ATTORNEY S FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana



## IN THE

COURT OF APPEALS OF INDIANA

WILLIAM PAUL SALLEE, JR., )

)

Appellant

- Defendant, )

)

vs. ) No. 90A05

- 1303

- CR

- 151

)

STATE OF INDIANA, )

)

Appellee

- Plaintiff. )

APPEAL FROM THE WELLS CIRCUIT COURT

The Honorable Kenton W. Kiracofe, Judge

Cause Nos. 90C01

- 1211

- FB

- 23, 90C01

- 1212

- FB

- 25

December 3, 2013

MEMORANDUM DECISION

– NOT FOR PUBLICATION

MATHIAS, Judge

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.2 William Paul Sallee, Jr., (“Sallee”), pleaded guilty in Wells Circuit Court to two

counts of Class B felony burglary. On appeal, Sallee claims that the trial court failed to

abide by the terms of the plea agreement when it sentenced him to consecutive terms of

ten years incarceration on each count, for an aggregate term of twenty years.

We affirm.

Facts and Procedural History

On Novemb er 28, 2012, the State charged Sallee with one count of Class B felony

burglary of a residence, specifically, an apartment in a duplex. On December 17, 2012,

the State charged Sallee with another count of Class B felony burglary of a place of

worship. Sa llee was charged along with co

- defendants Brittany Gutierrez (“Gutierrez”)

and Travis Dollarhite (“Dollarhite”). On February 6, 2013, Sallee entered into a plea

agreement with the State whereby he agreed to the following:

Defendant shall enter a plea of guilty in 90C01

- 1211

- FB

- 000023 to Count

I, Burglary, class B felony and in 90C01

- 1212

- FB

- 000025 to Count I,

Burglary, class B felony. Sentencing shall be left to the discretion of the

Court, with the State making no specific recommendation at sentencing.

Any sentences in 90C01

- 1211

- FB

- 000023 and 90C01

- 1211

- FB

- 000025

shall be served concurrently, if defendant agrees to testify against co

defendants, Travis Dollarhite and Brittany Gutierrez, in both case[s] at any deposition, hearing or trial

.

Appellant’ s App. p. 46 (emphasis added). The trial court accepted the plea and set a

hearing date for sentencing.

In the pre

- sentence investigation, Sallee told the probation officer preparing the

pre

- sentence investigation report (“PSIR”) that he was alone during the burglary of the

church, but used the plural “we” when discussing the crime. When confronted with this

apparent contradiction, Sallee stated that “this is his crime and he does not plan to be a3 ‘snitch’.” PSIR p. 5. When the probation officer remind ed Sallee of the terms of his plea

agreement, Sallee claimed not to recall any provision requiring him to testify against his

co

- defendants. When the probation officer asked Sallee about the burglary of the

dwelling, he admitted to being in the adjoining apartment and the attic, but claimed he

was too big to fit through the hole in the attic that led to the other apartment. He also

claimed that neither he nor anyone else went into the apartment and that “the evidence

the police are claiming they have is f alse, or at least not from the defendant or

accomplices.” Id

.

At the March 20, 2013 sentencing hearing, the trial court noted Sallee’s apparent

unwillingness to te stify against his co

- defendants and asked Sallee’s counsel if Sallee was

“going to take th at opportunity in this plea?” Tr. p. 32. Sallee’s counsel responded:

That is correct. I discussed that with Mr. Sallee and confirmed with him

again this morning. He doesn’t want to take that step which would call for

it to be served concurrently by ag reement. He does intend on testifying

truthfully if subpoenaed to testify, he’s not going to perjure himself, but he

does not want to take the affirmative step to do that voluntarily.

Id

.

The trial court then asked if Sallee had been deposed, and the State told the court

that Sallee had not yet been deposed. The following colloquy then occurred:

COURT: Mr. Sallee, I want to make sure you understand [that] the

terms of your plea agreement indicate that if you testify

against two co

- defendants, Travi s Dollarhite and Brittany

Gutierrez

—

[STATE]: Brittany Gutierrez has already testified, plead guilty and

testified of the incident, so

—

COURT: That may be, but the terms of the plea agreement, Mr. Sallee,

are that if you agree to testify against the co

- def endants in

both cases, any deposition, hearing or trial, the Court under4 the terms of the plea agreement theses [sic] or correct

sentences in these two cases are to be served concurrently. In

reading your presentence investigation report you indicated

. .

