Antwan Jumar Love v. State of Indiana (NFP)

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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. Aug 04 2008, 10:04 am ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JASON W. BENNETT Lafayette, Indiana STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana ARTURO RODRIGUEZ II Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA ANTWAN JUMAR LOVE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 79A02-0712-CR-1068 APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Donald C. Johnson, Judge Cause No. 79D01-0612-FB-63 AUGUST 4, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION GARRARD, Senior Judge STATEMENT OF THE CASE Defendant-Appellant Antwan Jumar Love appeals the sentence imposed after he pled guilty to the Class B felony of conspiracy to commit robbery.1 We reverse and remand. ISSUE The following issue is dispositive: Whether the trial court s imposition of three years in Community Corrections as a condition of probation violates Love s plea agreement.2 FACTS AND PROCEDURAL HISTORY On December 13, 2006, Love and other individuals robbed an Igloo Frozen Custard store in Lafayette, Indiana. Love served as a scout before the robbery and as a lookout while the other individuals robbed the store. During the robbery, one individual (not Love) shot a gun into the air. The State charged Love with thirteen Class B felonies (five for robbery, a conspiracy to commit robbery, and seven for confinement with a deadly weapon), and seven Class D felonies (six for theft and one related conspiracy charge). Love pled guilty to the Class B felony conspiracy to commit robbery charge. The plea agreement, which was accepted by the trial court, stipulated that all other charges would be dismissed. The agreement further stipulated that the Court may impose whatever sentence it deems appropriate except the executed portion of the sentence, in any, shall not exceed ten years. Both sides may argue sentencing. (Appellant s App. at 65). In addition, the agreement stipulated that as a condition for any suspended sentence or probation, the defendant shall testify if called upon to do so. Id. The trial court 1 A Class B felony may carry a sentence between six and twenty years. Ind. Code § 35-50-2-5. In the alternative, Love argues that the sentence is inappropriate under Ind. App. Rule 7(B). Because we reverse and remand, we need not discuss this issue. 2 2 sentenced Love to ten years executed, three years in Community Corrections as a condition of probation, and one year on unsupervised probation. Love now appeals. DISCUSSION AND DECISION Love contends that the sentence imposed by the trial court is improper. Specifically, he argues that the sentence violates his plea agreement by imposing punitive requirements (three years in Community Corrections) not authorized by the agreement. Recently, in Tubbs v. State, No. 79A05-0802-CR-70 (Ind. Ct. App. June 19, 2008), we addressed the same issue raised in the instant case. In Tubbs, the only difference between the plea agreement provisions in the instant case was that the Tubbs plea limited the executed sentence to nine years. We first discussed our supreme court s holding in Frieje v. State, 709 N.E.2d 323 (Ind. 1999), in which the court noted the well-established law that if a court accepts a plea agreement worked out by the parties it is bound by the agreement s terms. Tubbs at 3 (citing Frieje, 709 N.E.2d at 324). We further discussed the Frieje court s holding that unless the plea agreement affords the court discretion in fixing the terms of probation, the court may not impose upon a defendant conditions that materially add to the punitive obligation. Id. (citing Frieje, id. at 325-26). We noted that Chism v. State, 807 N.E.2d 798 (Ind. Ct. App. 2004), Shaffer v. State, 755 N.E.2d 1193 (Ind. Ct. App. 2001) (Vaidik, J. concurring in result with separate opinion), and Antcliff v. State, 688 N.E.2d 166 (Ind. Ct. App. 1997) did not support the sentence imposed upon Tubbs. Id. at 4-5. We held that the specific paragraph addressing the only imposed condition for probation or a suspended sentence was at odds with any implied broad grant of discretion concerning the terms of probation in [the more general paragraph s] assertion that the court might impose whatever sentences it deemed appropriate. Tubbs at 6. We further held that Tubbs plea 3 agreement did not afford the trial court broad discretion in fixing the terms of probation. Id. Therefore, we held that the imposition of a term in Community Corrections after the expiration of the nine-year executed sentence constituted an additional substantial obligation of a punitive nature not authorized by the plea agreement. Id. The same is true in the instant case, and the three-year Community Corrections term added to Love s sentence is improper. We reverse the sentence and remand to the trial court for imposition of a sentence in accord with the terms of the plea agreement.3 Reversed and remanded. MATHIAS, J., and BAILEY, J., concur. 3 The State argues that Love waived this issue by not raising it below. As we held in Parrett v. State, 800 N.E.2d 620, 622 (Ind. Ct. App. 2003), a judge cannot impose a sentence that does not conform to the mandate of the relevant statutes. A sentence that exceeds statutory authority is illegal, constitutes fundamental error, and is subject to correction at any time. Id. (citing Lane v. State, 727 N.E.2d 454, 456 (Ind. Ct. App. 2000)). A defendant's challenge to an illegal sentence is not waived simply because that illegal sentence was imposed pursuant to a plea agreement. Id. at 623. 4

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