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Thursday, June 05, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Larry D. Russell, Jr. v. State of Indiana, an 11-page opinion, Judge Najam writes:

Larry D. Russell, Jr. appeals his sentence following his convictions for five counts of neglect of a dependent, as Class C felonies, and two counts of criminal confinement, as Class C felonies, pursuant to a guilty plea. Russell presents a single issue for our review, namely, whether the trial court sentenced Russell as provided in the plea agreement. But our resolution of this issue requires us to address a more fundamental issue sua sponte, namely, whether Russell’s plea agreement is void and unenforceable as a matter of law. [ft. On April 2, 2014, we ordered the parties to file supplemental briefs on this issue.]

We hold that the sentencing provision in Russell’s plea agreement is contrary to law, and we reverse and remand with instructions. * * *

In sum, the plea agreement and sentence were based on the faulty premise that Russell’s sentence must be limited to ten years under Indiana Code Section 35-50-1-2(c). Thus, the sentence imposed pursuant to the plea agreement was an erroneous sentence, and we cannot uphold Russell’s plea agreement with the sentencing cap intact. See Lee, 816 N.E.2d at 38. We reverse Russell’s sentence and remand to the trial court with the following instructions: on remand, Russell shall first have the option to ratify and proceed with the current plea agreement without the illegal sentencing limitation. If he chooses that option and enters an open plea on all five counts, the trial court shall have total discretion in resentencing Russell, and he would face a possible maximum sentence of fifty-six years.5 If he does not exercise that option within thirty days after this opinion has been certified (unless extended by the trial court), the plea agreement shall be vacated. See, e.g., Alvey v. State, 911 N.E.2d 1248, 1251 (Ind. 2009) (holding that the defendant had the option to keep his plea agreement without an unenforceable provision).

NFP civil opinions today (0):

NFP criminal opinions today (2):

Curtis Oakes v. State of Indiana (NFP)

Keith Scruggs v. State of Indiana (NFP)

Posted by Marcia Oddi on June 5, 2014 10:43 AM
Posted to Ind. App.Ct. Decisions