. that you did not want to be a snitch and do not want to

testify against anyone. You can’t have it both ways. If you

want me to sentence you concurrently then you have to

comply with the terms of the plea agreement[.] [I]f you don’t

then it’s going to be left to the discretion of the Court, do you

understand that sir?

[SALLEE]: Yes.

COURT: So are you going to acknowledge then sir that the co

defendants, Travis Dollarhite and Brittany Gutierrez that you

will cooperate in the, that you, that they wer e a part of this

crime, this burglary you committed?

[SALLEE]: I know about them going into the apartment at all [sic].

Tr. pp. 32

- 33. The trial court then proceeded to sentence Sallee to consecutive terms of

ten years on each count. Sallee now app eals.

Discussion and Decision

It is well settled that a plea agreement is contractual in nature and binds the

defendant, the State, and the trial court. Lee v. State

, 816 N.E.2d 35, 38 (Ind. 2004)

(citing Pannarale v. State

, 638 N.E.2d 1247, 1248 (Ind. 1994)). “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 a plea agreement, it shall be bound

by its terms.’” Pannarale

, 638 N.E.2d at 1248 (Ind. 1994) (quoting Ind. Code § 35

- 35

- 3

-

3(e)); accord Lee

, 816 N.E.2d at 38.

In the present case, Sallee does not claim that his plea agreement is invalid; he

instead claims that the trial court failed to sentence him within the terms of the plea

ag reement. That is, he claims that he did not actually state that he would not testify5 against his co

- defendants and that the trial court was therefore bound to sentence him to

concurrent sentences. We disagree.

In the PSIR, Sallee clearly indicated that he did not want to testify against his co

defendants because he did not want to be a “snitch.” He also claimed that he was the

only one involved in the burglaries and that the evidence the police had was “false.” He

even denied knowledge of the provisio n of the plea agreement whereby he would receive

concurrent sentences. The trial court read this report and asked Sallee’s counsel directly

if Sallee was going to take advantage of the opportunity to have his sentences to be

served concurrently. In no un certain terms, Sallee’s counsel stated, “That is correct. I

discussed that with Mr. Sallee and confirmed with him again this morning. He doesn’t

want to take that step which would call for it to be served concurrently by agreement .”

Tr. p. 32 (emphasis added).

Sallee focuses on the next portion of his counsel’s statement: that Sallee would

testify truthfully if subpoenaed. However, this does not necessarily mean that Sallee

would testify against his co

- defendants. Indeed, he had already indicated in the PSIR that

the evidence the police had against his co

- defendants was “false.”

Moreover, the plea agreement stated that Sallee would receive concurrent

sentences “if [he] agrees to testify against co

- defendants.” Appellant’s App. p. 46

(emphasis added)

. Clearly, Sallee was not willing to testify voluntarily against his co

defendants. If the State was forced to subpoena Sallee in order to get him to testify, then

the trial court could rightly conclude that Sallee did not agree to testify against his co

defendants. Sallee’s statement to the trial court that “I know about them going into the6 apartment at all,” is at best ambiguous. 1 Tr. p. 32. At the very least it does not clearly

show that he had changed his mind and agreed to testify against his co

- d efendants.

Under these facts and circumstances, we cannot say that the trial court erred in

concluding that Sallee had not “agreed” to testify against his co

- defendants.

Accordingly, the trial court did not err by sentencing Sallee to consecutive, as op posed to

concurrent, terms of incarceration.

Affirmed.

BRADFORD, J., and PYLE, J., concur.

1 In fact, this sentence makes little sense as transcribed; it is much more idiomatic if Sallee had actually

said, “I don’t know about them going into the apart ment at all,” which is consistent with his statements in

the PSIR. Regardless, even as transcribed, it does not show that Sallee was willing to testify against his

co

- defendants.