Edsall v. State

983 N.E.2d 200

Jim A. EDSALL, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 57A03–1205–CR–240.

Court of Appeals of Indiana.

Feb. 18, 2013.

Jim A. Edsall, Pendleton, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Jim A. Edsall (“Edsall”) pleaded guilty in January 2008 to five counts of Class A felony delivery of methamphetamine ¹ and one count of Class A felony conspiracy to manufacture methamphetamine.² In this belated appeal, Edsall raises two sentencing issues that we restate as:

I. Whether the trial court's imposition of six concurrent thirty-year terms of imprisonment at the Indiana Department of Correction (“IDOC”) was either an abuse of discretion or inappropriate based on the nature of the offense and character of the offender; and

II. Whether the trial court exceeded its statutory authority when it orderedrestitution as part of Edsall's sentence.

We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

This is Edsall's second appeal to this court. On August 3, 2006, the State charged Edsall with five counts of Class A felony delivery of methamphetamine and four counts of Class A felony conspiracy to manufacture methamphetamine. On January 4, 2008, the parties appeared for a guilty plea hearing and filed a plea agreement (“Plea Agreement”), in which Edsall agreed to plead guilty to five counts of Class A felony delivery of methamphetamine and one count of Class A felony conspiracy to manufacture methamphetamine, and the State agreed to dismiss the remaining charges. With regard to sentencing, the Plea Agreement provided:

Upon the Defendant's plea of guilty to Counts 1, 3, 4, 5, 7 and 9 he shall receive a concurrent maximum sentence of thirty (30) years in IDOC and the parties will argue all terms at sentencing.

Appellant's App. at 42. The Plea Agreement stated that the sentence imposed would be served consecutive to Edsall's sentence from a prior Michigan conviction. The trial court advised Edsall of his rights, including the range of penalties. Specifically, the trial court told Edsall that the term of imprisonment for a Class A felony ranges from twenty to fifty years with the advisory term being thirty years. The trial court also told Edsall that for each count to which he was pleading guilty there was a potential fine from zero to ten thousand dollars. There was no mention of restitution at the guilty plea hearing. Following examination of Edsall under oath to establish a factual basis, the trial court accepted the Plea Agreement, ordered the preparation of a presentence investigation report (“PSI”), and set the matter for a sentencing hearing.

In January 2008, the probation department filed Edsall's PSI with the trial court. The victim's impact statement portion of the PSI stated, “To date, a restitution request has not been received from I.M.A.G.E.³ Drug Task Force; they plan to submit a restitution amount to the prosecutor's office.” Id. at 64. Thereafter, at the February 8, 2008 sentencing hearing, the State presented Exhibit A, entitled Edsall Investigation Costs, a copy of which had been provided earlier that morning to Edsall's counsel. The trial court asked Edsall's attorney if there was “any argument or objection” to the total restitution amount, which was $19,581.40, and Edsall's counsel responded, “at this point I certainly won't stipulate to the amount,” but did not pose any objection to the exhibit or the matter of restitution being sought. Tr. at 81.

Thereafter, the State presented the testimony of Steuben County Sheriff's Deputy Tim Troyer (“Deputy Troyer”), who testified about the undercover operation in which he and at least four other law enforcement officers infiltrated, over a fifty-seven-day period, Edsall's manufacturing operation. Deputy Troyer testified that Edsall's operation was sophisticated and the largest he has ever seen in his twenty-one years of law enforcement experience. As part of the undercover operation, Deputy Troyer, known to Edsall as “Hawk,” agreed to provide pseudoephedrine pills, or “red things,” to Edsall, who would then give a portion of the finished product back to Hawk. Tr. at 89, 91, 94. According to testimony, Deputy Troyer provided a total of 16,308 red pills, in 96–count boxes, to Edsall during the investigation. State's Ex. A. Walgreens Pharmacy donated 5,520 outdated pills, and undercover officers purchased 10,788 pills at pharmacies. Exhibit A included the cost incurred to purchase the pills, and the expenses and wages of those involved. Exhibit A was admitted without objection. Tr. at 106.

