior unrelated substance offense convictions.” 
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IND. CODE § 35-50-2-10(b) (emphasis added). A “substance offense” was 

defined as a “Class A misdemeanor or felony offense in which the possession, 

use, abuse, delivery, transportation, or manufacture of alcohol or drugs is a 

material element of the crime.” I.C. § 35-50-2-10(a)(2) (emphasis added). Once a 

defendant was determined to be an habitual substance offender—whether at 

trial or by guilty plea—the trial court was then required to “sentence the person 

found to be an habitual substance offender to an additional fixed term of at least 

three (3) years but not more than eight (8) years imprisonment,” with that 

sentence enhancement to be added to the sentence imposed on the underlying 

substance offense. I.C. § 35-50-2-10(f). See also Bauer v. State, 875 N.E.2d 744, 

747 (Ind. Ct. App. 2007) (“A habitual substance offender finding is not a 

separate crime but an enhancement of the sentence for the underlying crime to 

which it is attached.”), trans. denied; Howard v. State, 873 N.E.2d 685, 690-91 

(Ind. Ct. App. 2007) (explaining that an habitual offender receives one sentence 

comprised of “two components—the sentence for the underlying conviction 

and the habitual offender enhancement”). If, however, the trial court had 

found that three (3) or more years had elapsed since the defendant had been 

discharged from probation, imprisonment, or parole for the last unrelated 

substance offense conviction, then the court could have reduced the additional 

fixed term to as little as one year. I.C. § 35-50-2-10(f)(1). 

[15] Here, Robinson pled guilty to the non-substance offense of attempted 

residential entry and admitted to being an habitual substance offender. The 

trial court imposed a three (3) year sentence for the Class D felony non-
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substance conviction and a separate three (3) year sentence, with one and onehalf (11⁄2) years executed and one and one-half (11⁄2) years suspended to 

probation, for the habitual substance offender adjudication.

[16] The most problematic aspect of the trial court’s sentencing in this case is the 

fact that the law does not allow for an habitual substance offender enhancement 

to be attached to a non-substance offense.11 See I.C. § 35-50-2-10. We 

recognize that 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.” Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) 

(quoting Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987)). Here, however, 

Robinson pled guilty under an open plea and did not agree to a specified 

sentence. Thus, the trial court was required to sentence Robinson in 

accordance with the prevailing law and statutes at that time. See Crider v. 

State, 984 N.E.2d 618, 625 (Ind. 2013) (explaining that “the ‘default rule’ for 

 

11 We note that, had the underlying conviction properly been a substance offense, the trial court also 

erroneously entered a separate sentence for the habitual substance offender adjudication instead of enhancing 

the underlying offense, see Reffett, 844 N.E.2d at 1074, and it erroneously suspended half of the habitual 

substance offender enhancement. Compare Lindsey v. State, 877 N.E.2d 190, 194 (Ind. Ct. App. 2007) 

(holding that an “[habitual substance offender] enhancement must be executed and cannot be suspended to 

probation”), trans. denied; Howard, 873 N.E.2d at 690-91 (explaining that the prohibition against suspension of 

an habitual offender enhancement applied only to habitual offender enhancement, not the underlying 

conviction); Reffett, 844 N.E.2d at 1074 (holding that “an enhanced sentence under the habitual offender 

statute . . . may not be suspended”); and Devaney, 578 N.E.2d at 388-89 (pointing out that the “habitual 

substance offender statute require[d] that the court ‘shall’ sentence the defendant ‘to an additional fixed term’ 

of between three and eight years” and reasoning that “permitting the suspension of an enhanced sentence 

imposed under this statute would defeat the clear intent of the legislature to punish and deter recidivistic 

conduct”) with Bauer, 875 N.E.2d at 749 (holding that suspension of a sentence under INDIANA CODE § 35-

50-2-2 applied to the minimum sentence of the underlying conviction plus the minimum enhancement of the 

habitual substance offender enhancement); and Young, 901 N.E.2d at 626 (applying Bauer). We note that, 

under either line of cases, the trial court erred because it suspended half of the habitual substance offender 

enhancement only and not any portion of the underlying conviction.
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plea agreements is that sentences will be determined and imposed legally, where 

there is no agreement otherwise”). But, the parties’ plea agreement resulted in a 

situation under which the trial court had no legal or statutory authority to enter 

a sentence on the habitual substance offender adjudication.12 Nevertheless, the 

trial court imposed a fully-executed sentence for the Class D felony nonsubstance conviction and a separate, partially-suspended sentence for the 

habitual substance offender adjudication. 

[17] Because the trial court entered an illegal sentence, we must remand to the trial 

court for further proceedings. Generally, when the trial court errs in its 

sentencing on an habitual substance offender enhancement, we would remand 

for the trial court to resentence in accordance with the law. See, e.g., Young, 901 

N.E.2d at 626 (remanding for resentencing to correct illegal sentence and error 

with suspended habitual substance offender enhancement); Bauer, 875 N.E.2d 

at 747 (remanding case where the trial court erroneously treated an habitual 

substance offender enhancement as a separate sentence). Here, however, it was 

the plea agreement itself that was contrary to legal and statutory authority. A 

plea agreement is contractual in nature, and “a contract made in violation of a 

statute is void and unenforceable.” State v. Arnold, 27 N.E.3d 315, 321 (Ind. Ct. 

App. 2015) (quoting Lee, 816 N.E.2d at 38), reh’g denied, trans. denied. 

 

12 As noted in the facts, this lack of sentencing authority was brought to the trial court’s attention by the 

prosecutor during the sentencing hearing when he stated that the trial court and the parties “need[ed] to 

revisit the whole thing unfortunately because our agreement was for [Robinson] to plead guilty to . . . either 

to Residential Entry and Habitual Offender or the Possession of Methamphetamine for instance and plead to 

the Habitual Substance Offender[.]” (Tr. 33). However, the trial court, apparently frustrated with Robinson 

for failing to appear at the PSI interview and the sentencing hearing, stated that it was “just not inclined to at 

this point to reopen this matter” and that it was “inclined to move on[.]” (Tr. 34).
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Accordingly, we vacate the sentence and plea agreement and remand with 

instructions to enter a new plea agreement and sentence that comply with the 

relevant statutory authority, or, if the parties cannot reach such an agreement, 

then the trial court should set the matter for further proceedings. See Arnold, 27 

N.E.3d at 322 n.4 (noting that a “defendant is not put in jeopardy by a void 

judgment and may be re-prosecuted on the charge”).

[18] Reversed and remanded.13

Baker, J., and Mathias, J., concur. 

 

13 We recognize that claims of error regarding a guilty plea are usually reserved for post-conviction relief. See 

Johnson v. State, 734 N.E.2d 242, 247 (Ind. 2000). However, given the specific facts of this case—including 

the fact that the illegal sentence imposed in this case was a direct result of the guilty plea being entered 

contrary to statute and the State’s attempt during the sentencing hearing to have the trial court remedy the 

statutory problem with the guilty plea—we address the guilty plea in conjunction with our review of the 

legality of the sentence. Indeed, even if we were to remedy the sentencing anomaly by vacating the habitual 

substance offender enhancement, we would also vacate the plea agreement because it is clear from the record 

on appeal that eliminating the illegal provision would “frustrat[e] the basic purpose of the contract” and 

would change the sentence for which the parties had bargained. See Arnold, 27 N.E.3d at 322 (explaining 

that, where an habitual offender enhancement could not be eliminated from a plea agreement without 

frustrating the basic purpose of that agreement, the entire plea agreement also had to be vacated).