Following the presentation of that evidence, counsel presented argument to the trial court regarding sentencing. Edsall's counsel expressed “concern” about the requested restitution, questioning the extent and scope of the police conduct in the undercover investigation, but he did not expressly object to the restitution request and asked the trial court to impose an executed sentence of fifteen years. Tr. at 150. The State, in turn, responded that the large-scale investigation was because Edsall's manufacturing scheme was “enormous” and “bigger than we've ever seen” in the surrounding four-county area. Id. at 154. The State asked the trial court to impose the maximum allowed under the plea agreement, thirty years, and requested the court to order “restitution figures as laid out.” Id. at 157.

The trial court identified aggravators and mitigators and determined that the “aggravating circumstances ... completely outweigh the mitigating circumstances.” Id. at 158. It sentenced Edsall to concurrent sentences of thirty years on each of the six counts, to be served consecutive to Edsall's Michigan sentence. The trial court also entered restitution judgment in the amount of $19,581.40 and imposed a $2,000.00 fine. Edsall's attorney asked the court for a reasonable period of time upon his release from Indiana Department of Correction for Edsall to take care of his financial obligations.

In August 2008, Edsall filed a pro se petition for post-conviction relief. Thereafter, in August 2011, an attorney filed an appearance on Edsall's behalf and filed a motion for permission to file a belated notice of appeal. In September 2011, the trial court denied his request to file a belated notice of appeal. Edsall appealed that decision to this court, and we reversed by unpublished decision, finding that the trial court abused its discretion when it denied his motion for permission to file a belated notice of appeal. Edsall v. State, No. 57A03–1110–CR–462, 2012 WL 1247110 (Ind.Ct.App. Apr. 11, 2012). Having received that permission, Edsall filed this appeal.

DISCUSSION AND DECISION

I. Sentencing

Edsall argues that the trial court abused its discretion by considering improper aggravating circumstances and failing to consider mitigating ones, and he also argues that the sentence was inappropriate based on the nature of the offense and character of the offender.

Initially, we must determine whether Edsall may appeal his sentence. A plea agreement in which the trial court has discretion over the length of the sentence is referred to as an “open plea.” Bowling v. State, 960 N.E.2d 837, 841 (Ind.Ct.App.2012) (citing Johnson v. State, 898 N.E.2d 290, 291 (Ind.2008)), trans. denied. Where a plea agreement leaves sentencing to the trial court's discretion, a defendant is entitled to contest on direct appeal the merits of a trial court's sentencing decision. Id. (citing Collins v. State, 817 N.E.2d 230, 231 (Ind.2004)). This includes a plea agreement wherein a defendant agrees to a sentencing cap or range. Id. However, our Supreme Court has held that a defendant can waive the right to appellate review of his sentence as a part of a written plea agreement as long as such waiver is made knowingly and voluntarily. Id.

Here, in exchange for Edsall's guilty plea to five charges of Class A felony delivery of methamphetamine and one charge of Class A felony conspiracy to manufacture methamphetamine, the State dismissed the other three Class A felony charges and agreed to a thirty-year cap on the executed portion of his sentence. The Plea Agreement stated that Edsall “shall receive a concurrent maximum sentence of thirty years in IDOC and the parties will argue all terms at sentencing.” Appellant's App. at 42. Although the Plea Agreement's use of the words “shall receive” a term of thirty years initially suggests that the terms of imprisonment was “fixed” and non-appealable, the Plea Agreement also indicated “the parties will argue all terms at sentencing,” thereby leaving some discretion to the trial court. Appellant's App. at 42.

In line with this trial court discretion, counsel for each party argued for what he believed to be an appropriate sentence length, with Edsall's counsel arguing for imposition of an executed sentence of fifteen years, and the State arguing for imposition of “the thirty years.” Tr. at 150, 157. After considering the aggravating and mitigating circumstances, the trial court determined that Edsall's convictions and the circumstances “warranty an executed sentence equivalent to the advisory sentence for a Class A Felony which is the maximum called for in the parties' Plea Agreement.” Appellant's App. at 47 (emphasis added). Based on these facts and circumstances, we believe that the Edsall's plea was an “open plea,” and Edsall is entitled to appeal his sentence.

A. Abuse of Discretion

Edsall argues that the trial court's sentence was an abuse of discretion. A trial court's sentencing decisions are discretionary and entitled to “considerable deference” by the appellate courts. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.2008). A trial court abuses its discretion if it: (1) fails “to enter a sentencing statement at all”; (2) enters “a sentencing statement that explains reasons for imposing a...